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Greasing the Bench

Undue influence, Amy Coney Barrett, by Nancy Ohanian
Undue influence, Amy Coney Barrett, by Nancy Ohanian

Posted: Oct. 19, 2020

John Grisham, meister of legal thrillers, must look at the Dark Money flying about Supreme Court nominees and curse, “You stinking thieves, give me my book plots back!”

In a logical world, in a sane US Senate resistant to corruption, Senators would give the bum’s rush to nominees to the Supreme Court who are being promoted with millions, tens of millions, in dark money. Dark money, funding not readily traced to the actual donors, slithering through a labyrinth of shell corporations, donor trusts and 501(c)(4) organizations. And slithering around Senators voting on judicial nominee confirmations, not just for the Supreme Court but all Federal judges, whispering rewards and threats when they’re up for re-election. Dark Money groups like the Donors Trust and Donors Capital Fund, flowing into groups like the Federalist Society, which Trump brags picks his judges, and the closely connected Judicial Crisis Network.

During Neil Gorsuch’s confirmation hearings for the Supremes, Senator Sheldon Whitehouse (D-R.I.), asked Gorsuch who his angels were who provided seven million dollars to first deny Obama nominee Merrick Garland and then later drop ten million promoting Gorsuch to the bench. Gorsuch’s reply was that if Whitehouse wanted to know who they were, he should ask them. As if Gorsuch had no idea. And no idea of exactly what his hooded benefactors want from courts. In backing Brett Kavanaugh, one dark donation alone provided seventeen million. Many millions are now swirling to promote Amy Coney Barrett. Not to play down the importance of issues like reproductive rights, or the emphasis on preserving even the most meager opportunities for medical coverage, but it’s not hot-button issues that attract the incognito Big Money to such legal eagles of the Ayn Rand brotherhood. It’s their pro-corporate, anti-regulatory, anti-labor and anti-consumer histories. It’s their willingness to pay close attention to the Amicus briefs from the Big Money’s minions. It’s about suppressing the vote, rigging democracy with gerrymandering, etc…. It’s about insulating industries like fossil fuels, and their Wall Street investors, from accountability for the myriad pollution they knowingly cause. It’s about protecting the interests of those at the top.

And when the banks start making wholesale property grabs again, it’ll be about ushering them along as they ride roughshod over people, as the floodgates open for those tumbling into a fractured, pro-creditor bankruptcy system, peppered with self-serving “trustees.” Wait and see.

Redefining the Supreme Court, by Nancy Ohanian
Redefining the Supreme Court, by Nancy Ohanian

As Tom Neuburger recently detailed, Barrett has rung one alarm bell after another that she will be a grim reaper of the rights and protections of workers when they conflict with the Big Money, and injured consumers have little to rejoice about. In her brief time on the US Court of Appeals for the Seventh Circuit Barrett quickly joined the ilk of judges who are black-robed crowbars for prying wide the wealth gap via a legal assembly line of pro-corporate decisions.

David Sirota recently revealed an important case coming before the Supreme Court involving state and municipal government lawsuits against Shell Oil, for which Barrett’s father was a lawyer for decades. Oil companies want the Court to require climate cases be heard in the more corporate-friendly federal courts. Asked about climate change during her hearings, Barrett’s reply was that she does not have “firm views,” “…I’m not really in a position to offer any kind of informed opinion on what I think causes global warming.” How convenient. Isn’t that special? Cue the Church Lady.

During Barrett’s confirmation hearings, Senator Whitehouse schooled the Senate with this riveting presentation. Some of it drew from this 29 page treatise he published in the Harvard Law School Journal on Legislation. Both are worth the time. Whitehouse revealed 80 cases at the Supreme Court involving an identifiable Republican donor. Astoundingly, damningly, all were decided in the right-wing’s favor in 5-4 decisions. Many whittle down the concept of civil juries. Because why would fat cats suffer standing before a jury not of their board members? Eighty five-four partisan decisions. People with track records of defying odds like that wouldn’t be allowed through the door of a casino. What the hell are they doing on the Supreme Court?

But Whitehouse is moving the right direction, pushing reforms such as disclosure of big donors to groups that run political advertisements supporting or opposing judicial nominations. He seeks to add a few teeth to the Federal Election Campaign Act to cover judicial nominations and to report spending to the Federal Election Commission, (which could use any dentures it can get).

More generally, Democrats are also having their rolls in the hay with Dark Money. If doing things for principled reasons, why should their benefactors be secret? It’s a gutless position, and chips away at the moral high ground smart Democrats should lay claim to. No reason to go down that road unless you’re a Washington grifter and/or peddler of influence, unless you don’t want your motivations for giving or collecting money laid bare. Don’t Democrats realize voters would take note if they made a point of eschewing money from the shadows? Probably. But that’s not the road to riches. Look at the establishment alarm at Bernie’s independence from the Big Money. Can’t have that. Society will crumble.

At the creation of the United States, elites were not in short supply but giant, powerful corporations weren’t a thing. Small corporations were created to develop infrastructure, but were tightly controlled by local political authorities. Now, corporate behemoths stride the land, including those connected to international corporations, often as US subsidiaries, even of foreign banks. Some are out of central casting for movies about dystopian futures. Much of political Washington floats on money these corporate interests pour in through ever more inventive ways to those addicted to it, tapping for fresh veins like junkies. Plenty of good people in Washington, but the city is increasingly a magnet for those who will do anything for money, for whom rationalization is an art form. Sooner or later they’re very well-connected. One doesn’t go up against one, on many issues one goes up against large swaths of them, including party leaders talking out of both sides of their mouths.

In 2010, Pam and Russ Martens, of the must-read site Wall Street on Parade, showed that Charles Koch of Koch Industries, for which fossil fuels are central, is joined at the hip with Donors Trust and Donors Capital Fund. The Martens explored the money behind a race-baiting, Islamophobic film on DVDs circulated through major newspapers and direct mail as the 2008 election approached. Back then they wrote, “…the far right has assembled a $6 billion interlinked machine of think-tanks, lobbyists, PACs, astroturf front groups, media sycophants, endowed professorships, state-based political fronts and now even their own centralized headhunter; all to throw us off the scent that the real threat to the poor and middle class in America is corporate domination.”

It’s impressive, how so few people could persist in causing so much harm, from the climate or to our judiciary.

“When you find hypocrisy in the daylight, look for the power in the shadows,” said Whitehouse. From his paper’s conclusion: “…Enormous effort has been put by large and powerful interests into a fifty-year project to capture the courts. These interests seek to maintain, and indeed further entrench, the corporate-friendly outcomes into which they have invested hundreds of millions of dollars…Dark money is a plague anywhere in ourpolitical system. Citizens deprived of knowing the identities of political forces are deprived of power, treated as pawns to be pushed around by anon-ymous money and message. Dark money encourages bad behavior, creatingthe “tsunami of slime” that has washed into our political discourse. Dark money corrupts and distorts politics. Bad as all that is, dark money around courts is even worse. The chances of corruption and scandal explode. The very notion that courts can be captured undercuts the credibility upon which courts depend. It is surprising that the Judiciary has not come to its own defense in these matters… As Justice Brandeis also said, ‘If we desire respect for the law we must first make the law respectable.’”

And the influence diseases run rampant in the States:

The purchase of the courts isn’t only about the Supremes or even the rest of the Federal judiciary. State courts are where the action is for the vast majority of Americans, and also where many Federal judges began. Citizens United revved up the ability to capture elected judges, or Governors who appoint them, by well-heeled business interests and their lawyers. Allow me to slip in this essay I did for Barron’s over six years ago. As with most tales of political influence, things only get worse.

June 30, 2014
Other Voices

Views from Beyond the Baron’s Staff by Skip Kaltenheuser

The Price of Justice

IN CITIZENS UNITED V. FEC, FIVE JUSTICES of the U.S. Supreme Court found that the First Amendment protection of free speech prohibited Congress from banning political advocacy by organizations, including pushing for the election or defeat of candidates. Tightly blindfolded, Justice Anthony Kennedy concluded, “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Justice Kennedy should observe what’s happening to state courts.

Citizens United was a campaign finance accelerant, and not just in federal races. It threatens the integrity of state courts, which hear 95% of the nation’s cases.

At the state level, a majority of judges and justices stand in some form of election. These elections are the minor leagues of U.S. politics, even more vulnerable to the power of money than elections for Congress and state legislatures. Donors who try to buy laws and lawmakers are interested in buying the interpretation of the laws, as well.

A poll conducted by 20/20 Insight last year found that nine of 10 American voters believe both direct contributions and inde- pendent spending affect courtroom decisions. Earlier polls have consistently shown citizens losing confidence in the courts. Other polls show sizable cohorts of state judges and justices believing decisions are affected.

It’s not just past contributors calling the tunes. It’s anticipation of getting contributions in the future, perhaps in a run for a higher court, as well as the chilling fear of being attacked by well-financed opponents. Though big majorities of judges say they want fixes for the campaign finance arms race, more of them are playing the game. Influence mischief was under way long before Citizens United, but a report from the Brennan Center for Justice, the National Institute on Money in State Politics, and Jus- tice at Stake shows the 2010 Citizens United ruling’s rising impact on judicial races.

There was a 50% rise over the prior record, of 2003-2004, in independent spending by interest groups in state Supreme Court races in 2011-2012. Spending that was not controlled by candidates or their campaign committees was 27% of total campaign spending, not counting spending by the political parties. More than a third of all funds spent on state supreme court races came from seven special-interest groups and three state political parties. Television ads backing candidates for high courts took a huge leap—over a quarter funded by special interests, much of it attack ads involving hot button issues and wild distortions of controversial rulings.

You might think that a judge should recuse himself if a party to a case contributed to the judge or spent money on supportive election materials, and 92% of the people responding to a Justice at Stake/Brennan Center for Justice poll would agree with you. But the grounds for a judge’s recusal are judged by the judge.

The U.S. Supreme Court took a half-step toward a higher standard in a case from the West Virginia Supreme Court. Anticipating an important case against A.T. Massey Coal Co., Massey’s CEO flooded money into ads attacking an incumbent justice, who lost the election. The winning beneficiary of the Massey money refused to recuse himself when the case reached the state Supreme Court. A majority opinion in 2009 by Justice Kennedy said that while not every litigant contribution requires recusal, “extreme facts” can create a “probability of bias” violating due process. On rehearing, the West Virginia court determined the case should have been filed in Virginia.

Throughout the land, significant campaign contributions haven’t generated many recusals. In some states, including Pennsylvania and Wisconsin, half of the cases before the highest court involved litigants who contributed to justices. John Grisham needn’t fear running short of plots based on reality.

Joanna Shepherd, an economist and professor at Emory University School of Law, wrote a study for the American Constitution Society examining the relationship between campaign contributions and state Supreme Court decisions in 2010-12. After excluding cases in which two businesses squared off against each other, Shepherd found strong patterns: The more contributions justices garner from business interests, the more likely their decisions will favor those interests.

Donor disclosure offers little solace. Dark money often travels through layers of obscurity, including through Super PACs and through 501(c)(4) “social welfare” organizations that needn’t disclose their donors. Anyway, voters show limited interest or limited ability to sort out conflicts of campaign interest. There are over 50 judges on a ballot in Harris County (Houston), Texas; such elections tend to be straight partisan votes.

However one comes down on whether the First Amendment sanctions unlimited spending on campaigns, judicial elections are different. And if judicial elections aren’t different, judges ought to be. States should insist that judges recuse themselves in cases involving their contributors and their campaign supporters. That would ease the arms race.

To thwart independent expenditures and dark money, the states should move from elections toward merit-based appointments. Insulate the process from politics, using a diverse, professional selection committee.

A U.S. Supreme Court justice discussed the loss of confidence in the courts in a 1999 interview on Frontline: “We weren’t talking about this 30 years ago because we didn’t have money in elections. Money in elections presents us with a tremendous challenge, a tremendous problem, and we are remiss if we don’t at once address it and correct it…if an attorney gives money to a judge with the expectation that the judge will rule…in his client’s interest…. It’s corrosive of judicial independence.” Justice Anthony Kennedy might review these words before writing his next campaign-finance decision. They’re his.

Give judges gavels; take away their tin cups.

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