Wednesday, February 17, 2016

Dark money, National Review and the Arkansas Supreme Court race

Posted By on Wed, Feb 17, 2016 at 11:38 AM

click to enlarge JUDICIAL CRISIS NETWORK: Carrie Severino, pictured here in a 2010 appearance on C-SPAN. Just why is her dark money fund so interested in the Arkansas Supreme Court race? - C-SPAN
  • C-SPAN
  • JUDICIAL CRISIS NETWORK: Carrie Severino, pictured here in a 2010 appearance on C-SPAN. Just why is her dark money fund so interested in the Arkansas Supreme Court race?

We've reported in detail 
on the extensive outside spending from a D.C.-based, right wing advocacy organization called the Judicial Crisis Network in the race for Arkansas Supreme Court chief justice. The 501(c)4 group has now plowed almost $400,000 into ads attacking Associate Justice Courtney Goodson — although, as necessitated by the tortured rules of campaign finance, the JCN is not affiliated with Goodson's opponent, Circuit Judge Dan Kemp (even though its investment certainly seems intended to benefit his candidacy).

While looking for information about the JCN yesterday, look what popped up at the top of my Google results: A series of posts on National Review's website pursuing the same arguments against Goodson as the Judicial Crisis Network's attack mailers.

The first assails Goodson's coziness with class action attorneys; the second attacks her for a unanimous 2011 court decision striking down a state tort reform law; and, the third faults her for another unanimous decision invalidating Arkansas's voter ID law, a truly dubious line of attack that's the subject of the latest round of direct mail targeting Arkansas voters.

The posts are authored by Jonathan Keim and Carrie Severino, who happen to be the sole two staff members listed on the Judicial Crisis Network's website. Keim's position is listed as "counsel," while Severino, a former clerk to U.S. Supreme Court Justice Clarence Thomas, is the group's chief counsel and policy director (and founder). 

Evidently, National Review, the flagship of American conservative print media, allows its "Bench Memos" blog to function as a platform for a well-heeled dark money group to launch salvos in state level judicial races.

This would perhaps be less peculiar — though no less contemptible — if the Goodson/Kemp race truly did set up a clear liberal/conservative dynamic. But does it? Is Courtney Goodson, who was last week endorsed by the NRA for some godforsaken reason and who evidently held up the court's ruling on the same-sex marriage question for months, the model of an activist liberal judge? Severino uses Goodson's concurring opinion on the voter ID question to claim exactly that.

Goodson voted to strike down the law by seizing on an argument raised only in an amicus brief: that the law was unconstitutional because it hadn’t been passed by two-thirds of the legislature. She thought that this conclusion made it “wholly unnecessary to decide whether the Act added a new qualification to voting,” cleverly avoiding having to solve a contentious constitutional question.
Goodson outsmarted herself: she thought she was dodging a thorny question but in fact made an even more egregious error than her colleagues. They claimed that voter identification added qualifications to the constitutionally prescribed ones, an argument that at least is colorable (though far from meritorious). Goodson, on the other hand, claimed that requiring registered voters to show identification at the polls was an unintentional attempt to amend the requirements to get the registration in the first place. This is liberal judicial activism at its worst.

The funny thing is that, well, I think many liberals would agree with Severino's interpretation of Goodson's concurrence on voter ID as "cleverly avoiding having to solve a contentious constitutional question." Same with the same-sex marriage non-decision. Once again, the irony is rich: Goodson's careful attempt to hedge on a politically sensitive decision is now used as fodder by a hard right political organization to paint her, absurdly, as a liberal.

Meanwhile, Keim mines Goodson's personal history:

Goodson was first elected to the bench in 2008 as Judge Courtney Henry, when she won a seat on the Arkansas Court of Appeals. Two years later, with the help of Bill Clinton (who helped raise money for the race), she won a seat on the Arkansas Supreme Court. Around the same time, her then-husband filed for divorce and she began receiving sizeable personal gifts from a powerful Arkansas class-action lawyer named John Goodson. In 2010 alone, according to mandatory financial disclosures, John Goodson gave Judge/Justice Henry gifts totaling just under $100,000, including a $22,500 watch and a $6,700 coat. (For comparison, judges on the state’s courts of appeals receive an annual judicial salary of just over $161,000, and the median household income in Arkansas is around $40,000.) In 2011 she married Goodson and adopted his last name. Her disclosure forms from that year include a $12,000 Caribbean cruise paid for by Arkansas attorney W.H. Taylor, who also gave her a $50,000 trip to Italy the next year.

While we've seen ads in Arkansas attacking Goodson both for her acceptance of lavish gifts and her support for invalidation of the voter ID law, we haven't seen anything about tort reform. That concerns a 2011 case in which the justices unanimously upheld a lower court's verdict awarding a $48 million damages settlement to rice farmers, throwing out a statutory cap on punitive damages in the process.

I doubt we will, because the JCN is savvy enough to know what's more likely to sell with the average voter — who, after all, probably knows next to nothing about the Supreme Court race or any other judicial race (I know I certainly didn't before I became a reporter!). Tarring a candidate as being a "rich insider" or helping illegal immigrants fraudulently vote — that sells. Just listen to Donald Trump. An attack based on striking down a punitive damages cap? Probably not so much.

But I think I can guess which of those three issues is actually more important to the faceless donors behind the Judicial Crisis Network.

One other note on the JCN. It's no surprise that Carrie Severino is beating the drum on stonewalling any nominee that President Obama might propose to fill the vacant seat on the U.S. Supreme Court left by the death of Justice Antonin Scalia. But here's a nice piece of hypocrisy pointed out by Right Wing Watch: The JCN was originally created to ensure that conservative judges had a clear path to confirmation:

Severino’s group was founded during the George W. Bush administration as the Judicial Confirmation Network, with the stated mission of ensuring “that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” After President Obama was elected, the group conveniently changed its name and its mission.

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