The “controversy around Leon Holmes,” according to an account by conservative Catholic political operative Deal Hudson, provided a “perfect opening” for Republicans to accuse Democrats of being anti-Catholic. According to documents related to Kavanaugh’s White House tenure released by the George W. Bush Presidential Library, Manuel Miranda, at the time counsel to Senate majority leader Bill Frist, circulated an e-mail blast to White House staff, including Kavanaugh, from the arch-conservative Catholic League. “catholicism on trial: religious test applied to judicial nominee,” it read, going on to describe Holmes as “a man of deep religious conviction” and accuse Democrats of having “unfairly tagged him a misogynist, misunderstanding what the pope, the U.S. bishops and Holmes have said regarding this matter.”
“It does not get better than this,” Miranda enthused in his cover note. Miranda later left his post over a scandal in which he was implicated in secretly accessing and leaking Democratic computer files about judicial nominations. Holmes was confirmed.
The religion wars only intensified when Bush nominated William Pryor to serve on the US Court of Appeals for the 11th Circuit. Because he was up for an appellate seat, Pryor generated more adamant Democratic opposition than had Holmes. Senators probed his hard-line beliefs on abortion, church-state separation, and LGBTQ rights, including questioning him about his rescheduling of a family vacation to Disney World because it coincided with “Gay Day,”and an amicus brief he authored as Alabama attorney general in the landmark Supreme Court case Lawrence v. Texas, in which he argued that gay sex should remain criminalized because the Court had “never recognized a fundamental right to engage in sexual activity outside of monogamous heterosexual marriage, let alone to engage in homosexual sodomy.” Pryor supporters, again, portrayed legitimate questions about a nominee’s position on abortion—a constitutional right that enjoys majority support among not only Americans as a whole but also among Catholics—as a de facto litmus test against Catholics.
- “The religious right, including ultraconservative Catholic special-interest groups, are the squeaky wheel in American politics."
“Their intention is smearing senators as anti-religious for asking questions,” said Peter Montgomery, senior fellow at People for the American Way, which has been in the thick of judicial nominations for decades. “In doing that they’re hoping to intimidate the senator somehow. They raise these questions when senators are asking the nominees about important issues like Roe v. Wade.”
Throughout this entire period, Kavanaugh was specifically enlisted by the Bush White House to engage the Catholic community, including about judges. He was asked, along with Karl Rove, to address supporters of the Catholic magazine Crisis. He also spoke about judicial nominations to a Pro-Life Pilgrimage from Legatus, a conservative Catholic network created by Domino’s Pizza founder Thomas Monaghan, for Catholic business leaders who have “committed themselves to study, live and spread the Catholic faith in their business and personal lives.” And he volunteered to be the office’s specialist on faith-based initiatives, “given my general interest and my previous religious liberty work in my pre-WH days.” Kavanaugh had served on the Religious Liberty Practice Group at the Federalist Society; in private practice he authored an amicus brief in a school-prayer case, arguing that student-delivered prayers at football games were constitutional (the Supreme Court held that they were not).
It was during the Pryor nomination fight that conservative advocacy groups first aggressively advanced the claim that Catholics were being excluded from the bench by the left. The Committee for Justice, led by former George H.W. Bush White House Counsel C. Boyden Gray, and the Ave Maria List, a political-action committee funded by Monaghan, ran newspaper ads in support of Pryor that targeted moderate and swing-state Democratic senators. The ads featured a picture of a closed courtroom door with a sign over it reading, “Catholics Need Not Apply”—the first of the phrase’s many appearances in confirmation campaigns.
Senate Republicans helped press the charge that Democrats were anti-religion. Hatch, then the chair of the Senate Judiciary Committee, told reporters, “It appears that nominees who openly adhere to Catholic and Baptist doctrines, as a matter of personal faith, are unqualified for the federal bench in the eyes of the liberal Washington interest groups. Period.”
But the Committee for Justice ads drew condemnation from other quarters, including from the Anti-Defamation League, which protested that they were “misleading and inflammatory.” A Washington Post editorial described them as “beyond the pale.” Senate Democrats mounted a filibuster, consigning Pryor to a recess appointment, but he was eventually confirmed in 2005 in a bipartisan deal.
The political battle, however, turned out to be far more damaging to the senators who had opposed Pryor’s confirmation. As the 2004 election season got underway, it became clear that an attack machine sounding the alarm about anti-Catholic bias was perfectly comfortable with harsh assaults on Catholic Democrats. Then–Senate minority leader Tom Daschle of South Dakota and Patrick Leahy of Vermont, both Catholics themselves, had denounced the Committee for Justice ads on the Senate floor. Daschle, declaring himself “proud of my Catholic faith,” said, “I know about the bias against immigrants and against Catholics. That was real discrimination. What is being spread this week is a falsehood uttered for partisan political purposes.”
Despite his public declaration of pride in his Catholic faith, Daschle would become a target of conservatives—including conservative Catholics—who sought to oust him from the Senate in order to pave a clear path for confirmation of Bush’s judicial picks. The 2004 elections, with John Kerry, another liberal Catholic at the top of the presidential ticket, featured brutal attacks on both men’s faith.
- “Their intention is smearing senators as anti-religious for asking questions.”
The Republican National Committee attacked Kerry’s Catholicism, launching a website, KerryWrongforCatholics.com, critical of his positions on abortion, same-sex marriage, and judicial nominations, noting that as senator he had pledged to “filibuster any Supreme Court nominee who would turn back the clock on the right to choose, on civil rights and individual liberties, on the laws protecting workers and the environment.” Kerry was also being Swift Boated, a campaign conceived in part by a PR firm, Creative Response Concepts, that would go on to become a player in the Catholic judicial-nominations network. The Committee for Justice launched a website and ad campaign called “Kerry’s Scary” to attack his views on abortion, same-sex marriage and the pope, as well as his judicial philosophy, calling the latter issue urgent because “Court watchers believe as many as four Justices might retire in the next four years.”
Conservatives also raised questions about Daschle’s Catholicism during his 2004 reelection bid, attacking him in ads over his stance on the judiciary, abortion, and LGBTQ rights. The stakes were high for those who dreamed of a conservative takeover of the courts: If Democrats reversed Republicans’ razor-thin margin in the Senate, they would control the chamber, giving them the ability to block Bush’s nominees, including for anticipated Supreme Court vacancies, or push through those nominated by a potential president Kerry.
Even before the campaign got underway, conservative magazines spread stories that Daschle’s bishop was denying him communion because he was divorced. Then the ads started. The Ave Maria List PAC spent $100,000 running ads accusing Daschle of misinforming South Dakota voters that he was against abortion. One ad said Daschle had once called abortion “an abhorrent practice,” but had later supported pro-choice groups as senator. “Tom Daschle tries to claim he’s pro-life even though his voting record and actions in Washington prove he’s not,” the ad charged. “Tom Daschle has changed and it’s time for South Dakota voters to make a change of their own.”
Another anti-Daschle ad campaign, titled “You’re Fired”—modeled on Trump’s reality-television show The Apprentice—was produced by the You’re Fired PAC and funded by Robin P. Arkley II, a California real-estate magnate. Arkley donated over half a million dollars to the effort.
“The people of South Dakota want to protect traditional marriage,” an affiliated website declared. “You’re Fired Inc. believes the Federal Marriage Amendment is the only way to prevent liberal, activist judges from imposing same sex marriage as they have in Massachusetts—on the rest of American society.” The site depicted a boardroom meeting, during which an executive concluded, “We have one too many Democrats around here and that’s not a good thing,” punctuating his statement with the trademark “You’re fired.” Another Arkley ad charged that Daschle “refused to protect marriage” and “would let liberal, activist judges redefine it.”
Daschle lost his reelection bid, the Republicans retained control of the Senate, and Bush beat Kerry, winning reelection to a second term during which he put John Roberts and Samuel Alito on the Supreme Court.
With the White House and Senate in Republican hands, and with the GOP riding high on passing same-sex marriage bans at the ballot box in 11 states, conservative activists set to work on getting Bush’s conservative judicial nominees confirmed. After the 2004 election, one of Arkley’s top aides, Ann Corkery, who had directed philanthropy at his loan-servicing firm, founded the Judicial Confirmation Network. The group blandly described itself as “an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States.” Yet Corkery and her husband Neil would soon become pivotal figures in a broadening coalition of conservatives as they prepared for the confirmation battles ahead.
Brett Kavanaugh (2nd L) is sworn in by Supreme Court Justice Anthony Kennedy (R) to be a judge to the U.S. Circuit Court of Appeals for the District of Columbia as his wife Ashley (2nd R) and U.S. President George W. Bush (L) look on during a swearing-in ceremony at the Rose Garden of the White House June 1, 2006 in Washington, DC.
That coalition, according to a 2006 account in Crisis magazine, was directed by a “war room” of activists “acquainted with each other through Catholic and conservative public causes.” Among them were major players from the Bush reelection campaign, including Gary Marx, who had led the campaign’s outreach to social conservatives, and Greg Mueller, described by Crisis as “the group’s public-relations maestro,” whose public relations firm, Creative Response Concepts, had advised Swift Boat Veterans for Truth. Today, CRC represents the Judicial Crisis Network as well as the Catholic Association, another advocacy group the Corkerys helped launch in 2007, to influence policy-makers on issues concerning “the family, Catholic institutions, religious liberty, and cultural values.” CRC did not respond to repeated requests to interview representatives of JCN and the Catholic Association.
According to Crisis, “Mueller, Leo, and their colleagues would provide the main talking points, media training, rapid response to any attacks on the nominees, assistance with ad buys, and ongoing legal analysis.”
“Our most important goals were to support the idea of judicial restraint, to define the character of the nominee within the first 24 hours, and to continue to provide support as the process wended its way,” Leo told Crisis, reflecting on the war room’s role in the successful confirmation of both Roberts and Alito. “To accomplish this, we engaged in a variety of approaches—an aggressive paid media effort, rapid response activity, and positive messages.”
Mueller described the war room in far more political terms. “We tried to take the approach of corporate crisis management, along with the daily political communications that go on in a political campaign.” It fell to Marx, fresh off the Bush-Cheney campaign and newly appointed as JCN’s first executive director, as Crisis wrote, to develop “a state-based strategy that would target the political pressure points—an organization that would make Democratic senators in Republican states feel the political heat.”
During Bush’s second term—as Kavanaugh’s nomination to the DC Circuit was held up over a period of years, with Democrats arguing that his role in drafting the Starr Report and in the investigation of the suicide of Clinton aide Vince Foster had marked him as too partisan to warrant his confirmation as a judge—the war room kicked in. JCN openly threatened Democratic senators with the Daschle treatment. If lawmakers filibuster Kavanaugh, JCN warned in 2006, a midterm-election year, “Americans in key states will react just as they did when former Senate Democrat leader Tom Daschle did the same thing. Americans care about judges and the role of the courts in our society.” The Senate confirmed Kavanaugh two weeks later, by a vote of 57-36.
Today, the president of JCN is not a public figure like Marx but a player so behind-the-scenes as to barely leave a public trace. But Daniel Casey, a public-relations, political, and “crisis” consultant, is a veteran of the Bork confirmation battle—a fight that conservatives painfully lost, triggering the scorched-earth organizing JCN spearheads today.
Then the executive director of the American Conservative Union, Casey was “a crucial player” in the Bork fight, said Patrick McGuigan, who worked then for the Free Congress Foundation, a political advocacy group founded by religious-right architect Paul Weyrich that helped push the GOP to the right. The dust jacket of Ninth Justice, a book McGuigan wrote with Weyrich’s daughter Dawn, detailing each move and countermove in the Bork fight, describes McGuigan and Casey as “intensely Republican, devout Catholics, ardent admirers of the nominee—who understood from the first moment of the battle that they were involved in the most significant political confrontation of their lives.”
- What’s more, the conservative network’s position on abortion doesn’t represent the majority of Catholics.
McGuigan, who now works as a journalist in Oklahoma, described his relationship with Casey as “co-captains” in the Bork battle, in which conservatives were heavily outspent and outmaneuvered by the liberal opposition. He said that at the time, there was “insufficient organization of ideas and messaging on the conservative side of things compared to the left side.” Casey’s forte, said McGuigan, was “neighborhood by neighborhood, precinct by precinct, household by household organization patterned after the labor unions, but on the conservative end of the spectrum instead. I think that’s what Dan was good at.” (Casey declined to be interviewed for this article, referring interview requests to Peter Robbio at CRC, who did not respond.) In the years after the failure of the Bork nomination, conservatives saw the appointment of Kennedy, and then of Bill Clinton’s nominees Ruth Bader Ginsburg and Stephen Breyer. Although Kennedy was nominated by a Republican, he proved a bitter disappointment to conservatives, particularly for his majority opinion in Lawrence in 2003, ruling anti-sodomy laws unconstitutional—a ruling that led, 12 years later, to the legalization of same-sex marriage nationwide.
During the Bork hearings, Casey argued that “the American people should be outraged that the liberals are spending millions of dollars to try to buy a Supreme Court seat.” Three decades later, Casey is the president of the moneyed advocacy organizations JCN and the related Judicial Education Project, as well as of Catholic Voices. He is also treasurer and director of the Catholic Association Foundation and the Catholic Association. Together, they are part of a multimillion-dollar dark-money campaign backing a relentless drive by Trump and his Republican allies in the Senate to reshape the federal judiciary for generations, from federal trial courts all the way to the Supreme Court, and to shape public opinion about Catholicism and religious liberty.
JCN does not disclose the identity of its donors. But the group has said it anticipates spending at least $10 million advocating for Kavanaugh’s nomination. While many of the early ads focused on promoting Kavanaugh as a mainstream, impartial jurist admired by former clerks of all political stripes, the most recent ads touted him a “grand slam for conservatives” and warned Democrats against succumbing to “pressure from East Coast liberals.”
After 2008, the Judicial Confirmation Network changed tacks, from battering the opponents of Bush’s court nominees to blocking President Barack Obama’s. JCN, now renamed the Judicial Crisis Network, was the first conservative organization to blast Obama’s selection of Sonia Sotomayor—a Catholic—as “a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.” Although JCN had repeatedly claimed that liberal Democrats had unfairly attacked conservative Catholics, it again did not hesitate to attack a liberal Catholic.
John Gehring, Catholic program director at Faith in Public Life, a liberal group that advocates for progressive expressions of faith in politics, said that for conservative Catholics, Obama’s presidency “was very formative to the idea that Catholic identity was under siege by an administration that had elitist contempt for what the church believes.” The University of Notre Dame’s invitation to the pro-choice Obama to deliver a commencement speech in 2009, said Gehring, triggered “a huge divide” and “an earthquake in Catholic political conversation.” The Obama administration’s policies, particularly the contraception benefit written into the Affordable Care Act, which became the core target of conservatives’ legal strategy on religious freedom, further inflamed the world of conservative Catholicism.
But Gehring argues that this “well-funded, deep network” has “had disproportionate influence on what Catholic identity is in the public square and in politics.” He said the network has helped to create the distorted impression that Catholic priorities are limited to opposing abortion and LGBTQ rights, when traditional Catholic social-justice teaching includes a range of issues such as immigration, poverty, and the environment. Gehring pointed out, as an example, that conservative Catholics ignore the 1891 papal encyclical, “Rights and Duties of Capital and Labor,” written in support of workers rights, including the right to unionize.
What’s more, the conservative network’s position on abortion doesn’t represent the majority of Catholics. According to the Pew Research Center, 53 percent of Catholics say abortion should be legal in all or most cases. O’Brien, of Catholics for Choice, also points out that “Catholic women have abortions at the same rate as women of other faiths or no faith.” Kavanaugh’s decisions as an appellate judge on reproductive rights and the role of religion in politics, O’Brien added, “underscore just how out of touch he is with the majority of Catholics who are pro-choice and who support a healthy separation between church and state.”
- “A government that suffocates something so elemental as freedom of religion is not likely to be respectful of any other right.”
During the Obama era, the dark money ramped up. The Wellspring Committee, a nonprofit formed in 2008 where both Corkerys have served as president, became the chief funder of JCN, bankrolling its campaigns to block Merrick Garland’s confirmation, and, under Trump, to support the nomination of Neil Gorsuch and other nominees to federal courts. According to an investigation last year by the Center for Responsive Politics, “most of Wellspring’s funds, in turn, came from a single mysterious donor who gave the organization almost $28.5 million—nearly 90 percent of its $32.2 million in revenues” in 2016. According to this report, Wellspring gave more than $23 million to JCN in 2016, quadrupling its 2015 donation to the group of $5.8 million.
Wellspring also donated money to the Catholic Association, another nonprofit the Corkerys helped found, this one to advocate on behalf of “religious liberty,” and to the Federalist Society. In yet another sign of the intimacy of this network, the association paid Leo, known as Trump’s Supreme Court whisperer, $120,000 for “management consulting.” (Leo also earned $435,000 from the Federalist Society that year, according to its tax return.) Neither Leo nor the Corkerys responded to requests for comment.
Another mysterious Corkery-linked company, BH Group LLC, created in 2016, donated $1 million to Trump’s inaugural committee. Not much is known about what BH Group does, or who its principals are, but in 2016, the Corkerys’ Wellspring Committee paid BH Group $750,000 for “public relations,” according to its tax return, and JCN paid the firm $947,000 for “consulting services.” And Leo later identified BH Group as his employer in an FEC filing.
In early May 2017, about a month after Gorsuch was confirmed to the Supreme Court, Leo was awarded the prestigious Canterbury Medal from the Becket Fund for Religious Liberty, billed by the organization as “religious liberty’s highest honor.” A major Christian-right legal firm, the Becket Fund is best known for its victory in 2014’s landmark Hobby Lobby case, in which the Supreme Court ruled that the Affordable Care Act’s requirement of contraceptive coverage violated the company’s religious freedom. In his acceptance speech at a gala held at The Pierre, a New York luxury hotel overlooking Central Park, Leo, in white tie, could barely conceal his elation that Trump had beaten the odds to win the White House. Looking back on the campaign, Leo recalled the “fear that permeated every day in that countdown to November 8” and rejoiced at the “amazing turn of events, thanks to our 45th president.”
With Trump as president, Leo is, for all practical purposes, on the inside, as a handsomely compensated guide to judicial nominees who will satisfy religious conservatives. JCN runs the outside game, spending its mounds of dark money to promote the president’s—or rather, Leo’s—judicial nominees.
But even as the Trump administration was already well on its way to stacking the judiciary, including the Supreme Court, with judges inclined to expand the reach of Hobby Lobby, Leo had not quite let go of the urgency of the Obama years—or what he’d seen as the threat of a potential Hillary Clinton presidency suppressing religious freedom. “As government policy becomes more grudging toward religious freedom, that attitude spreads in the broader culture. A hostile stance in Washington creates space for groups with kindred ideological designs,” Leo said, going on to warn of even more dire consequences. “A government that suffocates something so elemental as freedom of religion is not likely to be respectful of any other right.”
At one point, he released the tension with a joke at Clinton’s expense. “Of course everyone thought they knew how the election was going to go,” Leo said. “The Democratic nominee looked so confident, so relaxed, so content. With just days remaining, what could possibly go wrong?” And then, “Well, not everyone had access to Rebekah Mercer’s crystal ball.”
U.S. President George W. Bush speaks at the the Federalist Society's 25th annual gala at the Mayflower Hotel November 15, 2007 in Washington, D.C. Bush criticized the Senate's confirmation review of his judicial nominees during his speech.
At the time Leo spoke, Mercer’s family’s data-analytics firm, Cambridge Analytica, was not yet under federal investigation for harvesting private Facebook data and potentially violating US election laws. But even so, it was striking that he referenced the Mercer family—whose political giving is led by Rebekah and her father Robert, the reclusive, Trump-supporting, Republican financier—at a celebration of religious freedom, given that one of the family’s pet projects, Breitbart News, has long been a hotbed of Islamophobia and anti-Semitism. It turns out that Mercer had also long been a generous funder of an array of organizations in Leo’s orbit—the conservative legal and Christian organizations that claim to represent ordinary citizens fed up with Democrat-appointed “judicial activists” and Democratic “gridlock” in holding up Republican nominees.
Charity filings show that between 2013 and 2016, the Mercer Family Foundation gave a million dollars to the Becket Fund, on whose board Leo has served since 2014. Between 2013 and 2015, the foundation donated nearly $6 million to the Federalist Society. In fact, Rebekah Mercer’s ties with Leo go even deeper.
In 2014, Leo joined the board of a new group called Reclaim New York, led by Mercer and Steve Bannon, then ensconced at Breitbart. The group claims to provide citizen trainings to “empower citizens to engage their state and local government,” but critics call it an astroturf organization dedicated instead to sowing distrust in state and local government and laying the groundwork for far-right Republican candidates to win elections. In 2015, Reclaim New York shared office space with Cambridge Analytica in midtown Manhattan and paid the firm for data-analytic services. (Reclaim New York did not respond to a request for comment about Leo’s role.) In 2016, Leo, along with Mercer and Kellyanne Conway, now a top adviser to President Trump, incorporated a related lobbying organization, the Reclaim New York Initiative.
A core element of Leo’s strategy, throughout the Bush and Obama years, was to portray religious freedom, a treasured American virtue, as under siege by supposed government overreach and disdainful, elite liberal culture. In another May 2017 speech, this one before the Acton Institute, a conservative think tank, Leo placed the blame on the left for making confirmation battles “so intense.” Liberals, he said, want to invest the Supreme Court with “something close to absolute power,” including the “creation of rights found nowhere in the text or structure of the Constitution,” citing Griswold v. Connecticut, from 1965, which struck down laws criminalizing the sale of contraception; Roe v. Wade, from 1973, which legalized abortion; and Obergefell v. Hodges, from 2015, which legalized same-sex marriage.
But now, he said, thanks to Trump, liberals were finally losing control of the courts. “For constitutionalists,” Leo told the Acton Institute, “our improbable 45th president has turned out to be, to borrow a phrase from his predecessor, the change we’ve been waiting for.”
This article was reported in partnership with The Investigative Fund at The Nation Institute, now known as Type Investigations, where Sarah Posner is a reporting fellow. Additional research by Eli Clifton, Richard Salame and Maia Hibbett.