White House: Outside groups 'not a factor' in Jackson nomination

Philip Wegmann
Real Clear Politics
Tue, 22 Mar 2022 00:01 UTC

© AP Photo/Jacquelyn Martin

Suddenly, they didn't want to take any real credit.

Demand Justice, the progressive group who successfully pressured Justice Stephen Breyer to retire and who then praised President Biden when he nominated Judge Ketanji Brown Jackson to fill the subsequent vacancy, now maintains that, all along, it was just a bit player in the larger game of Supreme Court selections. The progressive group isn't as influential as, say, the Federalist Society.

That was the line from Brian Fallon, executive director of Demand Justice, who said that comparing his group to that conservative juggernaut wasn't quite apt because "they've been at it longer."

"They have way more money. And they've captured the court by a 6-3 margin," Fallon told the Washington Post, before adding Monday morning that "we still have a long way to go before we're as influential or as awash in resources as they are."

Republicans either didn't read the Post before taking their seats in the Senate Judiciary Committee Monday morning, or they don't make much of Fallon's denials. The GOP hammered Jackson and the administration over their alleged connections to "dark money" groups like Demand Justice, who they say unduly influenced the nomination process.

Of course, the White House didn't make much of those attacks, telling RealClearPolitics that "no spending on the part of any organization or individual was a factor in this decision." And neither, said Deputy Press Secretary Andrew Bates, "were attacks on potential nominees from the right or the left."

Sen. Dick Durbin knew these kinds of attacks would still come in committee.

Before a single Republicans spoke, the Judiciary chairman told Jackson that there were some who would "allege that you're before us today as a product of the campaign of dark money groups." The idea that shadowy influence had been improperly involved, however, was nonsense. "Your record and the process that led to this nomination," the chairman continued, "belie that claim."

Then, one after the other, Republicans promised in their opening statements that they would get to the bottom of just what kind of role progressive dark money groups had played in the Jackson nomination.

Sen. Chuck Grassley, the ranking committee Republican, went first, decrying "the troubling role far-left dark money groups like Demand Justice have played in this administration's judicial selection process." It wasn't just a question of association, Grassley insisted, because Demand Justice was "attacking the independence of the judiciary."

"These activists demand that the court make policy and deliver results they can't achieve through the deliberation, compromise, and rough and tumble of legislative politics," continued Texas Sen. John Cornyn, taking up the same line of attack.

Sen. Lindsey Graham was blunt. "You say, Judge Jackson," the South Carolina Republican addressed the nominee sitting silently before the committee, "you don't have any judicial philosophy per se. Well, somebody on the left believes you do or they wouldn't have spent the money they spent to have you in this chair."

Demand Justice, a so-called dark money group because their outside political spending is unlimited, was likely the top target because the organization has flexed its muscles in public. First, they launched a pressure campaign to wear down Breyer and later took credit when he decided to retire early. Then, they praised Biden for naming Paige Herwig, an alum of their organization and now a top lawyer in the White House counsel's office, to help lead the search committee for the justice's replacement. Now, Demand Justice plans to spend $1 million backing Jackson's nomination, and according to some reports, is prepared to spend much more. The group did not respond to RCP request for comment.

A lot of dark money gets thrown around in Washington, especially during confirmation battles. The conservative Judicial Crisis Network, for instance, spent over $10 million in support of Justice Amy Coney Barrett. But according to the White House, dark money groups didn't influence the president in the current nomination process. Instead, Bates told RCP, Biden's "consultations with Senators of both parties did inform his decision."

And many of those senators had already gotten to know the judge. Last year, the Senate confirmed Jackson by a vote of 53-44 to sit on the U.S. Court of Appeals for the D.C. Circuit. Along with Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, Graham was the third GOP vote in support of the nomination.

As the Senate weighs Jackson's nomination again, this time for the Supreme Court, the White House and Demand Justice find themselves in the same foxhole. They are not, however, on the same page.

While Biden often speaks in reverent tones about the Constitution, a board member of Demand Justice recently said that the founding document, the principal text that Jackson will be called upon to interpret, "is kind of trash."

That is how Elie Mystal described the Constitution earlier this month during an appearance on ABC's "The View," explaining that "this document was written without the consent of Black and Brown people in this country, and without the consent of women in this country." He added, "If that is the starting point, the very least we can do is ignore what those slavers and colonists and misogynists thought, and interpret the Constitution in a way that makes sense for our modern world."

The White House doesn't think much of that kind of judicial philosophy, and when asked specifically about those comments, Bates told RCP, "The president obviously rejects that view."

"He honors the Constitution, which he has been emphatic about for decades, as does Judge Jackson. And the President was explicit when this vacancy was announced that he would select a nominee in the mold of Justice Breyer, who would uphold the Constitution and the rule of law," the White House spokesman added.

The entire debate has the White House in a bit of an unusual position. Though they were the top recipients of dark money in 2020, it is Democrats, not Republicans, who have called for a more aggressive policing of that kind of spending in politics. For his part, Biden has backed HR1, which proponents say would end dark money in politics. That, and White House aides normally roll their eyes at the stage directions that progressives like Fallon tweet out.

Demand Justice pressed the administration last summer to move on from Biden's infrastructure bill. A former Hillary Clinton spokesman, Fallon wrote on Twitter that the status of infrastructure was "up in the air" and voting reform should be the top priority. At the time, Ben LaBolt, a former Obama official, told RCP that the suggestion from Demand Justice was "completely nuts."

Biden signed that bill into law five months later. It is considered his marquee accomplishment to date. LaBolt, meanwhile, has returned to the White House as a member of Biden's "sherpa" team to shepherd Jackson through the confirmation process.

If Demand Justice is calling the White House these days, those calls likely aren't returned. At least, not quickly. Biden World remembers how Fallon attacked the president during the primaries for having "no plan to counter the Republican capture of the Supreme Court."

Conservatives probably aren't familiar with that fighting.

"Demand Justice bought and paid for their role in this confirmation process," said Caitlin Sutherland, executive director of Americans for Public Trust, before noting how that group pressured Breyer into retirement, previously employed Biden staffers, and plans to spend big in support of Jackson. "Anyone dismissing the influence of their dark money isn't credible."

Carrie Severino wasn't surprised by Republican interest. The Judicial Crisis Network came under scrutiny from Democrats during the last confirmation battle, and the president of that dark money group noted that Demand Justice was previously "a partner with the billion-dollar Arabella network, which has campaigned for court packing, for Justice Breyer's retirement, and for Jackson's nomination to the Court." Severino said it is "no surprise" then that Senate Republicans "wanted to learn more about the dark money network calling shots on the left."

If Republicans are attacking Demand Justice because they fear that the dark money group conspired to put a liberal justice on the court who doesn't respect the role of the judiciary, Jackson may have tried to put those concerns to bed, albeit indirectly.

"During this hearing," the judge said in her opening remarks, "I hope that you will see how much I love our country and the Constitution, and the rights that make us free."

Comment: The dark money influence around Jackson's nomination isn't the only source of controversy. From the Washington Times:

Supreme Court nominee Judge Ketanji Brown Jackson defended her record of sentencing felons convicted of possessing or distributing child pornography during her confirmation hearing Tuesday after her light sentences came under scrutiny by Republican senators.

"These are some of the most difficult cases that a judge has to deal with because we are talking about pictures of sex abuse of children," Judge Jackson told the Senate Judiciary Committee.

The nominee noted that Congress has enacted a law telling a judge what to do when handing down a sentence.

"That statute doesn't say 'look only at the guidelines and stop.' The statute doesn't say 'impose the highest possible penalty,'" she said, adding that it tells a judge to issue a sentence that is "sufficient but not greater than necessary."

Republicans have suggested in recent days that Judge Jackson is soft on crime, citing her record in child porn cases.

Sen. Josh Hawley, Missouri Republican, accused her of going easy on felons during her time as a federal judge, sending them to prison for less time than suggested by guidelines.

From Fox News:

"In passing on this nomination to the Supreme Court, we must also pass judgment on whether or not your particular philosophy is an appropriate one at this time in our history." Those words in 1987 were a game changer in American confirmations when Democratic senators opposed the Supreme Court nomination of Judge Robert Bork by President Ronald Reagan.

While the Senate had long maintained that a qualified nominee would be confirmed despite his judicial philosophy, that changed with Bork. The man who uttered those words was the senator from Delaware: Joe Biden.

Biden has now made his first nomination as president. Democrats insisted, in the words of Rep. Jim Clyburn, Judge Ketanji Brown Jackson's confirmation must be "beyond politics."

That has not been the position of the Democrats since Bork and certainly not in the last three nominations. Indeed, many Democrats went public with the nomination of Amy Coney Barrett that they would vote against her entirely on her conservative approach to constitutional and statutory interpretation.

The question is whether these hearings will clearly establish the judicial philosophy of Jackson.

In her opening statement, Jackson discussed her past decisions and stressed "I believe in transparency. That people should know precisely what I think and the basis for my decision." GOP senators will demand the same transparency from her during the question and answer sessions.

While other nominees have been relative unknowns on their judicial philosophies, Jackson has an interesting added element. In her recent appellate court confirmation process, Jackson expressly refused to discuss her judicial philosophy.

Far left groups like Demand Justice are clearly confident about Jackson's judicial philosophy. Many of these groups opposed fellow short-lister District Judge J. Michelle Childs because she is viewed as too moderate. Indeed, Childs expressly said that she does not believe in the liberal interpretative model of the "living constitution," where the courts can substantially change the meaning of the Constitution without being formally amended.

Yet, President Biden stressed that his nominee must follow a "living constitution" approach, including a broad view of "unenumerated rights."

In her last appearance before the Senate, Judge Jackson specifically asked if she followed the "living constitution" model. She repeatedly refused to answer that questions. She told the Senate that she is "bound by the methods of constitutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court's chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed."

The answer left many of us confused. She is bound to follow the precedents of the Supreme Court — but she is allowed to have her own philosophy on constitutional interpretation. Moreover, prior nominees have discussed their approach to constitutional and statutory interpretation. One of them was Jackson herself. When she was nominated for the district court, Jackson answered "no" to that question.