A judge in Arkansas has ordered TV stations to stop airing an ad from the conservative Judicial Crisis Network (JCN) attacking an Arkansas Supreme Court justice who is up for re-election. After Justice Courtney Goodson filed a lawsuit over the ad, a state court ruled that JCN's claims that Goodson asked the legislature for a pay raise were not supported by evidence and were probably libelous.
Based in Washington, D.C., JCN is spending more than $1.2 million to back former Arkansas Assistant Attorney General David Sterling in the May 22 state Supreme Court election, which is officially nonpartisan. That's as much as the total amount spent in the 2016 Arkansas Supreme Court race. This month's three-way race also includes Kenneth Hixson, who currently sits on the Arkansas Court of Appeals. Goodson's complaint noted that the candidates backed by JCN in the last three Arkansas Supreme Court elections "won each and every time."
The Arkansas Supreme Court has seven justices elected in nonpartisan primaries in which the candidate who gets more than 50 percent of the vote wins the seat. If no candidate gets a majority in the primary, the top two vote-getters compete in a runoff in November. Goodson's seat is the only one up for re-election this year.
This isn't the first time JCN has targeted Goodson. It also went after her when she ran for chief justice in 2016 because she had drafted an opinion for a unanimous court several years earlier striking down a state cap on punitive damages in lawsuits. The group's ads alleged that she took gifts and donations from trial lawyers who then benefited from her rulings. Goodson lost. Tort reform continues to be a pressing issue in Arkansas, where voters this fall will weigh in on a proposed constitutional amendment to give the legislature power to limit non-economic damages in lawsuits.
Goodson's lawsuit to stop JCN's latest attack ad was backed by the nonprofit Arkansas Judicial Campaign and Education Committee, which issued a "cease and desist" letter before filing suit. The watchdog committee was formed in response to years of escalating secret money, attack ads, and scandals in Arkansas judicial elections and works to promote fairness in judicial elections.
JCN is a "social welfare" nonprofit under section 501(c)(4) of the tax code. That means it doesn't have to disclose its donors. However, it has known ties to the Koch brothers and other corporate interests. JCN serves as a crucial hub in the network of secret-money groups funding Republican causes and pushing for judges who will limit the rights of women, workers, LGBTQ people, and others.
Funding a conservative court takeover
Since its founding in 2005 as the Judicial Confirmation Network, JCN has spent generously to influence the courts, including millions of dollars to push U.S. senators to confirm President Trump's nominees and to elect its preferred judges to state courts. It also has ties to the conservative Federalist Society, which has played a key role in Trump's selection of judicial nominees. Both JCN and the Federalist Society receive funding from the secretive Wellspring Committee, a Virginia-based political nonprofit that funds other conservative groups. The Center for Responsive Politics recently linked all three groups to a secret $1 million donation to Trump's inauguration, one of the largest such contributions.
A report on GOP efforts to stack federal courts recently released by the Democratic members of the U.S. Senate Judiciary Committee notes that "three anonymous donors funded the Judicial Crisis Network in 2015-2016." It also points out that the group "received $17.9 million from a single donor — nearly 97 percent of its revenue." The identity of that donor is unknown. The report describes how JCN and other secret-money groups have "used their power and resources to influence the selection of nominees and pressure Republicans to rush nominations through the Senate."
That pressure shows no signs of letting up. In fact, JCN recently announced an ad campaign that attacks Democratic senators for not moving fast enough on President Trump's judicial nominees — even while acknowledging a "record number" of confirmations. JCN's call for more Trump judges comes despite widespread concerns about the nominees' lack of gender and racial diversity and the fact that a record number of them have been rated "not qualified" by the American Bar Association.
In addition, JCN funds the Republican State Leadership Committee (RSLC), which also receives contributions from major corporations including tobacco companies and fossil-fuel interests. The RSLC in turn has spent millions on nonpartisan judicial elections in Arkansas, North Carolina, and other states.
In the Arkansas Supreme Court race, the RSLC is supporting the same conservative candidate as JCN. It's also attacking an Arkansas Court of Appeals judge with a "soft on crime" ad blasting him for a ruling in favor of the due process rights of a defendant accused of child rape. The same committee backing Goodson's lawsuit has sent a letter demanding that the RSLC stop running the ad.
An ethical minefield
JCN's effort to get their preferred judges on Arkansas courts has created an ethical minefield, showing the kind of problems that arise when big money dominates judicial elections.
The group has sounded the alarm over the fact that the judge who blocked its ad had a potential conflict of interest due to financial ties between his wife and Goodson's husband. But Goodson requested a new judge because of that conflict. "This election has been tainted by dark money ads and it is not the desire of the plaintiffs for the public to question the impartiality of this court when such can be solved by a reassignment," Goodson's attorneys said.
The other judges in the county also recused themselves and asked the state Supreme Court to appoint a special judge, which it promptly did. If the Arkansas Supreme Court reviews the order blocking the ad, the three justices elected with the help of JCN's money — Robin Wynne, Shawn Womack, and Chief Justice Dan Kemp — will have to decide whether to recuse themselves. The state's judicial ethics rules require judges to sit out any cases in which their "impartiality might reasonably be questioned."
JCN could also appeal to the U.S. Supreme Court on the basis that its First Amendment rights have been violated and seek an order allowing the ads to continue. The kind of "emergency" order entered by the Arkansas judge blocking the ads is rare because it raises serious free speech issues, with the American Civil Liberties Union of Arkansas condemning it as unconstitutional. The high court would have to balance JCN's free-speech rights against concerns about libel and the integrity of Arkansas' judicial elections.
If the Arkansas case does end up at the U.S. Supreme Court, Justice Neil Gorsuch would have to grapple with the ethical questions raised by the fact that JCN spent $17 million to support his nomination. As with Arkansas's state ethics code, the federal Code of Judicial Conduct also requires judges to sit out cases in which their impartiality could be questioned.
The Supreme Court confronted a similar ethical issue in a critical 2009 ruling in Caperton v. Massey, a case about a West Virginia judge who was elected with the help of $3 million in contributions from disgraced coal mogul Don Blankenship. The judge's refusal to recuse himself from a case involving Blankenship violated the due process rights of the other party to the lawsuit, the justices ruled. The money spent doesn't have to be decisive in getting a judge on the bench, they said, but merely have a "significant and disproportionate influence."
JCN spent far more than any other group seeking to influence the confirmation of Gorsuch, who was confirmed by only 54 votes in the Senate, the lowest number since Clarence Thomas's confirmation by 52 votes in 1991. The group's generous support for Gorsuch would certainly raise reasonable questions about his impartiality and lead to the same "risk of apparent bias" as Blankenship's money in the West Virginia case.