The Obstruction Lobby: What the Outside Groups Working to Block a New Supreme Court Justice Really Want

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During President George W. Bush’s first term in office, a group informally dubbed “the four horsemen” started working together to help Bush push through federal court nominees who would remake the judiciary in a way the conservative movement had long hoped for.

By the time Bush was tasked with finding a replacement for retiring Supreme Court Justice Sandra Day O’Connor in 2005, the “four horsemen” were ready to be what U.S. News &World Report called “the glue for a fragile conservative coalition, from the religious right to the business lobby” in the campaign to confirm Bush’s ultimate nominee for the spot, Samuel Alito, and his pick for chief justice, John Roberts.

The Wall Street Journal reported that Sen. Trent Lott, the former Senate majority leader, had asked former George H.W. Bush official C. Boyden Gray to assemble a team to prepare for any potential Supreme Court battles. The “horsemen” ended up including a group that held influence in the disparate parts of the Republican coalition: Gray; Ed Meese, the Reagan attorney general who had led the unsuccessful push to put ultraconservative Judge Robert Bork on the high court; Leonard Leo, an official with the conservative Federalist Society, which had been working for decades to raise up a generation of lawyers and jurists to push an “originalist” reading of the Constitution; and Jay Sekulow of the American Center for Law and Justice, a right-wing legal group founded by televangelist Pat Robertson.

This coalition’s success at achieving the nominations and confirmations of Roberts and Alito — not to mention scores of lower-court judges — has paid off. The Roberts Court has been tremendously friendly to corporations, often at the expense of workers and consumers, while Roberts and Alito have been what Southern Baptist leader Richard Land has called “the gifts that keep on giving” to the Religious Right.

Today, as the White House and the GOP-dominated Senate face off over the unexpected Supreme Court vacancy left by the death of Justice Antonin Scalia, the same coalition of Religious Right and business interests are coming together to mount a public pressure campaign to convince senators to block whomever President Obama nominates.

Leading this effort are some of the original “four horsemen,” along with new players who represent the continuation of that same effort to secure a Supreme Court that will protect the interests of big business and the Religious Right.

Although this alliance has so far relied on procedural arguments — making the bogus claim that there is a “tradition” or “precedent” for a sitting president not to fill Supreme Court vacancies in his last year in office — they make no secret of the fact that they are promoting obstruction as a means to the end of a far-right court.

As Republican senators vow to block the confirmation of whomever President Obama nominates to fill the Supreme Court vacancy — or even to meet with a nominee — they are echoing the messaging of these outside groups. And, even as polls show that a majority of Americans want President Obama to fulfill his constitutional obligation and nominate the next Supreme Court justice, Republican senators face pressure campaigns from these groups if they back down the slightest bit from a scorched-earth response to the vacancy.

In fact, some, including the Family Research Council’s Tony Perkins, have hinted that it would be worth losing a Republican majority in the Senate in order to secure a Supreme Court seat for decades to come.

Judicial Crisis Network

A new ad running during Sunday shows in Washington, D.C., and in the home states of several vulnerable Republican senators and Senate leaders, features soft-focused stock footage of diverse American families in coffee shops, at work and playing with children in their front yards. Over this footage, a female voice says that “the American people should decide” who the next Supreme Court justice is and so the Senate should delay confirming any nominee until the next president takes office.

“This isn’t about Republicans or Democrats,” the voiceover says. “It’s about your voice.”

Although the ad attempts to frame judicial obstruction as a high-minded, democratic response to a Supreme Court vacancy, for the group that runs the ads, the issue is very much “about Republicans or Democrats.”

The Judicial Crisis Network (JCN) was founded in 2005 as the Judicial Confirmation Network, a pressure group with the goal of confirming President Bush’s federal judicial nominees in his second term in office.

The group was founded in part by Jay Sekulow, one of the Bush administration’s “four horsemen,” who was at the time working to convince Senate Republicans to eliminate the ability of the Democratic minority to filibuster some of Bush’s more extreme judicial nominees.

Sekulow is the chief counsel of the American Center for Law and Justice, a right-wing legal group established by televangelist Pat Robertson to be a Christian conservative counter to the American Civil Liberties Union. The Wall Street Journal reported that Sekulow recruited Gary Marx, a young activist who had worked to organize voter drives in conservative churches for Bush’s reelection effort, to lead JCN, which initially ran out of ACLJ’s offices. (Marx later left JCN to work for Ralph Reed’s Faith and Freedom Coalition and now works for Sen. Marco Rubio’s presidential campaign.)

The early funding for JCN, according to the Daily Beast, came from California real estate developer Robin Arkley, a generous donor to state and federal Republican candidates. In addition to many individual campaign contributions, in 2004 Arkley had set up and funded a political action committee to aid the successful effort to unseat Senate Minority Leader Tom Daschle. In 2005, he poured hundreds of thousands of dollars into a ballot initiative that would have hurt unions’ ability to participate in elections and another that would have required parental notification for minors seeking abortions, according to California campaign finance records.

Arkley worked with attorney Ann Corkery to get the group off the ground, and Corkery’s husband, Neil, became its treasurer. (According to The Sacramento Bee, Ann Corkery had helped Arkley with his half-million dollar project to unseat Daschle as well.) In 2008, Corkery became the head of the Wellspring Committee, a dark-money operation that told the IRS that it was “implementing a multi-state effort to advance free-enterprise political and legislative outcomes.” Wellspring eventually became JCN’s major funder.

Early large Wellspring grants illustrate the policy interests that the group was keen on promoting. In its first year reporting to the IRS, Wellspring gave grants to the pro-GOP front group Americans for Job Security, and the Koch-funded groups American Energy Alliance and Americans for Prosperity. Wellspring gave smaller grants to the anti-abortion groups National Right to Life Committee and the Susan B. Anthony List. It gave out several grants to state-level tort reform groups. Later, the group helped to fund a separate conservative dark money group, the Annual Fund, run by Neil Corkery.

In 2011, Wellspring gave six-figure grants to both JCN and its affiliated Judicial Education Network. The next year, JCN had become Wellspring’s biggest beneficiary, with a grant of $1.5 million. (Its next biggest grant went to the Catholic Association, a group run by Neil Corkery and former Federalist Society official Leonard Leo that in the same year passed $150,000 on to the National Organization for Marriage.) In 2013, Wellspring gave JCN $1.4 million.

In 2014, JCN got an even bigger windfall from Wellspring in the form of a $6.6 million grant. That same year, Wellspring continued to fund a number of other conservative projects, including Neil Corkery’s other organizations and something called the American Dream Initiative, an outfit run by the attorney who succeeded in getting the Supreme Court to decimate campaign finance laws in the McCutcheon decision. So far the Initiative seems to consist of a single petition linked to a web video claiming that lax enforcement has allowed ISIS to set up camp just over the Mexican border.

This funding bonanza came after JCN rebranded itself from the Bush-era Judicial Confirmation Network into the Obama-era Judicial Crisis Network.

After Justice Alito was confirmed in 2006, the JCN all but disappeared, issuing just a handful of press releases, until it reemerged to fight President Obama’s election with a million-dollar ad campaign linking Obama to Jeremiah Wright and William Ayers.

After Obama was elected in 2008, JCN announced that he would have a higher “burden of proof” in demonstrating that his judicial nominees were fair, but Marx promised as Obama took office that the group would stick to its original mission and “support the principle that every nominee who goes to the full Senate deserves an up-or-down vote.”

Within weeks, JCN was criticizing Sen. Patrick Leahy for moving too quickly to confirm President Obama’s nominees to top Justice Department posts. When President Obama made his first nomination to a federal appeals court, a federal trial judge from Indiana who had the support of both of his home-state senators, JCN’s chief counsel at the time, Wendy Long, came out swinging, calling the nominee, David Hamilton, a “hard-left political activist.” In particular, Long declared the nomination to be “payback” to the community service group ACORN (which many Republicans absurdly claimed stole the 2008 election for President Obama), because Hamilton had spent one summer canvassing for ACORN when he was in college in the 1970s — a claim that quickly spread through the right-wing media.

Then, when President Obama nominated Sonia Sotomayor to replace retiring Justice David Souter later on in 2009, JCN launched an all-out effort to oppose her nomination, setting up state-level coalitions to target key senators. Still, however, JCN opposed a filibuster of Sotomayor’s nomination (a long shot in any case); Long told Politico that “we’ve always said a filibuster is not appropriate for judicial nominees” and that “everybody should stand up, after a hearing, and vote yes or no.”

Then, a little over a year after Obama took office, the group changed its name to the Judicial Crisis Network and scrubbed the call for up-or-down votes for judicial nominees from its mission statement.

In 2010, as Obama faced another Supreme Court vacancy, JCN ran attack ads against Elena Kagan in the home states of vulnerable senators but stopped short of calling for a filibuster of her nomination.

At some point after the 2010 elections diminished the Democratic majority in the Senate, JCN abandoned its opposition to the filibuster for judicial nominees. By 2013, when the GOP was putting up a blockade against President Obama’s three nominees to the influential D.C. Circuit Court, JCN was running ads pressuring senators to filibuster the nominees. Long, who in 2012 ran unsuccessfully as the Republican candidate for U.S. Senate in New York, had said during the Bush administration that JCN opposed the filibuster “regardless of what party’s in power.” However, her successor at JCN, Carrie Severino, decried Senate Democrats’ decision to end filibusters of lower court judicial nominations after facing a crippling Republican blockade, saying that “the 60-vote majority is there because we need to have both parties working together.”

Severino, now JCN’s chief counsel, says that her group is “totally prepared” for the fight to block any person President Obama nominates to replace Scalia and that the group has “set aside resources for this fight.” Along with running the disingenuous “Let the People Decide” ad, the group has been laying down the law on pressuring Republicans to refuse to even begin considering a nominee. Shortly after news of Justice Scalia’s passing became public, Severino declared that Obama is “the last person who should be appointing his successor” and that looking at the qualifications of any nominee would just be a “silly distraction.” Hinting more strongly at JCN’s true motives, Severino told one interviewer that failure to block an Obama nominee would be “political malpractice” on the part of Republicans.

The group has also launched a web ad campaign to pressure vulnerable Democrats to break with their party and block a nominee. One ad says, “With one more liberal justice on the Supreme Court, extremists would abolish your Second Amendment right to keep and bear arms. Shouldn’t the American people get to decide if that is what they want?”

In addition to its pressure campaigns surrounding federal judicial nominations, the Judicial Crisis Network — like its funder Wellspring — has also been working to pump money into state-level judicial elections. This year, JCN has spent at least $600,000 running ads against an Arkansas Supreme Court justice, including sending a mailer claiming that the justice’s role in a unanimous ruling striking down a voter ID law “opens the door” to “illegal immigrants voting” and “election theft.”

American Center for Law and Justice

When news broke of Justice Scalia’s death, Jay Sekulow, one of the Bush administration’s “four horsemen,” who played a key role in starting the Judicial Confirmation Network, didn’t waste a moment. The New York Times reported that within “moments” of receiving news of the justice’s death, Sekulow’s American Center for Law and Justice organized a team of opposition researchers and started preparing to go, in Sekulow’s words, “full-media, full-legal research, full-government affairs, full-throttle on this.”

Sekulow used almost identical messaging to JCN’s, declaring that “the American people should get to decide” who nominates the next Supreme Court justice … a nice way of saying that the Senate should block any nominee for President Obama’s entire last year in office. Sekulow tried to strike a reasonable tone in an interview with ACLJ’s founder, Pat Robertson, saying, “The Senate has a role in this, the Constitution says ‘advice and consent.’ The advice here is, ‘Don’t put up a nominee when you’re only going to be the president, you’re a lame duck and you’re only going to be the president for 11 months.’”

His advice for Senate Republicans: “Just say no.”

Robertson, the televangelist and Christian Right godfather, founded ACLJ in 1991 as a right-wing counter to the American Civil Liberties Union and selected Sekulow, a former attorney for Jews for Jesus, to lead it.

Under Sekulow’s leadership, ACLJ has taken on some true “law and justice” causes —including recently taking the lead in pressing for the release of Saeed Abedini, an American pastor who was imprisoned in Iran. However, much of its work has been as a legal arm for the Religious Right’s attempts to deny liberties to LGBT people, Muslim Americans and others.

Sekulow has boasted that ACLJ helped to draft the Defense of Marriage Act, the reactionary 1996 law that denied gay people federal recognition of their marriages, which was held unconstitutional in 2013. The group also waged legal battles against marriage equality in several states.

Although Sekulow has moderated his rhetoric somewhat in recent years, in his early years at ACLJ, he made very clear what he thought of gay people. Right Wing Watch’s Brian Tashman recounted in a report for Political Research Associates:

In a 1997 fundraising note entitled, “Chief counsel’s confidential report on the homosexual agenda,” Jay Sekulow accused everyone from the entertainment industry and public schools to Fortune 500 companies of promoting the “homosexual agenda,” which he described as a “runaway train bent on destroying our communities.”

“Homosexuals are not only out of the closet, they are out to destroy the family as we know it,” Sekulow warned, writing that gay rights advocates intend to make America “the world’s greatest promoter of every form of sexual deviancy.” He insisted in the memo that “the state has a compelling interest to ban the act of homosexuality” and at minimum refuse “to promote the act that society deems destructive.”

Sekulow put those beliefs into action in 2003, when he filed an amicus brief defending state bans on consensual gay sex when the Supreme Court considered Lawrence v. Texas.

ACLJ has also been a leader in the Religious Right’s efforts to radically change the meaning of “religious liberty” from a shield to protect the practice of one’s religion to a sword for discriminating against others, including representing a bus driver who refused to drop women at a Planned Parenthood clinic. Tashman writes:

In 2011, the ACLJ represented a Texas bus driver fired after refusing to transport two women to a Planned Parenthood clinic. While the clinic offers a wide range of services ranging from pregnancy tests to breast cancer exams, the driver came to the conclusion through prayer that the passengers were seeking an abortion and refused to drive them. Even the ACLJ attorney representing this seemingly omniscient bus driver admitted that he could not have known why the women were going to a Planned Parenthood facility. The transit service settled with the driver in 2011, under the condition that he would never seek work in the transportation system again, under advice “that it would cost a lot more in attorney fees than it would cost to settle.” That same year, the ACLJ won a lengthy legal battle representing four Illinois Walgreens pharmacists who were fired for denying customers the “morning-after” pill.

ACLJ’s attempts to portray itself as a champion of religious freedom were undermined by its leading role in trying to stop the development of the so-called “Ground Zero Mosque,” an Islamic community center in lower Manhattan. A pamphlet that the group was distributing around that time argued that Muslims can’t be loyal Americans because “devout Muslims cannot truthfully swear the oath to become citizens of the United States of America.”

In a post on ACLJ’s website in the early 2000s, Sekulow even implied his support for blasphemy laws, lamenting that “religion lacks protection in the law” and adding, “The composition of the Supreme Court is obviously something we’re always watching because we know that with the more conservative court obviously some of our values will be more protected.”

ACLJ also runs several global outposts that sometimes promote extreme agendas. The group’s East African affiliate has worked to keep homosexuality outlawed in Zimbabwe and tried to eliminate a provision in a restrictive abortion law in Kenya that would have exempted women whose lives are at risk. The group’s affiliate in Russia, in the wake of a protest by the feminist punk band Pussy Riot, called for strengthening the country’s blasphemy laws and defended Russia’s ban on gay “propaganda” to minors. ACLJ’s European affiliate recently helped to lead an effort to pressure the European Parliament to cut off international development aid that could “directly or indirectly finance abortion.”

Sekulow has been dogged by reports that ACLJ and an affiliated nonprofit, Christian Advocates Serving Evangelism, have funneled many millions of dollars into his pockets and those of family members. (Sekulow’s son, Jordan, who helped to lead faith outreach for Jeb Bush’s unsuccessful presidential campaign, has held a top position at ACLJ.) The Legal Times reported in 2005 that one thing this windfall helped pay for is “a private jet that he once used to ferry Supreme Court Justice Antonin Scalia.”

Heritage Foundation and Heritage Action

Heritage Action for America, the more explicitly political arm of the influential conservative think tank Heritage Foundation, has marred the image of its parent organization in the minds of some conservatives with its insistence in recent years on scorched-earth obstructionism over any attempt at governing.

Heritage Action is most infamous for encouraging Republicans to shut down the government in futile protest of the Affordable Care Act, but the group has used the same scorched-earth tactics on judicial nominations, urging Senate Republicans to bring a stop to nearly all judicial and executive branch confirmations even before Scalia’s death.

Politico reported in January that in advance of a GOP retreat in Baltimore, Heritage Action circulated a document among lawmakers declaring, “Given the Obama administration’s disregard for Congress’s role in our constitutional system of government, the Senate should refuse to confirm the president’s nominees unless those nominees are directly related to our national security.” This echoed previous calls from one of Heritage’s favorite senators, Ted Cruz of Texas, to completely shut down the judicial confirmation process.

Later that month, Heritage Foundation senior fellow Hans von Spakovsky and American Family Association governmental affairs director Sandy Rios agreed that Republicans should oppose all future Obama judicial nominees because, in von Spakovsky’s words, they would all share Obama’s “radical left-wing views.”

On January 26, Heritage Action announced that it would “continue to oppose all judicial nominees and reserve the right to key vote against any and all judicial nominees retroactively,” meaning that it would count support for any Obama judicial nominee against members of Congress in its scorecards — even, apparently, for votes that had already taken place. Senate Minority Leader Harry Reid specifically called out Heritage Action for pressuring GOP senators against action on judicial nominees.

Not surprisingly, Heritage Action and the Heritage Foundation are now pressuring GOP senators to hold Justice Scalia’s seat open until the next president takes office. Heritage Foundation president Jim DeMint, who, as a Republican senator, built a reputation as a “warrior for purity” within the party, wrote that the Senate “can and should withhold its consent” from any Obama nominee.

In an interview with Rios after Scalia’s death, von Spakovsky offered a barely veiled threat to Republican senators contemplating considering an Obama nominee.

“I think they understand that if they were to confirm a liberal Obama nominee this year, it would be an absolute election disaster,” he said. “I mean, I’ve already heard from folks in the conservative community saying that if any Republican senator works to confirm an Obama nominee, they’re going to be a massive target of people trying to get them out of office because they’ll be so upset about that.”

Heritage, under the leadership of DeMint, and Heritage Action, headed up by Michael Needham, have acted as an arm of the Tea Party, working to pressure the GOP to be an immovable agent of obstruction in a divided government. One House Republican accused Heritage Action last year of insisting on “an unachievable standard” of conservatism that actually “hurts” the party’s goals by preventing reasonable action and compromise.

Heritage Action’s version of conservatism is so far out of the mainstream that even Senate Republicans score an average of just 60 percent on its legislative scorecard. The two senators who have perfect scores from the group are Sen. Mike Lee and Cruz, who has been boasting of his bridge-burning obstructionism as he runs for the Republican presidential nomination. (Sen. Marco Rubio, a supposedly mainstream rival to Cruz, ranks an impressive fifth in Heritage’s ranking of senators.)

Heritage Action’s single-minded focus on attacking the Affordable Care Act infamously helped lead to the 2013 government shutdown. One fellow ACA opponent slammed Heritage and Cruz for the ordeal, writing that the “entire affair was bungled by a few narcissistic conservative groups and senators” and ended up actually hurting the cause they were claiming to support.

The Heritage Foundation, meanwhile, helps to bolster these political arguments by employing a stable of “experts,” including von Spakovsky and original “horseman” Ed Meese, to promote their case in the media.

Paul Weyrich, one of the most important figures in the creation of the Religious Right as a political powerhouse allied with the anti-tax, anti-regulation interests of corporate America, helped to found the Heritage Foundation in 1973 with funding from brewer Joseph Coors. Heritage now controls a massive amount of money, receiving more than $94 million in contributions in 2014, which it deploys to advance the corporate right’s tax and regulation interests as well as the Religious Right’s opposition to LGBT equality and reproductive freedom. Not surprisingly, both Heritage groups have received substantial funding from groups connected to the billionaire Koch brothers.

Family Research Council

The Family Research Council, which started as a political arm of the Christian conservative behemoth Focus on the Family, in many ways shapes the messaging of the Religious Right, merging hard-elbowed messages of political expedience with evangelical language of piety and, increasingly, persecution.

FRC quickly joined the call for Republicans to block any Obama nominee to the Supreme Court, echoing the movement’s “the people should decide” language. “With the election only 269 days away,” FRC president Tony Perkins wrote, “the people should decide what president should fill this seat.” In his daily email to members, Perkins blamed President Obama for politicizing the Supreme Court fight and invoked a nonexistent “tradition” of leaving Supreme Court seats open in the last year of a presidency.

In 2010, FRC promised to sink more than $100,000 into the effort to, if not defeat Elena Kagan’s nomination, politically damage those who supported her. Unsurprisingly, FRC attacked her primarily for her opposition to the military’s discriminatory “don’t ask, don’t tell” policy for gay and lesbian service members, which Congress was in the process of repealing.

As the most prominent political arm of the Religious Right movement, FRC is working to turn back the clock on social advances for women, LGBT people and religious minorities — something that it hopes a friendly Supreme Court will accelerate.

FRC’s president, Tony Perkins, has defended Uganda’s “kill-the-gays” bill as merely an effort “to uphold moral conduct”; claimed that gay youth have a higher suicide rate because they intrinsically know their sexual orientation is “abnormal”; falsely asserted that pedophilia “is a homosexual problem”; and called the It Gets Better Project, a suicide prevention program for LGBT youth, a “disgusting” attempt to “recruit” children into “perversion.”

Even as he claims that LGBT equality and reproductive freedoms are leading to the persecution of American Christians, Perkins dismisses the liberties of religious minorities and even of Christians who don’t share his particular theology or political views. He has insisted that “only 16 percent of Islam is a religion” and thus the faith isn’t necessarily protected under the Constitution. FRC’s executive vice president, Jerry Boykin, has also said that Muslims don’t have First Amendment religious freedom rights and declared, “No mosques in America.” Perkins has even said that more liberal Christians don’t have the same First Amendment rights as conservatives because the amendment protects only “orthodox religious viewpoints.”

FRC wants a Supreme Court that will advance these views.

The group warned in early 2015 that if the Supreme Court were to rule in favor of marriage equality, “the fight for everything relating to faith in God, His moral and spiritual laws, and the very gospel will be under accelerated assault for the rest of our lives.” When the Supreme Court handed down the Obergefell decision, invalidating state bans on same-sex marriage, Perkins declared, “No court can overturn natural law.”

When the Supreme Court struck down bans on consensual sex by gay people in the landmark Lawrence v. Texas decision, FRC called it “a direct attack on the sanctity of marriage,” warning, “Nothing less than the people’s right to self-government is at stake.”

One FRC official has called Eisenstadt v. Baird, the Supreme Court decision that struck down laws prohibiting the distribution of contraception to unmarried people, “the single most destructive decision in the history of the Court” and argued that “functioning societies” “punish” and “shame” people who have sex outside of wedlock.

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