Zachary Pleat

Author ››› Zachary Pleat
  • As Polls Show Rising Support To Confirm SCOTUS Nominee, Wash. Post Lauds "Remarkably Successful" Opposition

    ››› ››› ZACHARY PLEAT

    The Washington Post credulously called the efforts by the discredited conservative group Judicial Crisis Network (JCN) to prevent the confirmation of Supreme Court nominee Judge Merrick Garland "remarkably successful." But polls show the general public is increasingly at odds with JCN's position. Indeed, just last week the Post reported that the results of a new poll was evidence that "Democrats are winning the message war over Garland." The Post promoted the notion of JCN's success in an interview with chief counsel Carrie Severino, who was given a platform to rehash debunked smears about Garland's judicial record on guns and government regulations.

  • Scalia Opinion Further Undermines Koch-Backed Group's Attack That Merrick Garland Is Anti-Business

    Blog ››› ››› ZACHARY PLEAT

    Following the release of a misleading “scorecard” from the Koch-backed National Federation of Independent Business (NFIB) -- which dishonestly represented Supreme Court nominee Judge Merrick Garland’s rulings on the D.C. Circuit as too deferential to government agencies -- the Alliance for Justice explained that Justice Antonin Scalia took “precisely the same view” as a dissent Garland joined. The dissent was related to an EPA case that the NFIB cited to criticize the nominee.

    The “judicial scorecard” released by NFIB on April 12 omitted important context to smear Garland as anti-business and overly deferential to federal government agencies. A Media Matters analysis of the 35 cases cited by NFIB, concerning Garland’s judicial opinions on the Environmental Protection Agency, Department of Labor, and the National Labor Relations Board, found that one or more judge appointed by a Republican was on the same side as Garland in 28 out of 35 -- or 80 percent -- of the cases.

    Contacted by Media Matters about NFIB’s “scorecard” claiming that Garland's judicial record indicates he is anti-business, top legal experts derided the organization’s claims as “silly” and “nonsense.” While purporting to represent the interests of small businesses, NFIB has in fact campaigned against environmental, labor and health care policies that most small businesses support.

    An April 21 blog post by the Alliance for Justice’s director of justice programs, Kyle Barry, further demonstrated that NFIB’s attacks against Garland’s rulings lack merit. Barry explained that when American Trucking Association v. EPA -- one of the cases cited in NFIB's scorecard -- reached the Supreme Court, Justice Scalia's majority opinion adopted the same legal reasoning seen in a dissent that Garland joined, calling for the case to be reheard before the full D.C. Circuit.

    As Barry explained, Garland's position in the case “was dictated not by ideology or bias toward special interests, but by adherence to precedent that he swore a judicial oath to uphold”:

    Among the cases NFIB cites is American Trucking Association v. EPA, which held that the Clean Air Act’s requirement that the Environmental Protection Agency set air quality standards violates the “nondelegation” doctrine—in other words, that Congress impermissibly delegated legislative power to the EPA. Judge Garland didn’t participate in the panel decision, but he did vote to rehear the case with the full D.C. Circuit, and he did join Judge David Tatel’s dissent when rehearing was denied.

    Based on Judge Tatel’s dissent, NFIB concluded that Judge Garland “would have voted for the EPA,” and in this instance that’s totally fair. (This situation is very different from when a judge votes on a petition for review but doesn’t write or join any opinions, in which case the judge’s views are unknown.) Judge Tatel made clear that the Clean Air Act is in line with years of binding Supreme Court precedent. He wrote that the statute limits EPA discretion in ways “far more specific than the sweeping delegations consistently upheld by the Supreme Court for more than sixty years,” and complained that “[n]ot only did the panel depart from a half century of Supreme Court separation-of-powers jurisprudence,” it “stripped the [EPA] of much of its ability to implement the Clean Air Act, this nation’s primary means of protecting the safety of the air breathed by hundreds of millions of people.”

    The problem for NFIB—and all those who wish to portray Judge Garland as a lawless anti-business radical—is that, on appeal in the Supreme Court, Justice Scalia wrote a unanimous opinion taking precisely the same view. Overturning the D.C. Circuit panel, Justice Scalia wrote that the Clean Air Act “is in fact well within the outer limits of our nondelegation precedents.” He explained that “a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action,” and that the Supreme Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”

    In other words, Judge Garland’s position was dictated not by ideology or bias toward special interests, but by adherence to precedent that he swore a judicial oath to uphold.

  • The Familial Ties That Bind The Anti-Garland Judicial Crisis Network To Its Dark Money Funder

    Blog ››› ››› MATT GERTZ & ZACHARY PLEAT

    A Media Matters investigation of the discredited right-wing group Judicial Crisis Network (JCN), the main source of baseless smears against, and false characterizations of, Supreme Court nominee Merrick Garland, reveals a familial web of self-dealing between the organization, a major dark money funder of JCN called the Wellspring Committee, and a third nonprofit that also receives funding from Wellspring.

    Judicial Crisis Network and Wellspring Committee

    Video by John Kerr, image by Sarah Wasko.

    JCN Has Emerged As Right-Wing Media's Primary Source Of Supreme Court Misinformation

    The Judicial Crisis Network Rebranded Itself To Whitewash Its Lack Of Credibility. In the weeks following the death of conservative Supreme Court Justice Antonin Scalia, the Judicial Crisis Network (JCN) re-emerged as a major source of misinformation about potential nominees rumored to be under consideration by the Obama administration. JCN was founded as the Judicial Confirmation Network during the second Bush administration; its aim was to obfuscate the often-far-right records of that administration's judicial nominees in a push to guarantee an "up or down vote" on "every nominee." During the Obama administration, JCN pivoted to smearing nominations for the Supreme Court as well as nominees for other federal and state-level openings. [Media Matters, 3/18/16]

    JCN Has Falsely Characterized Merrick Garland's Record On Guns. On March 11, after the news broke that Supreme Court nominee Merrick Garland was one of President Obama's likely choices to fill the court vacancy, JCN chief counsel and discredited right-wing legal analyst Carrie Severino published a column in National Review falsely claiming that Garland has a "very liberal view on gun rights." She also claimed that he upheld an "illegal Clinton-era regulation" that would have created a registry of gun owners. Numerous judicial experts noted that JCN and Severino had mischaracterized Garland's past decisions, but the false accusations were still promoted by the National Rifle Association (NRA) and Fox News hosts Bret Baier and Bill O'Reilly, and used as talking points on ABC's This Week and Fox's Fox News Sunday. [Media Matters, 3/21/16]

    Dark Money Group Wellspring Committee Is A Major Funder Of JCN

    The Wellspring Committee Has Been Directly Funding JCN Since 2010. A March 23, 2015, Daily Beast story explained that a dark money group called the Wellspring Committee, created by political operatives tied to the industrialist Koch brothers for the purpose of "pumping funds to other dark money Koch-backed groups," has been a major source of JCN's funding, directly funding the organization since 2010. [The Daily Beast, 3/23/15]

    Wellspring Was Reportedly Founded By The Koch Brothers. A March 29 Daily Beast story reported that Wellspring was founded "in 2008 by none other than the infamous Charles and David Koch, together with their political Svengali, Richard Fink." The article cited Politico investigative reporter Kenneth Vogel in reporting that "Wellspring raised $10 million from attendees at the Kochs' donor seminars, right after it was founded." [The Daily Beast, 3/29/16]

    JCN Received Over $9 Million In Grants From Wellspring Between 2012 And 2014. Wellspring's Form 990 financial disclosure documents show that from 2012 through 2014, Wellspring granted over $9 million to JCN. According to the forms, Wellspring granted $1.155 million to JCN in 2012, $1.435 million in 2013, and $6.665 million in 2014. In each of those years, JCN was by far the largest grantee of the Wellspring Committee, receiving 53 percent, 40 percent, and 80 percent of Wellspring's granted funds, respectively. [GuideStar.org, accessed 3/21/16]

    Wellspring Grants Represented 30 Percent Of JCN's Revenue In 2012 And 25 Percent In 2013. JCN's 990 financial disclosure forms show that the grants reported in Wellspring's 990 forms comprised approximately 30 percent of JCN's revenue in 2012 ($4.99 million total) and 25 percent ($5.775 million total) of its revenue in 2013. JCN's 2014 Form 990 was unavailable. [Foundation Center, accessed 3/21/16]

    Wellspring Received All Of Its 2014 Revenue -- $7.8 Million -- From Just Three Undisclosed Donors. A November 24 article from the Center for Responsive Politics on Wellspring's $6.6 million grant in 2014 to JCN explained in part how Wellspring is funded: "Wellspring received all of its 2014 revenue of $7.8 million from just three contributions -- one of which was a transfer of $6.95 million, according to the annual form 990 it filed this month. Like other (c)(4) organizations, Wellspring is not required to disclose the identities of its donors." [Center for Responsive Politics, OpenSecrets.org, 11/24/15]

    Wellspring, And JCN Have Family Ties Among Officers And Through Another Wellspring Recipient, The Catholic Association Inc.

    Wellspring's President Helped Launch JCN And Is Married To JCN's Treasurer. The November 24 article from the Center for Responsive Politics reported on Wellspring and JCN's family ties, explaining, "Wellspring was founded and is still headed by Ann Corkery, a lawyer who for years has been involved in conservative fundraising and also helped launch JCN. Her husband, Neil, is JCN's treasurer. Their daughter, Kathleen, is on Wellspring's board. [Center for Responsive Politics, OpenSecrets.org, 11/24/15]

    JCN Paid Wellspring President's Husband $98,000 In 2011-13. JCN's financial disclosure forms show that between 2011 and 2013, it paid $98,000 in compensation to Neil Corkery, the treasurer of the organization, who is married to Wellspring's president Ann Corkery. [Foundation Center, accessed 3/30/16]

    Wellspring Granted Over $1 Million To Catholic Association Inc. Between 2012 And 2014. Wellspring's 990 financial disclosure forms show that from 2012 through 2014, Wellspring granted more than $1 million to the Catholic Association Inc. According to the forms, Wellspring granted $440,000 to the group in 2012, $60,000 in 2013, and $650,000 in 2014. [GuideStar.org, accessed 3/21/16]

    Wellspring Secretary And Treasurer Michael Casey Is Son Of JCN Board Member And Catholic Association Inc. Officer Dan Casey. Michael Casey, who is listed on Wellspring's 990 financial disclosure forms as its secretary and treasurer, is the son of Republican operative Dan Casey, who is a member of JCN's board and is reportedly "the political and PR brains" of the organization. Dan Casey is also listed on the Catholic Association Inc.'s 990 financial disclosure forms as its secretary and one of its directors. [GuideStar.org, accessed 3/21/16; The Daily Beast, 3/23/15]

    Catholic Association Inc. Paid Wellspring President's Husband And JCN Treasurer Neil Corkery $50,000 Over 2013 And 2014. The Catholic Association Inc.'s 990 financial disclosure forms show that in 2013, it paid $20,000 in compensation to Neil Corkery, and in 2014 it paid $30,000 in compensation. Neil Corkery was listed as the Catholic Association Inc.'s treasurer and one of its directors. [GuideStar.org, accessed 3/21/16]

  • Supreme Court Reporters Debunk Judicial Crisis Network Claim That Merrick Garland Is Anti-Gun

    ››› ››› ZACHARY PLEAT

    National journalists covering the courts and legal issues are rejecting the claims from the discredited Judicial Crisis Network that a 2007 vote by Supreme Court nominee Judge Merrick Garland to rehear a case on Washington, D.C.'s handgun ban means he is hostile to Second Amendment rights. In fact, Garland never voted to uphold the ban, and a very conservative Republican judge joined him in voting to rehear the case.

  • Myths And Facts On The Nomination Of Judge Merrick Garland To The Supreme Court

    ››› ››› ZACHARY PLEAT, TIMOTHY JOHNSON & PAM VOGEL

    Since the lead-up to President Obama's March 16 nomination of Judge Merrick Garland to the Supreme Court, the judge has faced misleading and false attacks, as well as a concerted push for continued obstruction of any Supreme Court nominee chosen by Obama. Here are the facts about the nominee, previous lines of right-wing attack, and information on the nomination and confirmation processes going forward.

  • Lies, Distortions, And Smears: How Right-Wing Media React To Obama's Nominees And Appointments

    ››› ››› ZACHARY PLEAT

    Throughout the Obama administration, conservative media have responded to the president's nominees and executive appointments with lies about processes, distortions of nominees' own words, and smears about nominees' past actions, with the goal of convincing Senate Republicans to obstruct the nominees or force Obama to withdraw them from consideration or relieve them of their appointments.

  • Right-Wing Media's Sexist Obsession With Clinton's Voice Following Her Primary Victory Speech

    Media Labeled Previous Attacks On Clinton's Voice "Sexist"

    ››› ››› ZACHARY PLEAT

    Right-wing media personalities reacted to Democratic presidential candidate Hillary Clinton's Florida primary victory speech by claiming she was "shouting angrily" and "screech speech," with MSNBC's conservative morning show host Joe Scarborough telling Clinton to "smile" during her speech. Media outlets previously blasted similar attacks on Clinton in February as "sexist."

  • National Review Smears Possible SCOTUS Nominee Jane Kelly For Being A Lawyer

    Judicial Crisis Network's Carrie Severino Also Misleadingly Claims Kelly Argued Convicted Child Predator "Was Not A Threat To Society"

    Blog ››› ››› ZACHARY PLEAT

    National Review's Carrie Severino is smearing 8th Circuit Court of Appeals Judge Jane Kelly for performing her basic legal duty when representing a client in 2005 as a public defender. Kelly is reported to be under consideration by President Obama to replace the late Justice Antonin Scalia on the Supreme Court. The Washington Post has already uncritically cited Severino's smear in a report on other judges the president may be considering.

    In a March 3 post to National Review's Bench Memos blog, Severino, current head of the discredited Judicial Crisis Network, said Kelly's success as a public defender in getting a plea deal for a client charged with receiving and possessing child pornography makes her unsuitable for the Supreme Court:

    President Obama is said to be vetting Judge Jane Kelly of the Eighth Circuit to replace Justice Scalia. The White House apparently sees some political value in the fact that she is from Iowa, and [National Review writer] Ed Whelan has rightly interpreted that calculation as an insult to Senator Grassley's intelligence.

    As the White House's vetting process unfolds, they will probably find other facts that are significantly less convenient.  For example, when Kelly worked as a public defender she helped secure a plea deal for one Casey Frederiksen, a convicted child predator.

    Severino's attack on Kelly was uncritically repeated in a March 7 Washington Post article, which explained that the right-wing Judicial Crisis Network "has hired a research firm to help excavate the records of potential nominees." The story mentioned that Severino "cited a plea deal that Kelly secured as a public defender for a child predator" to claim that Obama's nominee would be a liberal ideologue.

    But in her National Review piece, Severino misrepresented a Des Moines Register article on the court case to suggest that Kelly had asserted that, in her own opinion, her client posed no threat to society:

    According to a 2005 story in the Des Moines Register, shortly after Frederiksen was indicted, Kelly "argued her client was not a threat to society," an odd assertion to make on behalf of a man who had previously been convicted of sexually molesting a different girl.

    In fact, the Des Moines Register story in question shows that Kelly was presenting the view of a psychologist that her client had been seeing (emphasis added):

    Frederiksen's attorney, Assistant Public Federal Defender Jane Kelly, argued her client was not a threat to society. She said Frederiksen had been seeing a psychologist, who said that Frederiksen was not a danger to others.

    Besides misrepresenting reporting to smear Kelly, Severino's effort to single out Frederiksen as a client echoes past right-wing media attacks on Democratic presidential front-runner Hillary Clinton and former Department of Justice civil rights division nominee Debo Adegbile. Some media outlets smeared Clinton and Adegbile for their criminal defense work -- attacks that undermine the principles of the American criminal justice system. Conservatives criticized Clinton for representing an alleged rapist -- a job a judge appointed her to do -- and some attacked Adegbile for his legal representation of a man convicted of killing a police officer. The American Bar Association and many Republican lawyers have criticized such smears and explained that representing criminals is "consistent with the finest tradition of this country's legal profession":

    • American Bar Association: Legal Representation Of Murderer "Consistent With The Finest Tradition" Of American Lawyering.
    • American Bar Association President: Right To Legal Counsel A "Fundamental Tenet Of America's Justice System."
    • Former Attorney General Michael Mukasey: "You Shouldn't Judge A Lawyer By His Clients."
    • Former Bush Administration Official Peter D. Keisler: Acting Within "Honorable Tradition Of Lawyers Representing Controversial Clients" Does Not Make Someone "Unfit" For Service.
    • Kenneth Starr, Top Bush Administration Lawyers Denounced "Shameful" Republican Attacks On Lawyers.
    • Sen. Lindsey Graham: "This System Of Justice That We're So Proud Of In America Requires The Unpopular To Have An Advocate."
    • Former Bush Lawyer John Bellinger Called Attacks On Lawyers For Defending A Client "Inappropriate" "Cheap Shots."

    This is not the first time Severino has attempted to attack a nominee or candidate based on their criminal defense work. The Judicial Crisis Network's past efforts at guilt-by-legal-representation have been widely condemned as "McCarthyist," a "flagrant foul," "cynical manipulation," and "grotesquely distorting."