Backgrounder: The Judicial Crisis Network: Behind The Group Spreading Misinformation About Supreme Court Nominee Merrick Garland

FOR IMMEDIATE RELEASE: April 5, 2016

Contact: Laura Epstein or Drew Courtney at People For the American Way

Email: media@pfaw.org

Phone Number: 202-467-4999

Other: Array

The Washington, D.C., based Judicial Crisis Network is the most visible outside conservative group pressuring Republican senators to continue their refusal to hold hearings or a vote on the nomination of Judge Merrick Garland to the Supreme Court. The group, which says it has spent about $4 million already on its anti-Garland campaign, has taken the lead in generating misinformation about Garland and about the Court in an attempt to keep the Supreme Court seat open for the next president to fill.

This backgrounder provides a brief history of JCN and exposes the truth behind some of its most misleading claims about Garland’s nomination.

The Judicial Crisis Network Was Called the ‘Judicial Confirmation Network’ during the Bush Administration

  • In 2005, at the start of George W. Bush’s second term in office, a group of conservative activists and funders founded the Judicial Confirmation Network with the goal of pushing through the confirmations of federal judges. [The Wall Street Journal, 5/17/2005; People For the American Way, 3/3/2016]
  • The Judicial Confirmation Network’s original mission, as declared on its website, was to “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." [People For the American Way, 11/14/2008]
  • In 2010, early in the presidency of Barack Obama, the Judicial Confirmation Network changed its name to the Judicial Crisis Network and removed the call for up-or-down votes for judicial nominees from its mission statement. [People For the American Way, 2/11/2010]
  • The Judicial Crisis Network receives most of its funding from the Wellspring Committee, an organization founded by the billionaire Koch brothers that does not have to reveal the identity of its donors. [The Daily Beast, 3/29/2016]
  • JCN consists of just two staff members, according to its website, and is part of a conservative funding network centered around a single family of conservative donors. [Judicial Crisis Network; Media Matters, 4/4/2016]

The Judicial Crisis Network Previously Welcomed A Potential Merrick Garland Nomination

  • While JCN is now trying to paint Merrick Garland as a “liberal extremist,” just a few years ago the group viewed him as the “best scenario” for an Obama Supreme Court nominee who could bring down the “tension and the politics” surrounding the upcoming Supreme Court vacancy. The Washington Post reported in 2010:

"But of those the president could nominate, we could do a lot worse than Merrick Garland," [JCN general counsel Carrie] Severino said. "He's the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer." [The Washington Post, 4/23/2010]

JCN’s Second-Amendment Attack On Garland Based On ‘Thin To Nonexistent’ Evidence

  • Miguel Estrada, a conservative lawyer and George W. Bush appeals court nominee, told NPR: "The evidence that is being cited for the accusation that Judge Garland has some bias against Second Amendment rights is from thin to nonexistent.” [NPR, 3/27/2016]
  • Even one of the National Rifle Association’s top outside attorneys, Charles J. Cooper, has praised Garland, saying he “fairly and honestly assesses the merits of all sides of an issue.” Cooper wrote in a 1995 letter to the Senate Judiciary Committee that Garland “possesses the qualities of a fine judge” and “would comport himself on the bench with dignity and fairness.” Asked about the letter last month, Cooper said his “high opinion of Judge Garland has not changed — indeed, it has only strengthened — over the course of the 19 years since I wrote these words.” [The Washington Post, 3/28/2016]

President Obama Has A Right To Nominate A Qualified Judge To The Supreme Court

  • Contrary to JCN’s claims, there is no tradition of the president failing to nominate or the Senate failing to consider Supreme Court nominees during election years. According to the nonpartisan SCOTUSblog:

The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years. [SCOTUSblog, 2/13/2016]

  • The nonpartisan Politifact rated as “false” Senate Majority Leader Mitch McConnell’s claim that Republicans are “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year”:   

It is more than a stretch for McConnell to say it’s a "tradition" for the Senate not to fill a Supreme Court vacancy in an election year.

In the past century, there have been 25 presidential elections. Just four Supreme Court seats opened up in those election years. In three of those instances, the Senate confirmed the president’s nominee, and just once — the only election-year court opening in the past 80 years — did the Senate refuse a nominee.

So the scenario McConnell described has happened exactly once in the past century, in 1968, and that decision did not actually leave a vacancy on the court for any period of time.

"This is entirely a matter of circumstance," Sarah Binder, a political scientist at George Washington University, previously told PolitiFact. It’s "certainly not a norm or tradition by presidents refraining from nominating in a presidential election year, or by senators refusing to consider such nominations." [Politifact, 3/22/2016]

###