Soon after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN)—a conservative secret-money group that spends millions of dollars on ads attacking judges—promised to spend up to $10 million in support of his nomination. Representing a major attack on the fairness and impartiality of our judicial branch, this same group, among many other organizations, has been increasingly involved with big-money efforts to help elect or attack their favored state supreme court judges—all behind a curtain of secrecy.
When asked directly by Sen. Whitehouse about why these groups are so interested in supporting his nomination, Gorsuch responded, “You’d have to ask them.” For a Supreme Court candidate, this betrays an inexcusable lack of understanding and concern for the menacing role that secret money has played in this Supreme Court nomination process and in many of our state judicial elections. “We don’t know because it is dark money,” Sen. Whitehouse countered a frustrated Judge Gorsuch about the secret money group, “I can’t [ask them]. I don’t know who they are. It’s just a front group.”
The $10 million was in addition to the $7 million that JCN already spent in its effort to distort the record of Chief Judge Merrick Garland, Obama’s Supreme Court nominee who Republicans and JCN itself previously praised.
At the state level, the group recently spent big to help persuade Arkansas voters to reject judicial candidates who JCN argued would favor injured individuals over corporate defendants. JCN spent far more money than any of the candidates. One of its ads criticized the Arkansas Chief Justice for a unanimous ruling to strike down a voter ID law, which JCN claimed could lead to “illegal immigrants voting.” Arkansas Business said the JCN ads should be “categorized as lies.” And in 2012, JCN ran a revolting last-minute ad attacking a Michigan Supreme Court candidate, exploiting the tragic death of a U.S. soldier to lie about the judicial candidate’s record. A recent report from the Michigan Campaign Finance Network found that $3.4 million was spent on the 2016 supreme court race there, with 50 percent of the money from secret sources.
The JCN and other shadowy groups spending millions to attack judges are part of a web of dark money groups across the country. Tax records from another dark money group show that the group has given JCN millions of dollars. JCN, in turn, has given big to other secretive groups that spend big to elect judges and legislators.
Despite this lack of transparency, Congress has limited the ability of government agencies like the IRS to bring this money into the light. As a result, state governments are limited, but not powerless. After JCN’s secret money flooded Arkansas’ and Michigan’s judicial elections, some state legislators pushed for stronger disclosure requirements for spending on political ads. In Wisconsin, the state supreme court is considering a rule change this week after 54 retired state judges signed a petition asking for fair and objective recusal rules in the face of big-money donors with a case before the court. The facts are clear, until the law requires more disclosure, wealthy special interests will keep using its secret money to try to shape the law and the courts in their favor.
Every state with judicial elections needs to ensure that we have the highest levels of disclosure laws on the books to make sure the public knows exactly who is trying to influence their courts. Fair and impartial courts require strict transparency during judicial elections so that no matter who is on the other side of the courtroom, everyone can be sure of a fair day in court.