In a tired reversal of position, Republicans are attacking President Joe Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, over the support her nomination has received from Demand Justice, a liberal nonprofit group that does not disclose its donors.
The attacks echo those previously brought by Democrats against President Donald Trump’s three Supreme Court nominees. Democrats argued that Trump had outsourced his judicial selections to the conservative Federalist Society. Once they were selected, a dark money group operating one door down from the Federalist Society spent tens of millions of dollars on advertising to boost the chosen nominees.
Republicans claimed there was nothing wrong with Trump letting representatives from an outside group run his judicial selection process, or with a dark money group spending funds to support the eventual nominees. Now, they have taken the hypocritical and cynical approach of loudly crying foul.
Jackson’s nomination raises “the troubling role” that “far-left dark money groups like Demand Justice have played in this administration’s judicial selection process,” Senate Judiciary Committee ranking Republican Chuck Grassley (Iowa) said on Monday.
Republicans frame their dark money attacks around Demand Justice’s support for adding four seats to the Supreme Court, a proposal sometimes called court-packing.
Court-packing amounts to an attack on “the independence of the judiciary,” Grassley said.
In backing the proposal, Demand Justice was sowing “public distrust in the legitimacy of the Supreme Court,” Sen. John Cornyn (R-Texas) said.
Grassley asked Jackson whether she would take the same position as Justice Stephen Breyer and the late Justice Ruth Bader Ginsburg in voicing an opposition to court-packing. She declined, while citing Justice Amy Coney Barrett’s previous statement that she would not “express a view on a matter of public policy, especially one that is politically controversial, because that is inconsistent with the judicial role.”
“Respectfully, senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress,” Jackson said. “And I’m particularly mindful of not speaking to policy issues because I am so committed to stay in my own lane of the system.”
But in Jackson’s decision to defer to Congress on legislative questions, Senate Minority Leader Mitch McConnell (R-Ky.) claimed to see a sign of a conspiracy. He insinuated at a press conference Tuesday that Jackson’s refusal to state her opinion on court-packing, as Ginsburg and Breyer did in recent years, could be evidence that she’s trying to pay back the support she has received from Demand Justice.
“I don’t understand why this nominee is unwilling to take a position that defends the court,” McConnell said. Her refusal, he claimed, leads “to the suspicion” that she is providing some support to “the same dark money groups who are rooting so enthusiastically for her.”
This form of cynicism is fairly normal in politics. Political complaints over process ― campaign finance, the operating rules of Congress, transparency and so on ― are often weaponized by whichever party isn’t in power to attack the party that is. The other side then does the same thing when the roles are reversed.
But there are some factual differences here worth noting. Trump did indeed rely on the Federalist Society for his judicial selection process.
“We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump told Breitbart in 2016 before he won the White House.
While in office, Leonard Leo, a co-founder of the conservative legal society, took a leave from his position as executive vice president there to co-lead the Trump White House judicial selection team, alongside then-White House counsel Don McGahn.
At a Federalist Society gala in 2017, McGahn joked that the administration’s selection process had not exactly been “outsourced” to the Federalist Society.
“I’ve been a member of the Federalist Society since law school — still am. So frankly, it seems like it’s been insourced,” McGahn said.
Then-Sen. Orrin Hatch (R-Utah) cracked a joke along similar lines at the 2018 Federalist Society gala: “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!’”
After the Federalist Society helped pick Trump’s judges, the Judicial Crisis Network, a nonprofit that does not disclose its donors, spent at least $50 million to support the nominations of Justices Neil Gorsuch, Brett Kavanaugh and Barrett, according to public reports. The Judicial Crisis Network operates out of an office in Washington, D.C., in the same building and on the same floor as the Federalist Society. JCN is now attacking Demand Justice for running ads in support of Jackson.
“There is a difference between a dark money interest rooting for someone, and right-wing dark money interests having a role in actually picking the last three Supreme Court justices,” Sen. Sheldon Whitehouse (D-R.I.) said during Jackson’s nomination hearing on Tuesday.
And while this cynical turn is normal in politics, both sides do not hold the same position on whether groups should be free to spend undisclosed money on judicial nomination campaigns.
Democrats back the Disclose Act, which would require nonprofits to disclose contributions above $10,000 when running public campaigns to support or oppose a federal judicial nominee. Republicans have filibustered some form of that legislation multiple times since it was introduced in 2010, most recently during consideration of the Freedom to Vote Act.