Bench Memos

Law & the Courts

Brennan Center Judicial Nominee Benefits from Democrats’ Dark-Money Double Standard

A recurring theme since Inauguration Day has been President Biden’s payback to the far-left dark-money groups that elected him, both in the substantive policies he has advocated and in his nominations. Myrna Pérez, his nominee to the U.S. Court of Appeals for the Second Circuit, has spent the past 15 years at one such group, the Brennan Center for Justice.

The organization is named for William Brennan, the Supreme Court justice who championed judicial activism and lambasted originalism and textualism. In Pérez’s own words, Brennan “made famous the idea of a ‘Living Constitution,’ the idea of a constitution that was not static or frozen in time but one that had to be evolving and dynamic in order to actualize its principles. That is the way the Brennan Center thinks about the world; it’s changing and dynamic, and we need to be ready to meet whatever moment is with us.”

The Brennan Center is not required to disclose its donors. It has extensive ties to other liberal dark-money groups, in addition to being one itself. Its largest source of funding has been George Soros’ Open Society Foundations, with millions more coming from the Tides Foundation. It claims to be nonpartisan while embracing a distinctly left-wing agenda.

The Brennan Center is guided less by Justice Brennan’s specific positions than by whatever happen to be the current fashions on the left. For instance, the Brennan Center took the position that the campaign-finance decision joined by Brennan in Buckley v. Valeo (1976) was too protective of political speech and should be overturned.

A major focus of the organization has been advocating for less freedom of speech in connection with elections while simultaneously attacking the most basic measures to ensure the integrity of elections. That includes any and all voter-ID measures, as well as efforts to update voter rolls. As director of the center’s Voting Rights and Election Program, Pérez has been at the forefront of the Brennan Center’s efforts in this regard.

She has not hesitated to wage her attacks in demagogic terms. She attributed what she calls “major backlashes against the expansion of the rights to vote” following President Obama’s election to “people having anxiety over the browning of America” and called recent voting regulations including voter ID and limitations on early voting “the biggest rollback of the right to vote since the Jim Crow era.”

She has taken the losing side of the Supreme Court’s voting-rights decisions in Shelby County v. Holder (2013) and the just-decided Brnovich v. Democratic National Committee. In the latter case, which involved a challenge to Arizona’s out-of-precinct policy and ban on ballot harvesting, she argued for an interpretation of Section Two of the Voting Rights Act that would have wreaked havoc on the nation’s election laws, but she argued that the contrary interpretation “would permit states to return to . . . Jim Crow-era restrictions.” She also invoked the goal of “alleviating Jim Crow efforts, past and present,” in her argument for restoring voting rights to ex-felons. She seems comfortable hurling the ugly specter of Jim Crow at anyone with a different view of election laws — a category broad enough to include six justices of the Supreme Court.

Pérez is one of the most blatant examples we have seen of Biden’s dark-money payback scheme, the nomination of judges who he knows will deliver via the courts the policy outcomes that the Left desires. She is not the only Brennan Center alumna to be nominated to a circuit judgeship. In July, President Biden nominated Jennifer Sung, who spent two years as a Skadden Fellow at the Brennan Center, to the Ninth Circuit.

Not surprisingly, neither nominee has raised any Democratic eyebrows, including those of Senator Sheldon Whitehouse, who fixates on dark money when the organizations reside on the far more modestly funded conservative side. During Pérez’s nomination hearing, Whitehouse’s questions focused on bringing out his agreement with the nominee on the Voting Rights Act and jury trials and their shared aversion to originalism. Missing was any intimation of the nominee’s dark-money background, never mind any of the notorious charts the senator likes to use for his paranoid attacks on groups he does not like.

That’s the way it is when the dark money at issue flows to groups that advantage Democrats. Tomorrow the Senate Judiciary Committee will hold a markup vote for Pérez. Expect its Democratic members to be in lockstep in support of this ideologue, without any intimation of an issue lurking in her dark-money background. Just imagine how differently they would behave if a Republican president nominated an advocate from a conservative organization.


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