In the weeks leading up to the March 16 nomination of Judge Merrick Garland to the Supreme Court, media outlets uncritically featured discredited conservative group the Judicial Crisis Network (JCN) and its debunked talking points attacking Garland and other potential nominees. Following Garland's nomination, some mainstream outlets continue to credulously cite the group and its false claims, even though JCN has a history of injecting misinformation into judicial nomination fights.
Obama Named Judge Merrick Garland As His Nominee To The Supreme Court
President Obama Named Judge Merrick Garland As His Nominee To The Supreme Court. On March 16, President Obama named Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court. Garland has served on the D.C. Circuit since 1997. [The New York Times, 3/16/16]
Judicial Crisis Network Has A Long History Of Injecting Misinformation Into Judicial Nomination Fights
JCN Previously Called Itself The Judicial Confirmation Network And Was Devoted To An “Up Or Down Vote” For “Every Nominee.” The Judicial Crisis Network was founded during the second Bush administration and was originally named the Judicial Confirmation Network. It was founded to push through Bush's often-far-right nominees, “support the confirmation of highly qualified individuals to the Supreme Court of the United States,” and “ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” JCN -- which once derided "'obstructionists' for blocking votes on Bush nominees" -- changed its name and mission after President Obama took office. Its current mission is to support “only highly qualified individuals who share” a vision of “limited government.” [Media Matters, 2/19/16]
In 2009, JCN Misrepresented Sotomayor's Record To Fearmonger About A “Liberal Activist Judge.” JCN was active in the opposition to Sonia Sotomayor's Supreme Court nomination, misrepresenting her judicial record to suggest she was an “activist” judge. JCN ran a web ad making the false claim that Sotomayor had a “100% reversal rate as a court of appeals judge,” which was subsequently taken offline. But Wendy Long, the JCN counsel at the time, continued to peddle similar claims in the media without challenge. Long was quoted in Congressional Quarterly alleging that “Sotomayor has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.” Long also appeared on CNN days later with the misleading claim that Sotomayor “had plenty of cases ... overturned unanimously” by the Supreme Court. In reality, Sotomayor's reversal rates were deemed by legal experts and fellow judges to be “lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present” and “typical.” [Media Matters, 5/26/09, 5/27/09, 5/29/09]
In Recent Years, JCN Has Led Misinformation Campaigns Against State-Level Court Candidates. In 2012, JCN reportedly spent roughly $1 million on an ad attacking Michigan Supreme Court candidate Bridget McCormack, who was backed by Democrats and went on to win the race. The ad featured Michigan woman Teri Johnson, whose son was killed in Afghanistan, stating: “My son's a hero and fought to protect us. Bridget McCormack volunteered to help free a terrorist. How could you?” JCN's attack was premised on McCormack's past work for the Center for Constitutional Rights, which participated in a network that sought to vindicate the rights of improperly detained Guantanamo prisoners. The editorial page editor of The New York Times criticized the “McCarthyist” ad for “shamelessly exploit[ing]” the death of a soldier and falsely attacking McCormack. Local media also called out the ad as a “cynical manipulation” of the facts, writing that the claim “ignore[d] the U.S. rule of law.” JCN also spent hundreds of thousands of dollars to oppose Justice Courtney Goodson in her unsuccessful race this year for Arkansas Supreme Court chief justice. A JCN mailer attacked Goodson for striking down the state's 2013 voter ID law, claiming she was opening the door to “Illegal Immigrants Voting,” “Election Theft,” and “Widespread Voter Fraud,” pushing a series of debunked right-wing talking points alleging an imaginary voter fraud issue, and “grotesquely distorting” Goodson's record. The voter ID decision in question was decided unanimously, with all seven justices finding that the law violated the state constitution. [Media Matters, 2/19/16]
JCN Has Launched A Misleading “Seven Figure” Advertising Campaign Fearmongering About “One More Liberal Justice On The Supreme Court.” On February 18, JCN announced a “seven figure television, radio and digital advertising campaign on the importance of the Supreme Court in the upcoming presidential election.” JCN chief counsel and policy director Carrie Severino -- also a frequent conservative pundit who writes for National Review -- described the goal of the campaign as giving “the people a voice. Let them decide in November what kind of Court they want.” On February 29, Politico reported that the group was “ramping up its efforts to oppose” Obama's nominee for the Scalia seat, describing the digital ads JCN launched, which attack Democratic senators:
“With one more liberal justice on the Supreme Court, extremists would abolish your Second Amendment right to keep and bear arms,” the ad targeting [Democratic Indiana Sen. Joe] Donnelly reads. “Shouldn't the American people get to decide if that is what they want?”
“With one more liberal justice on the Supreme Court, bureaucratic agencies like the IRS and the EPA could carry out their extreme, unconstitutional agendas with no one to stop them,” the ad targeting Donnelly reads. “Shouldn't the American people get to decide if that is what they want?” [Media Matters, 2/19/16, Politico, 2/29/16]
JCN's Ongoing Attacks On Garland Have Been Debunked
JCN's Severino Floated Misleading Attacks On Garland Prior To His Nomination. In a March 11 post at National Review's Bench Memos legal blog, the Judicial Crisis Network's Carrie Severino wrote that a vote Garland cast to rehear a 2007 case on Washington, D.C.'s handgun ban disproved Garland's reputation as a “moderate,” revealing his “very liberal view on gun rights” because he had agreed with Judge David Tatel, “one of the most liberal judges on the court.” She added that his vote signaled a desire to overturn Justice Scalia's opinion in the Second Amendment case D.C. v. Heller, which is current precedent for the constitutional scope of gun restriction. [National Review, Bench Memos, 3/11/16]
Following The Nomination Announcement, JCN Released A Series Of Misleading “Topline Points” Doubling Down On Its Opposition To Garland. On March 16, as the president prepared to announce his nomination of Garland to the Supreme Court, the Judicial Crisis Network released a series of “topline points” outlining its opposition to Garland's nomination:
WHO IS MERRICK GARLAND?
§ President Obama wants to move the Supreme Court dramatically to the left to cement his liberal legacy for decades into the future, and Merrick Garland has been called the ideal judge to do that.
§ Judge Garland's record on the DC Circuit Court of Appeals proves that he would be a reliable fifth vote for a laundry list of extreme liberal priorities, like gutting the Second Amendment, legalizing partial-birth abortion, and unleashing unaccountable bureaucratic agencies like the EPA and the IRS.
§ Judge Garland clerked for the court's liberal icon, Justice William Brennan, and was reportedly considered for a cabinet post in President Obama's administration.
§ In multiple cases, Judge Garland has demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms, voting to uphold D.C.'s very restrictive gun restrictions, and siding with the federal government in its plan to retain Americans' personal information from background checks for firearm purchases.
§ Judge Garland was the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation (the “Haze Rule”) that would have, in the majority's words, forced businesses “to spend millions of dollars for new technology that will have no appreciable effect” on haze in the area. Garland would have upheld the rule.
§ Judge Garland has a long record of deference to unaccountable government bureaucrats at the Department of Labor, EPA and other agencies whose regulations kill jobs and stifle economic growth. [ScotusBrief.org, 3/16/16]
Legal Experts And Veteran Court Reporters Have Discredited JCN's Attacks On Garland's Guns Record. Media Matters has chronicled commentary from veteran court reporters and legal experts dismissing JCN's attacks on Garland's gun records based on his 2007 vote to rehear a case on the D.C. handgun ban as “fairly thin evidence” of any opinion on the Second Amendment, and a “dangerous” assumption for JCN to make. Media Matters has also previously noted that Garland did not, in fact, ever vote to uphold the ban. Furthermore, Garland's ruling in another case JCN highlighted in its attacks was not, in reality, the threat to the Second Amendment JCN claimed, and was also upheld in multiple courts. [Media Matters, 3/16/16, 3/17/16, 3/17/16]
JCN's Attack On Garland's 2002 Ruling Related To The EPA Has Also Been Debunked. JCN's claim in its “topline points” that Garland was “the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation” has also been debunked. In reality, the other two judges on the court agreed with Garland that the EPA is required to work with states to reduce haze pollution under the Clean Air Act; they just ruled against EPA's specific approach to achieving those reductions. And a revised version of the regional haze rule is now in place and has been upheld in multiple courts. [Media Matters, 3/16/16]
JCN's Smears On Potential Supreme Court Nominee Jane Kelly Were Also Discredited
JCN Chief Counsel Claimed That Kelly Was Unsuitable For The Supreme Court Because She Represented A Criminal Client While Working As A Federal Public Defender. Even though a public defender's basic constitutional responsibility is to advocate for his or her client, JCN's Severino attacked Kelly because while working as a federal public defender in Iowa, she secured a 14-year prison sentence plea deal for Casey Frederiksen, who was charged with receiving and possessing child pornography. In a March 3 blog for National Review, Severino attacked Kelly because the former public defender had “argued her client was not a threat to society.” But Severino failed to note that Kelly was presenting the views of a psychologist that her client had been seeing, not her own. Days later, JCN launched a six-figure ad campaign doubling down on these attacks “aimed at dampening support for Kelly among moderate Democrats.” [National Review, 3/3/16, Media Matters, 3/7/16, Politico, 3/11/16]
Numerous GOP Lawyers And The ABA Have Said Attacks On Lawyers For Defending The Accused Undermine The Justice System. The American Bar Association, as well as numerous conservative lawyers including several Bush administration officials and Sen. Lindsey Graham (R-SC), have condemned attacks on lawyers for criminal defense work as “shameful” and an “undermin[ing]” of the U.S. justice system. Graham, a former military lawyer, noted in 2010 that the “system of justice that we're so proud of in America requires the unpopular to have an advocate.” The president of the American Bar Association (ABA), James R. Silkenat, wrote a letter to the Democratic and Republican leaders of the Senate Judiciary Committee in 2014 condemning similar attacks on Debo Adegbile, Obama's nominee to the Department of Justice's civil rights division. Silkenat wrote that a “fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel,” and that attorneys “have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government - even to those accused or convicted of terrible crimes.” [Media Matters, 3/7/16, 3/15/16]
JCN's Attacks On The Record Of Another Potential Supreme Court Nominee, Judge Sri Srinivasan, Were Debunked
JCN Chief Counsel Claimed Srinivasan Has An “Extremely Liberal Approach To The First Amendment” By Falsely Claiming He “Denied The Existence Of The Ministerial Exception Altogether.” Writing for National Review, Severino misrepresented Srinivasan's role in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, claiming that in his capacity as counsel for the plaintiff he “denied the existence of the ministerial exception altogether.” Severino used her mischaracterization of Srinivasan's argument to claim, “Only a lawyer with an extremely liberal approach to the First Amendment -- more liberal than any Justice on the Supreme Court -- could have considered this argument plausible.” [National Review, 3/10/16]
But Srinivasan's Brief Didn't Deny The Existence Of The “Ministerial Exception.” Rather, the brief argued that the “ministerial exception” should not bar all cases arising from discrimination claims under the Americans with Disabilities Act. The brief specifically cited lower court decisions that recognized the “ministerial exception” but ruled that it did not apply to teachers, like the plaintiff, who taught secular topics at religious schools. [Media Matters, 3/11/16]
The Argument In Srinivisan's Brief Was A Continuation Of What The Bush Administration Argued. In 2008, while at the trial court level, the Bush administration's Equal Employment Opportunity Commission similarly argued that the “ministerial exception” did not exist for employees who teach “secular academic subjects to [their] students.” [Media Matters, 3/11/16]
Unlike Severino, Other Conservative Legal Theorists Have Acknowledged The Bush-Era EEOC Position. In Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, Volokh Conspiracy blog contributor David Bernstein noted, “The federal government took up [Perich's] cause during the waning years of the Bush administration” and “argued that Perich's discrimination claim was not subject to the ministerial exception.” [Media Matters, 3/11/16]
Mainstream Outlets Uncritically Cited JCN In Reports On Judge Jane Kelly
The Washington Post Uncritically Repeated JCN's Attacks. In a March 7 article detailing the credentials of several possible nominees to the Supreme Court, The Washington Post repeated Severino's misguided attacks on Kelly's criminal defense work, describing Severino's citation of the plea deal for Casey Frederiksen as evidence of Kelly's liberal ideology:
Conservative veterans of Supreme Court nomination fights reject the idea that Obama is preparing to nominate someone without ideology. “What Obama is trying to do is find someone he knows will be a very reliable liberal voice on the court. But he's going to present them as if they were moderate,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a conservative legal group, which has hired a research firm to help excavate the records of potential nominees. She cited a plea deal that Kelly secured as a public defender for a child predator. [The Washington Post, 3/7/16]
NY Times Uncritically Reports Attack On Kelly's Public Defender Record By JCN And Conservative Website. A March 14 New York Times article reporting that President Obama's Supreme Court pick was drawing near uncritically included the attack by JCN and the conservative Washington Free Beacon targeting Kelly's representation of criminal defendants:
Judge Jane L. Kelly, 51, a career public defender-turned appellate judge who attended law school with Mr. Obama and has been vetted by the White House, is said to have fallen lower on the president's list in recent days because of concerns that her roster of criminal defense clients could yield lines of attack for Republican critics.
The conservative Judicial Crisis Network said on Friday that it was running television advertisements attacking Judge Kelly for defending a child predator later convicted of murdering a 5-year-old girl. Republican-aligned groups were circulating reports Monday about her representation of a pipe bomber and a financial fraudster. [The New York Times, 3/14/16, Media Matters, 3/14/16]
Mainstream Outlets Are Still Providing JCN With An Uncritical Platform For Its Misinformation On Garland
NPR Aired Severino Interview, Uncritically Playing Kelly Attack Ad. In a segment highlighting conservative attacks on Garland after his nomination, National Public Radio (NPR) reaired JCN's attack ad on Jane Kelly without mentioning its inaccuracies, and featured commentary from Severino propping up JCN's ongoing misinformation campaign against Garland:
RENÉE MONTAGNE (HOST): And there may be a rough-and-tumble presidential election underway, but there is still plenty of room for a battle over President Obama's nomination of Judge Merrick Garland. Always, the nomination of a Supreme Court justice brings out armies of advocates for and against. Their messages flow into senators' offices and onto the airwaves in many states. NPR's Peter Overby has more.
PETER OVERBY: The first attack ad went up before there even was a nominee.
(SOUNDBITE OF POLITICAL AD)
UNIDENTIFIED WOMAN #1: Tell your senator Jane Kelly doesn't belong on the Supreme Court.
OVERBY: That was from the conservative group Judicial Crisis Network. Jane Kelly's a federal appeals judge. She was on a White House list of possible nominees. She's also from Iowa, just like Republican Senator Chuck Grassley, who's in charge of the confirmation process and has vowed not to consider any nominee before the election. As for whether the ad slamming Kelly had any impact on her chances, Carrie Severino, director of Judicial Crisis Network, said she isn't really sure.
CARRIE SEVERINO: It's hard to know. I know at least one article suggested that the White House was more skeptical of her nomination.
OVERBY: But the damage to Judge Kelly's reputation may be minor compared to what's coming from both sides.
SEVERINO: Now that we have a solid nominee, we can devote our efforts to really looking more deeply into Merrick Garland, and we are certainly keeping people apprised as we're finding new information out.
OVERBY: The battle is on two fronts, Garland's record and the GOP position against any Obama nomination. Kelly Ayotte is a Republican senator from New Hampshire. It's a swing state, and she's up for re-election. So she's been targeted by Judicial Crisis Network.
(SOUNDBITE OF POLITICAL AD)
UNIDENTIFIED WOMAN #2: The Supreme Court has a vacancy, and your vote in November is your only voice. Senator Kelly Ayotte agrees the American people should decide. [National Public Radio, 3/17/16]
The New York Times Neglected To Identify JCN's Bias And Uncritically Cited Debunked Talking Points On Garland's Guns Record. In a March 17 article discussing Democratic efforts to push for Garland's confirmation hearing, The New York Times identified the Judicial Crisis Network simply as “a conservative group,” and repeated the group's smear describing Garland's record as “anti-gun.” The Times did not note that JCN's claims have been widely dismissed, including by The Times' own Supreme Court reporter the previous day:
Starting Monday, in fact, the Judicial Crisis Network, a conservative group, will begin a $2 million television, radio and digital media campaign in New Hampshire, Ohio, Colorado, North Dakota and West Virginia, according to Carrie Severino, the group's policy director.
The campaign will target three Republicans and three Democrats: to thank certain lawmakers like Senator Charles E. Grassley, Republican of Iowa, for standing his ground to block the nomination; and to put pressure on other lawmakers like Senator Joe Manchin III, Democrat of West Virginia, by pointing to issues like what the group calls Judge Garland's anti-gun record. [The New York Times, 3/17/16, Media Matters, 3/17/16]
Wash. Post Similarly Failed To Provide Adequate Context For JCN's Debunked Smears. In reporting on Democrats' efforts to push for hearings on Garland's nomination on March 17, The Washington Post identified the Judicial Confirmation Network as a group “coordinat[ing] the conservative response to the Scalia vacancy,” and re-published a portion of JCN's “topline points,” without noting that these attacks have been debunked:
And where the Senate itself would typically take the lead role in vetting a Supreme Court nominee, there are no plans this time for the Judiciary Committee to hire its usual complement of additional staffers to conduct such checks. Beth Levine, a spokeswoman for the panel's Republicans, confirmed Wednesday that there are no plans to hire additional investigators for a Garland probe.
That has given outside groups a central role in the coming fight, especially on the Republican side. Most prominent among them is the Judicial Crisis Network, which has coordinated the conservative response to the Scalia vacancy and has pledged to run millions of dollars in television ads to derail Obama's nominee.
The group issued talking points Tuesday that said Garland would support “a laundry list of extreme liberal priorities, like gutting the Second Amendment, legalizing partial-birth abortion, and unleashing unaccountable bureaucratic agencies like the EPA and the IRS.”
America Rising Squared, a GOP-aligned opposition research organization, had been working with the Judicial Crisis Network and the Republican National Committee to investigate potential nominees. Brian Rogers, the firm's executive director, said Wednesday that he now had about a dozen researchers digging into Garland's background; some will be deployed across the country to vet the judge. [The Washington Post, 3/18/16]