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The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

The 'dark money' showdown over this week's Supreme Court confirmation hearing

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Good morning, Early Birds. President Biden leaves for Brussels on Wednesday to attend the NATO summit. Then he'll travel to Poland and meet with Polish President Andrzej Duda on Saturday in Warsaw. Tips: earlytips@washpost.com. Thanks for waking up with us.

On the Hill

A liberal judicial advocacy group downplays its influence

Who's backing Jackson: Judge Ketanji Brown Jackson’s Supreme Court confirmation hearing, set to kick off this morning, is the latest showdown in the two parties’ long-running struggle over the composition of the court. 

It’s also a battle between the well-funded advocacy groups on both sides that pour millions of dollars into modern Supreme Court confirmation fights — and which are drawing increasing attention from lawmakers looking to defeat the other side’s nominees.

Senate Minority Leader Mitch McConnell (R-Ky.) has criticized Jackson for being backed by “fringe groups” that are “spending dark money to raise her profile” — a reference to her support from Demand Justice, a progressive group started in 2018 to push Democrats to the left on judicial issues.

“The same radicals who want to turn Democrats into the party of court-packing also badly wanted Judge Jackson for this vacancy,” he said earlier this month.

McConnell's line of attack echoes criticisms made by Sen. Sheldon Whitehouse (D-R.I.) in 2020 during Supreme Court Justice Amy Coney Barrett. Whitehouse decried the influence of conservative groups that don’t disclose their donors over Supreme Court nominations — a criticism he repeated last month in a Washington Post op-ed.

Democrats have responded by criticizing McConnell as hypocritical. But Demand Justice and other progressive legal groups have also deployed an unusual rebuttal: We’re not as powerful as you think we are.

“They’ve been at it longer,” said Brian Fallon, Demand Justice’s executive director, referring to conservative groups such as the Federalist Society and the Judicial Crisis Network. “They have way more money. And they’ve captured the court by a 6-3 margin.”

“We still have a long way to go before we’re as influential or as awash in resources as they are,” he added.

A failure to persuade

As evidence of Demand Justice’s lack of influence, Fallon pointed to its 2019 call for the next Democratic president to refrain from nominating any “corporate lawyers” to be federal judges. 

While President Biden has focused on nominating “individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys,” as his transition team put it in a letter to senators, he has continued to tap corporate lawyers — and Democratic senators have kept recommending them for judgeships in their home states.

“You look at a state like New Jersey, and the two senators there” — Democratic Sens. Cory Booker and Robert Menendez — “have been among the worst,” Fallon said. “They’ve completely ignored the guidance from Biden.”

(Maya Krishna-Rogers, a Booker spokesperson, wrote in an email that Booker believes diversity “is about more than occupational history,” citing his support for Black and Muslim federal judges. Booker has also said justices such as Jackson who have experience working as public defenders are “badly needed” on the Supreme Court.)

Demand Justice has also failed to persuade Biden or most Democrats in Congress to endorse adding four seats to the Supreme Court. And the group has irked some Democratic senators in the past with its uncompromising stands.

But some conservatives don’t buy Fallon’s protests about his group’s lack of sway. A former Demand Justice staffer, Paige Herwig, works on judicial nominations in the White House counsel’s office, as Carrie Severino, the Judicial Crisis Network’s president, pointed out.

“I see Demand Justice’s shortlist and their advocacy being what put Ketanji Brown Jackson on the map,” Severino said. “They certainly seemed to think their voices were going to be heard when they were advocating for that.”

One longtime Republican veteran of Supreme Court battles, who spoke on the condition of anonymity because they are not authorized to speak to the press, said that while conservative judicial groups might be more powerful than their progressive counterparts, their influence paled in comparison to the country's overwhelmingly liberal elite law schools.

“You really have to compare it with the Federalist Society versus most law schools, in which case the law schools are far more powerful,” the person said.

Outmatched?

Whitehouse, who held a hearing last year on the influence of “dark money” on the Supreme Court, said he agreed with Fallon that liberal groups have been outmatched by conservative ones.

“They’re the ones who have been effectual in controlling the makeup of the court and planting selected justices onto the court,” he told The Early in an interview on Friday. “There’s no such achievement on the progressive side. Yes, some groups have anonymous donors. But they haven’t accomplished much other than to express themselves.”

They're also not spending as much backing Jackson as conservative groups did supporting Barrett — at least so far.

Demand Justice has said it plans to spend about $1 million on ads on backing Jackson. Building Back Together, an outside group that supports Biden, will spend another $1 million in partnership with the Black Women's Leadership Collective and She Will Rise. Another progressive judicial group, the Alliance for Justice Action Campaign, plans to spend $250,000 to $300,000.

Judicial Crisis Network alone, meanwhile, said it spent $10 million on ads backing Barrett in 2020.

But former senator Russ Feingold (D-Wis.), who served on the Judiciary Committee and is now president of the American Constitution Society, a progressive counterpart to the Federalist Society, said progressives shouldn't try to match conservative groups dollar for dollar.

“If you try to compete against the right for money and resources, and it's an O.K. Corral or a winner-take-all approach where there are no rules, the odds are that progressives will lose out,” Feingold said. “The best thing for progressives — and, I think, for all Americans and for the Supreme Court — is if the process returns to a series of norms and rules where big money can't dominate the process.”

What to expect this week

Here's what else you need to know as the confirmation hearing gets underway:

From the courts

Supreme Court Justice Thomas hospitalized with infection, will miss oral arguments this week

Thomas admitted to Sibley: Justice Clarence Thomas ”is hospitalized with an infection and being treated with intravenous antibiotics, the Supreme Court announced Sunday night," our colleague Robert Barnes reports.

  • “Thomas, 73, was admitted to Sibley Memorial Hospital in Washington on Friday evening, according to the release, with flu-like symptoms.”
  • “'He underwent tests, was diagnosed with an infection, and is being treated with intravenous antibiotics,' the release said. ‘His symptoms are abating, he is resting comfortably, and he expects to be released from the hospital in a day or two.’”

At the White House

Russia’s aggression in Ukraine in 2014 and 2015 is shaping Biden’s actions

‘The Ukrainian government whisperer’: “The former diplomats and defense officials who visited the U.S. Naval Observatory in early 2015 were seeking a receptive audience — and they found one in Vice President Biden,” our colleagues Ashley Parker and Ellen Nakashima write. “Russia had taken over the Ukrainian territory of Crimea the previous year, and the officials urgently wanted President Barack Obama to send Ukraine advanced antitank missiles, called Javelins.”

  • “Not only would that help repel the Russian-armed separatists, they insisted, but it would serve as a powerful symbol of America’s determination to stand by a former Soviet republic that was moving steadily toward the West.”
  • “He said, ‘Okay, I’ll go down the hall,’ — meaning to the Oval Office — ‘and make the case,’” recalled Jan Lodal, a former senior Pentagon official who helped organize the meeting. But Lodal said Biden added with a smile, “You’ve got to remember my first name: It’s ‘Vice’. Spelled V-I-C-E. I’m the highest paid staff officer in the government.”
  • “Sure enough, Obama rejected the request, fearing that providing lethal aid to Ukraine would escalate tensions with Russia.”

“Now Biden, as president, is finally doing what he could not do then,” our colleagues write. “He has provided Ukraine with more than $2 billion in security assistance since the start of his administration, including small arms, body armor and other small munitions — including, of course, Javelins.”

The Media

What we’re reading:

Viral

Trolling, but in real life: Just keep peddling. 🚴

Thanks for reading. You can also follow us on Twitter: @theodoricmeyer and @jaxalemany.

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