California Forum

Seeding campaigns to remake state supreme courts

When the conservative Federalist Society hosted its annual dinner at Washington’s venerable Marriott Wardman Park hotel in the fall of 2008, big donors and influential lawyers filled front-row tables, eager to hear the keynote speaker, Michael Mukasey, then the nation’s attorney general.

Seated at one table was California real estate mogul Robin Arkley II joined by Ann Corkery, a Washington, D.C., lawyer and fundraiser whom Arkley had retained to help advise him on spreading his money around to groups, including the Federalist Society, with a strong, right-leaning legal and judicial focus.

By 2008, the pairing already had yielded significant dividends. Corkery in late 2004 spearheaded the founding of a new judicial advocacy group, Judicial Confirmation Network, heavily funded by Arkley.

Since renamed the Judicial Crisis Network, the D.C.-based group has homed in on state judicial branch races in recent years, pouring millions of dollars into helping to elect conservative supreme court justices in Wisconsin and elsewhere, and like-minded attorneys general in several states.

The group also was instrumental in ginning up grass-roots support in 2005 and early 2006 for President George W. Bush’s U.S. Supreme Court nominees, John Roberts Jr. and Samuel Alito Jr.

The Judicial Crisis Network was equally prominent in opposing President Barack Obama’s picks for the high court, Sonia Sotomayor and Elena Kagan. It spent hundreds of thousands of dollars early in the 2014 election cycle attacking three Democratic senators – Mark Begich of Alaska, Mark Pryor of Arkansas and Mary Landrieu of Louisiana – for voting in favor of Obama court nominees. All three lost.

The Judicial Crisis Network likely will be in evidence again if Justice Ruth Bader Ginsburg or any of her fellow justices step down before the end of Obama’s term, aided by the legal chops and high court familiarity of its chief counsel, Carrie Severino, who clerked for Justice Clarence Thomas.

The exact size of Arkley’s donations to the Judicial Crisis Network aren’t known. As a nonprofit 501(c)(4) corporation ostensibly formed for “social welfare” purposes, the Judicial Crisis Network is under no obligation to disclose its donors. But he has given in the high six- to low seven-figure range, according to two sources familiar with the group who declined to be named because they were not authorized to speak publicly about its finances.

Arkley’s largess to the Judicial Crisis Network and the Federalist Society overlapped with a period when he had become a big contributor in the Golden State. In 2002, he chipped in more than $200,000 to the failed gubernatorial run of Republican Bill Simon. In 2005, Arkley dumped $250,000 into a ballot effort to pass Proposition 75, aimed at curbing union spending, and the following year he dropped $137,000 into Proposition 85, which called for parental notification when teenagers sought abortions; both were defeated.

On a national stage, Arkley – with the help of Corkery – created and socked $515,000 into You’re Fired Inc. That group unleashed a negative ad barrage that played a role in the GOP’s successful 2004 takedown of a major trophy: Democratic Senate Majority Leader Tom Daschle of South Dakota.

Back in his hometown of Eureka, Arkley, who did not respond to phone messages seeking an interview, is known for being pro-development, which has led to clashes with locals. Elsewhere, he was enjoying the kind of entrée that’s often a perk of being a major donor.

Soon after Bush’s re-election, Arkley attended a small celebratory dinner in Washington and scored a seat next to Supreme Court Justice Antonin Scalia – “the big prize” of the evening, according to a dinner guest who requested anonymity because it was a private affair. He also spent some time in the company of other super-donors at some of the early fundraising and policy retreats sponsored by billionaire brothers Charles and David Koch.

Although Arkley’s contributions tapered off toward the end of the Bush years – due partly to economic troubles facing his Security National Holding Corp. – the Judicial Crisis Network prospered thanks in some measure to the initiative of Corkery, who was able to tap other wealthy donors she had encountered at Koch events while at Arkley’s side.

In fact, the Koch network in 2008 helped her launch another nonprofit group, the Wellspring Committee, which became a conduit of cash to the Judicial Crisis Network and other GOP-aligned groups. In recent years, Wellspring has pumped almost $4 million into JCN’s coffers.

As the Judicial Crisis Network has become a big player in state races, much of its spending has been done via other, better-known political groups. JCN, for instance, funneled $1 million in 2014 to the Republican Attorneys General Association, making it the association’s third-largest donor in a year when the association helped the GOP pick up three new AG posts to attain a majority of 27 nationally. Beneficiaries include Adam Laxalt, who was elected Nevada attorney general last November.

The Judicial Crisis Network’s hefty donations to the Republican Attorneys General Association are part of a broader move by Republicans to elect more business-friendly AGs. In recent years, Republican attorneys general have joined suits to block key Obama administration priorities, including the Affordable Care Act and proposed EPA regulation of carbon dioxide emissions from power plants.

The organization’s focus on the judicial branch of government is part of an effort by the GOP and business groups to spend big to create a friendlier legal environment, one that often is couched as “judicial restraint,” is sympathetic to small government and limits tort liability for business.

From 2000 to 2009, business and Republican groups spent more than twice as much on state court elections as plaintiffs’ lawyers, unions and liberal groups, $26.3 million to $11.9 million, according to the nonprofit Justice at Stake Campaign.

The Judicial Crisis Network and Wellspring have given hundreds of thousands to the Wisconsin Club for Growth, which spent similar sums to help GOP justices gain a 4-3 edge on the state’s bitterly divided Supreme Court.

In Wisconsin, the rightward-facing majority has been instrumental in helping two of Republican Gov. Scott Walker’s most controversial policies – a voter ID requirement and his campaign to throttle public-sector unions – survive legal challenges and set the stage for Walker’s rise nationally. And the court is poised to play a pivotal role in an ongoing investigation into allegations concerning the governor’s 2012 recall election.

In last year’s elections, TV ad spending in state supreme court elections soared to at least $13.8 million, according to an initial tally by Justice at Stake. An estimated $4.9 million, or more than 35 percent – a greater share than ever – came from conservative and liberal outside groups, rather than the candidates themselves or political parties. Dark-money groups accounted for a fair share of that, either by spending directly on ads or by contributing to other groups that sponsored the efforts.

Sam Ervin IV, a grandson of the famous senator who led the Watergate investigation, lost a 2012 North Carolina Supreme Court election when outside groups, many of which don’t disclose their donors, spent almost $2.6 million against him. Judicial Crisis Network spent $75,000 against him.

“To the extent that judicial campaigns start looking like other campaigns, there’s a risk that judges will be perceived as having a political agenda,” said Ervin, who is now on the court after winning a 2014 election.

The increasing role of dark money in the process may be the most worrisome development of all, he added. “The public is better served, in an environment where judges are elected, if they know the source of the funding for those campaigns.”

A U.S. Supreme Court ruling two weeks ago in Williams-Yulee v. Florida – upholding that state’s ban on judicial candidates soliciting contributions – is unlikely to reverse the trend toward greater spending on judicial races, since candidates don’t personally raise funds for the outside groups.

In some ways, California was a forerunner. Business interests and conservative crime victim advocates persuaded the electorate in 1986 to oust three state Supreme Court justices, including the late Chief Justice Rose Elizabeth Bird.

Ever since, appointees of Republican governors have held a majority on the California Supreme Court. Although California has been spared further politicization that comes with big spending on supreme court races, dark money will continue flowing to judicial elections elsewhere, thanks in no small part to seeds planted by Arkley and the ongoing influence of the Judicial Crisis Network.

Peter Stone, who covered lobbying and the influence of money in politics at National Journal, writes for Mother Jones, The Huffington Post, The Daily Beast and other publications. Viveca Novak is editorial and communications director for the Center for Responsive Politics and was a reporter for Time and The Wall Street Journal. A longer version of this article was published in The Daily Beast and OpenSecrets Blog.