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Breyer’s Retirement Is Likely to Spark More Dark Money Spending in 2022 Midterms

Nearly $100 million was spent to elect state supreme court judges across the U.S. during the most recent election cycle.

President Joe Biden speaks about the coming retirement of U.S. Supreme Court Associate Justice Stephen Breyer in the Roosevelt Room of the White House on January 27, 2022, in Washington, D.C.

Justice Stephen Breyer is retiring, giving President Joe Biden the first Supreme Court pick of his presidency and likely sparking even more “dark money” spending in the leadup to 2022 midterm elections.

Even before Breyer announced his retirement this week, groups funded by secret donors from both sides of the aisle had already started to weigh in on the impending vacancy.

As news of Breyer’s retirement broke, liberal dark money group Demand Justice tweeted a video ad calling for Biden to nominate “the first black woman Supreme Court Justice.” During his candidacy in the 2020 presidential election, Biden promised to nominate a black woman to the Supreme Court in the event of a vacancy. That pledge helped Biden secure a key endorsement from Rep. James Clyburn (D-S.C.) days before a crucial primary in his state.

Biden confirmed in a White House press conference on Thursday that he plans to appoint the first black woman to the Supreme Court before the end of February. “I’ve made no decision except one: The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity — and that person will be the first black woman ever nominated to the United States Supreme Court,” he said.

D.C. Circuit Court Judge Ketanji Brown Jackson has emerged as a frontrunner on the shortlist of potential Supreme Court nominees. Appointing someone like Jackson to the Supreme Court “would make quite a statement,” Brian Fallon, the executive director of Demand Justice, told The Atlantic. “We are confident Biden’s nominee will be installed before the October term,” he assured Roll Call. Breyer’s resignation letter, dated Jan. 27, stated his intention for the retirement to go into effect when the Supreme Court “rises for summer recess this year,” so long as his replacement has been confirmed.

Demand Justice quickly established itself as a top spender on Supreme Court nominations during former President Donald Trump’s administration, rivaling conservative dark money groups that had long dominated the space.

The liberal dark money group pledged to spend $10 million fighting the confirmation of Justice Amy Coney Barrett, twice the $5 million they pledged in 2018 when Justice Brett Kavanaugh was nominated.

Since the last Supreme Court fight, Demand Justice has attained its own tax-exempt status as a 501(c)(4) nonprofit and is no longer under the umbrella of Sixteen Thirty Fund’s sponsorship. Demand Justice did not respond to requests for comment on whether it plans to ever disclose donors.

Sixteen Thirty Fund is a liberal dark money behemoth that has sponsored numerous groups over the years and contributed money to federal super PACs for the first time during the 2020 election cycle, ultimately giving more than $57 million to liberal super PACs and political committees spending on 2020 federal elections.

Last year, Demand Justice also launched Balls & Strikes, a website that describes itself as publishing “original commentary and reporting about courts, the judges who preside over them, and the legal system they uphold.”

Within hours of when the news of Breyer’s retirement became public, Balls & Strikes published an article crediting Breyer’s retirement to being “shamed by your tweets.” The URL of the article reads “Stephen Breyer Retiring Huzzah.”

Demand Justice increased pressure on Breyer to retire after Biden took office. The 83-year-old Breyer was appointed in 1994, making him the second-longest-serving justice currently seated on the Supreme Court after 73-year-old Clarence Thomas.

Last year, the group marked the 11-year anniversary of the late Justice John Paul Stevens’ retirement announcement by paying for a billboard truck emblazoned with messages like “Breyer Retire” to drive around Washington, D.C., near the Supreme Court as well as online advertising on Facebook.

“The Left bullied Justice Breyer into retirement and now it will demand a justice who rubber stamps its liberal political agenda,” Judicial Crisis Network president Carrie Severino said in a statement, adding “And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them.”

Judicial Crisis Network, legally named the Concord Fund after it rebranded at the start of 2020, is a dark money group that does not disclose its donors and is part of a shape-shifting network of secretly-funded conservative nonprofits that helped Trump reshape the federal judiciary.

The network is connected to Leonard Leo, a powerful leader in the conservative legal movement who helped shape Trump’s unprecedented effort to stack the federal judiciary with conservative judges.

Judicial Crisis Network pledged to spend tens of millions to place conservative justices Kavanaugh, Barrett and Neil Gorsuch on the Supreme Court during Trump’s administration and millions more to block President Barack Obama’s 2016 Supreme Court pick, Merrick Garland. As the most recent fight over Barret’s nomination heated up, Severino told CNBC that Judicial Crisis Network would “match” and “surpass” the $10 million in spending pledged by their liberal counterpart, Demand Justice.

The conservative dark money group raised about $20.4 million in the year leading up to June 2020, shortly before Barrett was nominated to fill the last Supreme Court vacancy, according to its most recent tax return.

Judicial Crisis Network’s affiliated Judicial Education brought in more than $50 million in revenue after it rebranded as the 85 Fund at the start of 2020. The group now operates under multiple different identities using “fictitious names,” including an alias focused on elections.

Severino told The Hill last year that her group expects to target Senate Democrats up for reelection such as Sens. Mark Kelly (D-Ariz.) and Raphael Warnock (D-Ga.) in the lead up to 2022 midterms.

Other likely targets of advertising related to the Supreme Court vacancy include moderate Senate Democrats Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.) whose votes have not always lined up with Biden’s agenda.

“It’s going to be up to people like Joe Manchin and Kyrsten Sinema whether they want to continue to endorse Biden’s agenda on this front,” Severino said of the moderate senators who may oppose a Supreme Court nominee framed as too liberal.

“If Sinema and Manchin are ungettable — and I don’t think we’ll know any of that until we have a name — then the pressure will be on,” Heritage Action executive director Jessica Anderson told Politico of the potential political fallout, asking “Does a full-throated support of Biden’s Supreme Court nominee get you out of danger?”

The Supreme Court vacancy provides ample fodder for ads and creates an environment ripe for “issue advocacy” ads that attack or boost a candidate without explicitly advocating for their election or defeat. Issue ads can be paid for by dark money groups that are not required to disclose their donors and often do not even need to disclose their spending to the Federal Election Commission.

“The right-wing donors who stocked the Court with its 6-3 supermajority will deploy massive dark-money firepower in an attempt to defeat any Biden replacement,” Sen. Sheldon Whitehouse (D-R.H.) said in an emailed statement.

Conservatives have also expressed concerns about dark money spending on the Supreme Court seat coming from the left.

“We definitely are going to be focused on highlighting the corruption of the Biden administration and the dark money ties that have characterized his judicial nominees to date,” said Severino, who runs a dark money group that does not disclose its donors.

Breyer’s seat is not the only judicial nomination attracting big money.

A new Brennan Center report using OpenSecrets data found that nearly $100 million was spent to elect supreme court judges in states across the country during the most recent cycle of judicial elections — more money and more spending by special interests than any cycle in history. Major spenders on state judicial elections include the Republican State Leadership Committee, which received seven figures from Judicial Crisis Network.

Democrats have continued to leverage rules created to benefit their Republican counterparts while Sen. Mitch McConnell (R-Ken.) was Senate Majority Leader, according to Politico. The rule change limits debate on some nominees, something Senators in both parties also agreed to temporarily during two years of Barack Obama’s presidency starting in January 2013.

The new rules have helped Democrats confirm judges during Biden’s first year as president at a pace rivaled only by former President Ronald Reagan’s initial 365 days in office.