"One unnamed donor gave $17 million to the Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor — perhaps the same one — gave another $17 million to prop up Kavanaugh."

Sheldon Whitehouse on Friday, September 6th, 2019 in an op-ed

It’s true: millions in dark money has been spent to tilt courts right

Supreme court nominee Brett Kavanaugh is sworn in to testify before the Senate Judiciary Committee in Washington Sept. 27, 2018. (AP)

After the Supreme Court agreed this term to hear a Second Amendment case brought by an NRA affiliate, several Senate Democrats cried foul.

Sen. Sheldon Whitehouse of Rhode Island and four other Democratic senators took the unusual step of filing a friend-of-the-court brief imploring the court’s conservative justices to resist right-wing activist pressure. These groups aim to reshape the judiciary to reflect their undisclosed financiers’ interests, the Democrats argued, on everything from expanding the Second Amendment to weakening unions and eroding voting rights.

To influence the court’s composition, Whitehouse said, a combined $34 million in "dark money" went toward both blocking President Barack Obama’s Supreme Court nominee Merrick Garland and confirming President Donald Trump’s two Supreme Court picks, Justices Neil Gorsuch and Brett Kavanaugh. 

In a follow-up to the legal brief, Whitehouse in a Sept. 6 Washington Post op-ed described the money as follows: 

"One unnamed donor gave $17 million to the (Leonard) Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor — perhaps the same one — gave another $17 million to prop up Kavanaugh." 

It can be difficult to trace the path of anonymous political spending with precision, and we wanted to know the factual basis for Whitehouse’s claim. The evidence we found about the money’s origins, and where it went, backed it up. 

‘A network of interlocking nonprofits’

The Judicial Crisis Network is one of several organizations that comprise an opaque network of politically conservative nonprofit organizations who, under the IRS rules, are not required to disclose their donors. (Liberal groups also spend millions on Supreme Court battles, and which side spends more can be hard to track.)

Whitehouse is correct that the Judicial Crisis Network received two donations from undisclosed backers to the tune of $17 million as the Supreme Court confirmation fights were underway. His office pointed us to an article by the transparency groups MapLight and the Center for Responsive Politics, which linked to the Judicial Crisis Network’s public disclosure documents for fiscal years 2016 and 2017. 

These documents showed a $17.9 million donation in 2016 followed by a $17.1 million donation the next year. Neither donor was revealed, so it’s possible they are the same person or group. Here’s how the contribution appeared in Judicial Crisis Network’s public disclosure from fiscal year 2017:  

The Judicial Crisis Network is among several groups linked to activist Leonard Leo, who has advised President Donald Trump on his judicial picks — and who Whitehouse name-dropped in his op-ed. Leo is the executive vice president of the conservative and libertarian legal association the Federalist Society. But a Washington Post investigation described Leo’s influence in more sweeping terms, referring to him as "the maestro of a network of interlocking nonprofits," who has "harnessed the nation’s nonprofit system to influence judicial appointments that will shape the nation for decades."

The Judicial Crisis Network and Federalist Society did not respond to our requests for comment.

Tax filings from the time of the Judicial Crisis Network’s creation in 2005 (then called the Judicial Confirmation Network) show it was based out of the home of Ann and Neil Corkery, who the Washington Post described as Leo’s "close allies," and who have served in various capacities at other groups he’s affiliated with. One of those is the Wellspring Committee, which has donated millions to the Judicial Crisis Network.

Both Neil and Ann Corkery have been listed at various times as the president of Wellspring. And according to MapLight, Daniel Casey, a director for Judicial Crisis Network, is the father of Wellspring director Michael Casey. 

Like the Judicial Crisis Network, the Wellspring Committee was created under Section 501(c)(4) of the Internal Revenue Code, which means its donors can remain secret. But such organizations are required to disclose who they make grants to.  

Wellspring reported a $14.8 million grant to the Judicial Crisis Network during its 2017 fiscal year. The previous year Wellspring gave the group $23.4 million. According to MapLight, between 2012 and 2015, Wellspring gave the Judicial Crisis Network more than $15 million. (Wellspring dissolved in December 2018.)

Through the work of transparency groups like MapLight and the Center for Responsive Politics, more information has come to light about the relationship between Wellspring and the Judicial Crisis Network. 

"While we were able to piece together that Wellspring has been Judicial Crisis Network’s top donor many years, Wellspring is also a ‘dark money’ group so the ultimate source of funding remains hidden," Anna Massoglia of the Center for Responsive Politics told PolitiFact. "Wellspring just adds an extra layer of insulation between Judicial Crisis Network and the donor or donors bankrolling the operation."

Confirmation fights

Whitehouse accurately described the Judicial Crisis Network’s role in the fight over two vacant Supreme Court seats. The group launched a seven-figure advertising campaign days after conservative Justice Antonin Scalia died on Feb. 13, 2016. The aim: to block Obama’s eventual nominee to replace Scalia on the Supreme Court. 

"Today, the Judicial Crisis Network is launching a ‘Let the People Decide’ advertising campaign," read a statement from the group’s head Carrie Severino. "In this first phase, we want to thank the U.S. Senators who say that the American people should decide who picks the next Supreme Court justice."  

The ads applauded Republican senators like Chuck Grassley of Iowa, then-chair of the Senate Judiciary Committee, who opposed holding confirmation hearings for Obama’s eventual nominee Judge Merrick Garland — which ultimately led to Scalia’s seat remaining vacant into Trump’s presidency.

According to a Judicial Crisis Network press release that has since been removed from their website, the group spent more than $7 million to block Garland’s nomination. The organization then pledged an additional $10 million to support the confirmation of Trump’s nominee Neil Gorsuch, who was confirmed to the court on April 7, 2017.

After Justice Anthony Kennedy, the court’s swing voter, announced his retirement in late June 2018, the Judicial Crisis Network prepared once again to spring into action. With Trump’s nomination of Judge Brett Kavanaugh the following month, the group said it would spend at least $10 million on pro-Kavanaugh advertising — the same amount it spent in support of Gorsuch.

Our ruling

Whitehouse said, "One unnamed donor gave $17 million to the Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor — perhaps the same one — gave another $17 million to prop up Kavanaugh."

Public disclosure documents show the Judicial Crisis Network received $17.9 million in fiscal year 2016 and $17.1 million the following year. Both came from an undisclosed source during confirmation fights over two vacant Supreme Court seats. (We were unable to determine if it was from a single donor.) Media reports show a number of connections and overlapping interests between the Judicial Crisis Network and the influential conservative activist Leonard Leo.  

We rate this True.