Republicans signal fight over 'dark money' as Supreme Court confirmation battle gears up

WASHINGTON – Conservatives are signaling they intend to draw attention to third-party "dark money" groups as part of the looming fight to replace Associate Justice Stephen Breyer on the Supreme Court – no matter who President Joe Biden nominates.

Days after Breyer announced he would step down following a nearly 30-year stint on the nation's highest court, one conservative group began airing a TV ad decrying "secret money from liberals" it claims is influencing the process. Days later, Sen. Chuck Grassley, the top Republican on the Senate Judiciary Committee, sounded a similar alarm.

"What we won’t do is rubber stamp someone committed to implementing a radical progressive agenda by legislating from the bench," the Iowa Republican said during a hearing this month. "I've talked about liberal dark money many times. Seems like these groups have already made it clear that's what they expect." 

If the issue of outside influence by third-party advocacy groups plays heavily into the confirmation process it will represent a flipped script for Republicans, who have been on defense over similar criticism from Democrats for years. Third-party groups helped vet and promote all three of President Donald Trump's nominees to the Supreme Court.

Dark money groups, usually nonprofits, raise and spend money to influence public policy debates. Unlike political campaigns and other entities that engage in advocacy relating to elections, the groups are generally not required to disclose their donors or comply in other ways with federal campaign finance laws.  

The short list:A look at California Justice Kruger, under consideration for the Supreme Court  

First Black woman:Race, gender become factors in Supreme Court confirmation battle 

Conservative groups involved with judicial issues have long been seen as better funded and better organized than their liberal counterparts, although there are indications progressive organizations are beginning to catch up. A New York Times analysis of tax records this year found that dark money groups aligned with Democrats in some cases surpassed Republican operations in the 2020 presidential campaign.

Carrie Severino, president of the Judicial Crisis Network, asserted that liberal groups want "payback" for their support of Biden and other Democrats in the 2020 election in the form of a left-leaning Supreme Court justice. Severino's group – which does not disclose its donors – said conservative groups are starting an anti-nominee campaign now to highlight what they see as hypocrisy on the left.  

The Judicial Crisis Network, which has promoted conservative jurists for years, is financing what it says is a $2.5 million ad campaign targeting Arabella Advisors, a consulting firm with ties to several left-leaning organizations and that was founded by Eric Kessler, who worked in President Bill Clinton's administration. 

"The president, and the Senate – were bankrolled by Arabella Advisors," the Judicial Crisis Network asserted in the initial version of its ad.The ad claims, those groups are seeking "a liberal activist" on the Supreme Court.

"I think it's important for people to see the connection," Severino said.

Arabella Advisors spokesman Steve Sampson said the claims in the ad are false and "deliberately mischaracterize the work" of the firm. The company "is not the source of funding," Sampson said, "and we do not exert control over the spending decisions." 

Over the weekend, Judicial Crisis Network changed the script of its ad to claim Democrats received money from the "Arabella Advisors network," widening the target from just Arabella to other groups.     

Democrats say it is conservative groups such as Judicial Crisis Network that are engaging in hypocrisy, attempting to demonize a practice they helped to normalize. The group is allied with a network of organizations that have loose ties to Leonard Leo, a conservative legal advocate who has helped promote GOP nominees for the high court for more than a decade. 

That effort has paid off with a 6-3 conservative court that has signaled it may overturn the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion and limit the power of states to regulate the open-carry of handguns. 

"They accused us of hypocrisy and try to change the subject from the fact that they set the terms," said Sen. Sheldon Whitehouse, D-R.I., who has been the most outspoken member of the Senate Judiciary Committee questioning the influence of outside groups on the Supreme Court. "And if we don't fight back on the terms that they set, they just beat the crap out of us with their dark money. This is that play in action."

Whitehouse used his time during Associate Justice Amy Coney Barrett's confirmation hearing in 2020 to draw attention to dark money on the right, which he argues is having a profound effect on the legal system that extends beyond the selection of jurists.   

Exactly how much money flows into Supreme Court confirmation battles from either conservative or liberal dark money groups is difficult to discern. Because the groups are not engaged in advocacy related to elections they are not regulated by the Federal Election Commission and they disclose very little detail about their donors or how they spend their money.

While outside spending has already emerged as a political messaging weapon in the upcoming confirmation process, it's not yet clear whether Biden's nominee will arouse the same degree of passion from outside groups as previous nominees. The stakes are lower because Biden, a Democrat, is replacing a justice who was a reliable liberal vote.

'Stealthy':Justice Breyer had a big impact on abortion. That legacy is now in jeopardy

So, the court's 6-3 conservative balance is not in jeopardy. 

One of the progressive groups frequently targeted by the right is Demand Justice, which in 2020 committed to spending $10 million to block Trump's nominee to replace Associate Justice Ruth Bader Ginsburg until after the inauguration. Trump wound up nominating Barrett and she was confirmed 27 days later.

Demand Justice had promoted several of the candidates Biden is now considering for the Supreme Court, including Judge Ketanji Brown Jackson on the U.S. Court of Appeals for the D.C. Circuit. While conservative groups have called attention to that fact, it's highly likely Biden would have landed on Jackson anyway: The president promised to name a Black woman to the Supreme Court for the first time and there are only a handful of Black women federal judges that could have been considered. 

'Tone matters':Some predict Justice Breyer's exit will deepen polarization on Supreme Court

Brian Fallon, cofounder and executive director of Demand Justice, accused Judicial Crisis Network of "trying to muddy the water" about its own role in confirmations.  

"It's somewhat laughable for JCN to pretend that we've caught up to their side," he said. "We are losing by a score of six to three."

Biden is expected to announce his nominee by the end of the month. The list of candidates the president is considering includes Leondra Kruger, an associate justice on California's Supreme Court and U.S. District Judge J. Michelle Childs.

If Republicans raise questions about liberal dark money in the confirmation hearing this spring they will likely repeat many of the same points they brought up when Jackson was before the Senate Judiciary Committee in April for her nomination to the appeals court. Several Republicans pressed Jackson at that time on whether she supported some positions taken by Demand Justice, such as its call to expand the size of the high court. 

"Demand Justice is a dark money liberal group whose first priority is getting left wing judges who will follow a liberal agenda instead of the Constitution," Sen. Thom Tillis, R-N.C., said during Jackson's confirmation hearing last year. "How is this any different from what Democrats have accused Republicans of for the last four years?" 

Neither Tillis nor Grassley responded to a request for comment.

Jackson, who responded to Tillis by noting she has "no control" over what outside groups say or do, was ultimately confirmed to the appeals court in June.

She won the support of all Senate Democrats and three Republicans.