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Republicans target progressive advocacy group amid opposition to Jackson


Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, at her confirmation hearings in Washington on March 23, 2022.

By Carl Hulse


Hundreds of progressive activists crowded into the Hamilton music venue a few blocks from the White House last Monday night to celebrate the nomination of Judge Ketanji Brown Jackson, listen to queen of funk Chaka Khan perform and hear someone, as the song goes, tell them something good.


Sen. Elizabeth Warren, D-Mass., delivered.


“Judge Ketanji Brown Jackson is going to make a fabulous justice,” Warren told the crowd filled with Black public defenders, who cheered the prospect that someone who looked like them and shared their professional background appeared headed to the high court for the first time.


The “Have Her Back” concert was organized by Demand Justice, the progressive judicial advocacy group that has become a favorite target of attack for Republicans as they line up against President Joe Biden’s Supreme Court nominee.


Republicans have assailed the “dark money” organization — its donors are undisclosed, like those of similar judicial advocacy groups on the right — for its calls to expand the Supreme Court in order to offset its conservative slant. Progressives contend that Republicans, through hardball tactics, effectively stole two seats on the high court, and adding justices is the only way to rebalance it.


Biden has not endorsed the move, and the commission he named to study it split on the issue and declined to weigh in. Jackson has also studiously avoided giving her opinion. But Republicans have cited Demand Justice’s fervent support for Jackson as evidence that she embraces the push. Her refusal during Senate Judiciary Committee hearings last week to reject the idea of adding seats to the court — she said it was a policy decision, not a judicial one — has only hardened those suspicions.


Sen. Mitch McConnell, R-Ky. and the minority leader, regularly criticizes Jackson’s support from progressives. In saying he would oppose her nomination, Sen. Thom Tillis, R-N.C., said that he was “disappointed that she is reluctant to take a firm stand against a liberal, dark-money court-packing scheme.”


“Birds of a feather,” said Sen. John Cornyn of Texas, one of many Republicans on the Judiciary Committee who pressed Jackson on why Demand Justice was supporting her, even as she testified that she had no relationship with the group. “I think a fair question is, if this group is so determined to see you confirmed, do you agree with their agenda?”


Democrats brushed off the idea that Jackson is the Demand Justice nominee.


“To suggest that you’re here merely because an organization supports you ignores your qualifications and the broad range of support you bring to this,” Sen. Dick Durbin, D-Ill., the chair of the panel, told her last month as the hearing opened.


The attention has been a double-edged sword for Demand Justice. It has raised the group’s profile and its ability to raise money, making March the group’s best fundraising month ever — more than 50% ahead of the second-best — according to one person with knowledge of its finances. But its work on Jackson’s behalf, part of about $12 million the organization is expected to spend this year, has complicated her effort to win confirmation by giving Republicans a ready line of attack and a justification to oppose her.


Brian Fallon, a former top Democratic operative and co-founder of Demand Justice, said some Republicans decided it would be better to go after the group rather than the judge herself.


“The right made a decision early on that they were unlikely to defeat Biden’s nominee since Democrats controlled the Senate, and it would be politically dicey to too forcefully oppose the first Black woman anyway,” he said.


Fallon and other progressives from Capitol Hill and the White House started Demand Justice in 2018, two years after Republicans effectively kept a Supreme Court seat open for President Donald Trump by refusing to even grant a hearing for Merrick Garland, President Barack Obama’s third Supreme Court nominee, citing the fact that it was a presidential election year. Organizers wanted to instill the same passion about the courts on the left as is usually found on the right.


The group began clamoring to add seats to the court and stepped up their calls after Republicans rushed through the confirmation of Trump’s third nominee, Judge Amy Coney Barrett, just days before he lost the 2020 election.


While the Federalist Society, a conservative group focused on the judiciary, is closely aligned with Republicans, Demand Justice has applied some of its pressure to Democrats, urging them to get more aggressive when it comes to filling judicial vacancies. Their efforts have cost the organization some friends, including Durbin, after they pushed last year for someone else to be chair of the Judiciary Committee.


They have also used their own version of hardball tactics to try to accomplish their goals. Demand Justice helped instigate an extraordinary public campaign to pressure Justice Stephen Breyer to retire while Democrats held the Senate and the White House, to ensure that the party would control the process of replacing him. Breyer, 83, ultimately announced in January that he would leave at the end of the court’s current term, opening the door to Jackson’s nomination.


When Biden took office, he chose Paige Herwig, a former Demand Justice lawyer, to help screen his judicial candidates, and the group intensified its campaign to diversify the professional background of federal judges, calling for more public defenders and civil rights lawyers in the mix of nominees, rather than the prosecutors and corporate attorneys that usually dominate.


The Biden administration has embraced that approach, with nearly 30% of its nominees having experience as public defenders. Jackson is the most prominent example. Demand Justice notes that is a stark change from even the Obama administration, which nominated three prosecutors for every criminal defense lawyer.

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