Dark Money Fuels GOP's Capture of U.S. Courts

      Money has long been recognized as the mother’s milk of electoral politics, in the phrasing of the legendary California politico Jesse Unruh. Now, for at least the past three years, money has also been the mother’s milk of judicial politics in the right-wing’s partial capture of the Supreme Court and the federal judiciary.

      A detailed report by three Democratic senators — New York’s Chuck Schumer, Michigan’s Debbie Stabenow, and Rhode Island’s Sheldon Whitehouse — released last week [May 27] untangles the web of dark money-funded organizations linked to the conservative-libertarian Federalist Society that have helped Republicans confirm two Supreme Court justices and a near record number of life-tenured federal judges during President Trump’s time in office.

      The impact of the mostly secretive spending by far-right legal advocacy groups can be seen most clearly in the undisclosed sources of the six- and seven-figure ad buys by the Judicial Crisis Network (JCN) in regard to the three most recent Supreme Court nominations. JCN, with offices in the same building that houses the Federalist Society, spent $7 million to help bottle up President Obama’s nomination of Judge Merrick Garland to the Supreme Court and then $10 million in support of Trump’s two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh.

      If the group had spent that money in support of candidates for elected federal office — Congress or the presidency — federal campaign finance law would have required full disclosure of the donors to help the public watch out for undue influence by moneyed interests. Instead, Gorsuch and Kavanaugh took the bench, after historically narrow confirmations in the Republican-majority Senate, without any public accounting of the debts that they may owe to  corporate fat-cats or ax-grinding ideologues of the far right.

      One can be sure, however, based on their public appearances at the Federalist Society’s gala dinners in Washington shortly after their respective confirmations that Gorsuch and Kavanaugh are both fully aware of the gratitude they owe to their friends and supporters from the confirmation fights. When he spoke at the black-tie dinner in November 2018, Gorsuch declared that his confirmation showed that “a committed originalist and textualist” can be confirmed to the Supreme Court — a pledge that brought hearty applause from the committed originalists and textualists in the audience.

      A year later, Kavanaugh, fresh from the painful confirmation fight marked by sharply disputed charges of sexual misconduct from his high school days, appeared at times to be choking up during a speech that he said was built on a single theme: gratitude. “There’s a saying that adversity introduces a man to himself,” he told the black-tie audience at Washington’s Union Station, “it also reveals your true friends.”

      The Democratic senators’ report — titled, “Captured Courts: The GOP’s Big Money Assault On The Constitution, Our Independent Judiciary, And The Rule of Law” — tells at least part of the story about the sources of the Federalist Society’s money: $20.7 million in donations in 2017. A major chunk, $5.5 million, came from a group, Donors Trust, linked to the fiercely right-wing Koch brothers, and another $2.4 million from private foundations or trusts controlled by wealthy families, some with industry ties. The U.S. Chamber of Commerce, a frequent amicus in business-related cases at the Supreme Court, chipped in $50,000; and several big corporations added five- or six-figure contributions.

      The Federalist Society disclaims any policy-related advocacy, but it is unsurprising that with funding sources such as these that the society, its speakers, and now its scores of federal judges give scant regard to racial justice, environmental protection, consumer protection, or workers’ rights. In short, the society is a partisan advocacy group, its protestations to the contrary notwithstanding.

       “[D]ark money is a uniquely pernicious threat when deployed to capture the institution in which fairness and equality under the law matters most: our courts,” the Democratic senators state in their report. “When dark money is deployed to capture seats on the federal courts, the effects can last for generations.”

      Indeed, with Gorsuch and Kavanaugh both in their 50s, their confirmations appear all but certain to lock in a conservative, Republican majority on the Supreme Court for another decade unless Justice Clarence Thomas decides, improbably, to retire while in good health. Meanwhile, Trump has been allowing the Federalist Society, and its longtime leader Leonard Leo, to take the lead role in vetting nominees for lower federal courts.

      With seven months remaining in his four-year term, Trump has already installed a near-record 194 judges on federal courts — just below President Jimmy Carter’s record 208 judges at this point in his one-term presidency. Trump’s judges include 51 appointed to the influential federal courts of appeals: nearly one-third of the total number of judges on the intermediate-level circuit courts. The Senate’s Republican leader, Kentucky’s Mitch McConnell, who slowed action on Obama’s judicial nominations in his final year in office, has fast-tracked Trump’s judicial nominations and is vowing now to “leave no vacancy behind” by the end of Trump’s time in office.

      In the Trump era, the blatant politicization of federal judicial appointments, in contrast to the relative bipartisanship through most of U.S. history, may seem the least of his offenses against political and constitutional norms. But the senators conclude by underscoring the long-term threat to democracy. “It is time for America to reckon with the reality that our courts are being captured,” they write. “Nothing less than our democracy is at stake.”