By Alyssa Bowen and Lisa Graves
At the end of February, less than a month before this week’s Supreme Court nomination hearings for Judge Ketanji Brown Jackson, the “Independent Women’s Law Center” (IWLC) circulated “suggested SCOTUS talking points” to GOP Senators, according to a memo obtained by Documented, a corporate watchdog group.
In that memo, IWLC – which is a project of the dark money duo Independent Women’s Forum (IWF) and Independent Women’s Voice (IWV) – urges Senators to attack Judge Brown Jackson for her “judicial philosophy” rather than her credentials, which experts have called “extraordinary.”
This is not a new tactic.
Leonard Leo’s network, with the backing of tens of millions in anonymous funding, has pushed the Supreme Court and other courts to the far right, through judicial nominations, litigation, and more. Part of this dark money push has been to promote the teaching of “originalism,” a framework that purports to interpret the “original intent” of the men who long ago wrote and amended the Constitution.
Originalism, though, is highly political and correlated with political right. In fact, its modern origins can be traced to the backlash against Brown v. Board of Education. That is the 1954 decision that found racial segregation in public schools to be unconstitutional under the 14th Amendment’s guarantee of “equal protection of the law.”
Chief Justice John Roberts, a George W. Bush nominee backed by Leo and groups tied to him, has deployed this framework to eviscerate the power of the federal government to protect the voting rights of Black Americans and others.
IWF/IWV/IWLC – which have cumulatively received more than $4.75 million from the Leo network since 2014 – in their memo urge GOP Senators to correlate Judge Jackson’s process for deciding cases with “judicial activism.” They claim she may “bend the law” to fit “subjective notions of fairness” if she does not promise to follow the right-wing’s originalist framework.
IWLC’s memo also encourages GOP Senators to paint Democrats and supporters of Judge Jackson as “hypocritical” for not supporting women and racial minorities nominated by the GOP.
Yet, IWF and IWV refuse to hold themselves to the same logic. The groups, which celebrated Trump’s promise to nominate a woman to fill Ruth Bader Ginsburg’s vacancy in 2021, now claim that Biden’s pledge to nominate a Black woman to the Supreme Court was “discriminatory,” “toxic,” “pandering at its worst,” and “neo-racism.”
Meanwhile, IWF and IWV have used a veneer of neutrality while promoting right-wing politicians and policies. IWV CEO Heather Higgins explained her groups’ role within the right-wing infrastructure to funders at a David Horowitz event: “Being branded as neutral, but actually having people who know know that you’re actually conservative puts us in a unique position,” she pitched, touting how IWF can “repackage” right-wing messaging to appeal to women outside the GOP.
IWF was founded by three white women as Women for Judge Thomas, a group launched to back Clarence Thomas’ bid for the Supreme Court and discredit Anita Hill’s testimony of Thomas’ sexually harassment toward her (which he denied but which other Black women also accused him of). IWF/IWV also spent a substantial amount of money to help force Brett Kavanaugh onto the Supreme Court. IWF fellows and staffers viciously assailed Dr. Christine Blasey Ford, the Stanford psychologist who credibly accused Kavanaugh of attempted rape, even though Kavanaugh denied it. IWF and IWV also rallied behind Amy Coney Barrett during her nomination process, including staging an “I’m with Her” event outside of the Supreme Court as part of their “[broad] strategy of casting criticism of Barrett as anti-woman,” as described by The Intercept.
IWV has also promoted a far-right agenda by spending money to help extremist U.S. Senate candidates, like Todd Akin, after he claimed rape could not lead to pregnancy, and Richard Mourdock, after he said that rape victims who became pregnant “carried a gift from God.” IWF has also helped to mainstream Trump’s Big Lie on voter fraud and has repeatedly challenged public health science during the deadly Covid-19 pandemic. Although IWF has a stated non-position on Roe v. Wade, several of its key staffers and fellows have attacked the widely popular reproductive rights of women, including Erin Hawley, the spouse of Sen. Josh Hawley.
IWF/IWV’s seeming veneer of moderation and neutrality has provided access to mainstream media platforms, from CNN, MSNBC, NPR, The Hill, The Washington Post, and more. The GOP has also given them substantial airtime as women testifying before Congress against pro-woman public policies that are widely favored by women, such as the Equal Rights Amendment, paid leave, equal pay, and federal child care assistance.
IWF and IWV apparently have deep sway with some GOP politicians. Higgins even took credit for Kavanaugh’s confirmation, claiming that Sen. Susan Collins confided to her that in the era of #MeToo, she could not have voted for Kavanaugh without IWF’s talking points. She also said FOX used those talking points as well.
Leading up to this week’s Supreme Court nomination process, right-wing dark money groups have scrambled to find a unified message with which to attack Biden’s Supreme Court nominee, Judge Brown Jackson. They seem to have found it in IWLC’s “judicial philosophy” talking points.
Here are some examples of how GOP Senators have echoed the talking points IWLC urged:
- IWLC: “The best way to tell whether a judge will be impartial and apply the law as written is to examine her judicial philosophy and her views about the role of the Court in a democratic society.”
- Sen. Marsha Blackburn (R-TN): “The American people deserve a Supreme Court Justice with a documented commitment to the text of the Constitution and the rule of law, not a judicial activist who will attempt to make policy from the bench.”
- Sen. Mike Lee (R-UT): “I think it’s important that a jurist … acknowledge the importance of interpreting the law as it was written, as it was understood by the public at the time of its enactment… this is how we maintain the rule of law, this is part of how we have given force to this greatest human civilization that human history has ever recorded.”
- IWLC: “If they really cared about demographic representation they would not have opposed the nomination of Amy Coney Barrett to the Court and they would not have participated in vicious smear campaigns against Clarence Thomas, Miguel Estrada, Janice Rogers Brown, Neomi Rao, and other nominees of color to the federal bench.”
- Sen. Ben Sasse (R-NE): “If this process were conducted in good faith Miguel Estrada and Janice Brown might well be on the Supreme Court today, but their opponents lied and bullied rather than accepting principled minority judges.”
- Sen. Lindsey Graham (R-SC): “I remember Janice Rogers Brown, the African American woman that was filibustered by the same people praising you. I remember Miguel Estrada, one of the finest people I’ve ever met, completely wiped out… So if you are Hispanic or African American conservative it’s about your philosophy, [but] now it’s going to be about the historic nature of the pick.”
- IWLC: “We need to see evidence that this nominee will leave politics to the politicians and not try to rewrite our Constitution or the statutes passed by Congress to fit her own personal conceptions of justice.”
- Sen. Chuck Grassley (R-IA): ”If a judge rewrites a law later because of vague notions about fairness, or equity, or common good, that unravels all of our work here in the Congress.”
- Sen. Thom Tillis (R-NC): “a good judge must understand his or her job isn’t to legislate from the bench and read in their preferred policy outcomes into statutes.”
True North Research fellow, Ansev Demirhan, also contributed to this analysis.