Alliance for Justice is a group of over 100 progressive organizations focused on legal issues to advance the liberal causes of its members and donors. AFJ is best known for its Judicial Selection Project, which has turned federal judicial nominations into a highly partisan process. The Project encourages the rapid confirmation of Democratic-appointed judges while calling for Senate filibusters of Republican nominees. AFJ also provides legal assistance to left-leaning nonprofit organizations and foundations in order to help them in their advocacy and lobbying. AFJ has even advised its members to “take advantage” of the controversial Citizens United Supreme Court decision while simultaneously condemning the case in one of its First Monday films. Nan Aron, AFJ’s president, promised to engage in “scorched Earth” tactics to defeat a Republican president’s judicial nominees.
Background
Alliance for Justice (AFJ) was founded in 1979 by its current president, Nan Aron. AFJ grew out of the Council for Public Interest Law, which was formed in 1975. The June 1975 issue of the American Bar Association (ABA) Journal explains that the project was meant to be a two to three year joint venture funded by the ABA, the Ford Foundation, the Rockefeller Brothers Fund, and the Edna McConnell Clark Foundation. One of the Council’s co-chairmen, Mitchell Rogovin, was at that time the general counsel for Common Cause, a liberal advocacy group. ??“Public interest” law firms began popping up in the 1960s to provide legal aid to underrepresented individuals and groups and to support environmental causes. The Council’s primary goal was to find more funding and support for these firms, thereby advancing liberal causes.
When Aron joined the Council in 1979, she pushed to change the organization. Aron’s original pitch to public interest advocacy groups asked if they would pay dues to become members of “an association devoted to representing their interests on issues affecting their funding or issues affecting the access of their clients to the courts.” One of the primary goals of the newly-formed Alliance for Justice was to block proposed reforms on payment of large attorney’s fees for public interest litigation brought by AFJ and its allies. The Wall Street Journal said that this funding scheme “could make the American taxpayer the largest single contributor to the ‘public interest’ movement.” AFJ succeeded in blocking the proposed reforms.
Over time, AFJ’s mission changed. Today, much of AFJ’s current efforts focus on the federal judiciary and the nomination process, as well as advocacy for nonprofit organizations.
Member organizations span a wide range of progressive causes, including nine environmental organizations, five abortion rights advocacy groups, three law school clinics, and two labor unions. AFJ took in over $3.6 million in 2011 and held over $5.4 million in total assets. AFJ has offices in Washington, DC and Oakland, CA.
Activities
Politicizing Judicial Selection
The Judicial Selection Project is probably the most well-known activity of AFJ. AFJ’s work in this area has helped make the U.S. judicial confirmation process more polarized and partisan.
AFJ’s Judicial Selection Project began in late 1984, when Newsweek reported that the AFJ-coordinated effort would “collect tips from local lawyers on possible candidates for the federal bench” and use the information “to mount full-fledged campaigns” against then-President Ronald Reagan’s appointees to the federal courts.
By 1987, AFJ had succeeded in turning the judicial nomination process into a political issue. Thanks to AFJ, “borking” is a widely known tactic in the judicial nomination process. The term is derived from AFJ’s scorched-Earth attack against D.C. Circuit Court of Appeals Judge Robert Bork, who was nominated to the Supreme Court by Reagan in 1987. Bork’s opponents bragged that they would engage in an “all-out frontal assault like you’ve never seen before.” Aron claimed that there would be a “mass mobilization,” a tactic that The Washington Post editorial board referred to as engaging in “a mud-pie contest.”
And mud-slinging was what AFJ did. Nancy Broff, then director of the Judicial Selection Project, claimed that “Bork is somebody, who, to sum it up very simply, would close the door to the courts for the poor and the powerless.” Aron claimed that in August of that year, AFJ was “in triple gear” and that AFJ “constructed much of the case” to oppose Bork. Aron even brought politics into the ABA’s rating process, telling The Washington Post that while at the association’s convention, “I think I’ve talked to every lawyer here.” And it paid off: the ABA, which founded AFJ’s predecessor group, split its vote in rating Bork “well-qualified.” The ABA panel rated him “exceptionally well-qualified” only five years earlier. A not-unanimous vote was rare and showed contention at the ABA, but nonetheless, Aron praised it as “wonderful news.”
The assault on Bork culminated with a statement by Senator Ted Kennedy of Massachusetts:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
This coordinated outrageous and personal attack forever changed the tone of judicial confirmations. Bork was not confirmed to the court, and AFJ had its first scalp. Since then, judicial selection has been a highly partisan battle rather than an honest debate about a judge’s qualifications for office.
Aron stressed the importance of making judicial selection a political matter. As she told The Washington Post in October 1987, “We applaud the fact that the process is political, and with more modern technology it’s become even more so with even more opportunities for Americans to let their concerns be known. I don’t think this is cause for alarm or dismay.”
Guiding Advocacy Groups
Although not as prominent as the judicial nomination campaign, the advocacy program of AFJ actually commands the largest amount of its operating budget–almost $2 million in 2011. “Bolder Advocacy: Change the World with Confidence” educates nonprofit organizations and foundations on ways that they can create change. The program offers guidance on what is allowable lobbying under IRS tax code. “Advocacy coaches” provide training and workshops for member organizations and other groups. The website offers several resources and tools, including tips on starting your organization, influencing ballot measures, organizational assessments, and community organizing resources. The Charles Stewart Mott Foundation and The California Endowment helped to start the Resources for Evaluating Community Organizing (RECO) tools. Others who assisted in the project include individuals from the Ford Foundation, Movement Matters, the Virginia Organizing Project, Discount Foundation, Center for Community Change, and Woods Fund of Chicago.
Promoting Liberal Causes Through Documentaries
The First Monday Campaign began in 1994 and features a new short documentary each year on an issue about which AFJ believes is important to educate law students and the public. Although there are AFJ member organizations that push these issues, several AFJ projects correlate with foundation donors.
AFJ is also interested in “educating” law students through its First Monday documentary series. Each year’s crop of new students is another group of future lawyers that can be convinced to work for AFJ’s and its members’ left-leaning causes.
In 2001, the Surdna Foundation contributed $100,000 to AFJ “[t]o continue building a national network of well trained, youth-led efforts to combat gun violence.” In 2000 and 2001, AFJ released America Up In Arms and Deadly Business: How the Gun Industry and the NRA Market Mayhem to America, which discussed gun violence in America.
In 2009 AFJ received a grant of $40,000 from the John Merck Fund “To hold US officials who provided legal justification for torture accountable for their actions, to reform the government agencies that failed to prevent torture, and to engage the public in ongoing calls for accountability.” The First Monday film Tortured Law was released in 2009.
Lobbying for Liberal Agenda
The more direct lobbying done on behalf of public interest groups is accomplished by AFJ’s 501(c)(4) organization, Alliance for Justice Action Campaign (AFJAC). AFJAC, which was founded in 2004, engages in “lobbying and advocacy for a fair and independent judiciary, common-sense gun laws, and reasonable and efficient nonprofit tax and election laws.” In 2005 AFJAC received a $60,000 donation from the left-wing Tides Foundation. Because AFJAC is a 501(c)(4) nonprofit organization, AFJAC is not required to disclose its donors.
Motivation
AFJ initially concentrated on ensuring that public interest legal groups could still obtain large legal fees from the government in order to pursue its causes. The group saw this as an important aspect of its mission to ensure “equal access” to courts of law. But AFJ did not find it sufficient to merely get a case before a judge with the help of taxpayer funds. Rather, the organization began to focus on those judges who would determine the outcome of their cases.
After its initial success in thwarting Robert Bork’s Supreme Court nomination, AFJ has continued its aggressive tactics to attack the judicial nominees of Republican presidents. In turn, AFJ also supports most, if not all of the Democratic nominees to the federal bench, and has been critical of any delays in their confirmation. During Republican administrations, AFJ is most concerned with questioning the qualifications, fitness for office, and judicial philosophy of the nominees to the federal courts. During Democratic administrations, AFJ finds ways to discuss the “crisis” of judicial vacancies.
As a corporation organized in compliance with Section 501(c)(3) of the Internal Revenue Code, AFJ is not required to disclose its donors. However, some major donors can be identified from other required public filings. Left-leaning nonprofit foundations, including George Soros’s Open Society Institute, are some of the largest known benefactors to AFJ. This funding is sometimes given for general operating expenses, but may also be earmarked for specific projects. Since 2000, several foundations stand out in their support of AFJ.
- Ford Foundation: $3.36 million
- Atlantic Foundation: $2.45 million
- The Susan Thompson Buffett Foundation: $1.81 million
- Open Society Institute: $1.6 million
- Richard and Rhoda Goldman Fund: $1 million
More recently, in 2010 and 2011, AFJ has received its largest foundation contribution from The Susan Thompson Buffett Foundation, which donated nearly $500,000. Other major donations include two $225,000 donations from the donor-directed Vanguard Charitable Endowment Program; just under $384,000 in total donations from The California Endowment; $282,500 from the Ford Foundation, $100,000 From the John D. and Catherine T. MacArthur Foundation; and $75,000 donations from the Arcus Foundation and the George Gund Foundation.
Black Eyes
Clarence Thomas and Anita Hill
Supreme Court Justice Clarence Thomas is only the second African American nominated to sit as a member of the highest court in America. But his July 1991 nomination to the Court stands out as one of the most contentious political and judicial battles in recent memory. Thomas was the target of a massive “borking” campaign by AFJ and its allies to keep him off the Court. AFJ worked directly with Senate Democrats in doing opposition research and in pushing sexual harassment rumors. The mud-slinging and callous treatment of Thomas even caused Arthur Kopp, president of People for the American Way, a liberal group that frequently worked alongside AFJ, to tell The Washington Post “I watch [the testimony] and I feel sick.” Kopp said “This process is going to poison the water for a long time… There is no one taking any joy in this.”
President George H.W. Bush nominated Thomas to the U.S. Court of Appeals for the D.C. Circuit in 1990, and the Senate approved him, but not without threats of future challenges from AFJ. By the summer of 1991, George Kassouf, a top researcher for AFJ, had been researching Thomas for two years. Kassouf claimed to have conducted over 100 interviews and reviewed a millions of pages of documents on the future Supreme Court Justice. Carol Seifert, who was deputy director of AFJ, said that it had three people working on it, and tracked down leads from AFJ’s member organizations. Seifert said that AFJ would research Thomas, then “work with the [Senate] Judiciary Committee” to share the research on Republican nominees.
And when attacks against Thomas’s public record failed, allegations of sexual harassment by one of Thomas’s former co-workers, Anita Hill, would become the deciding factor in the confirmation hearings. In the racially-charged hearing that would follow, Law Professor Derrick Bell, credited as an originator of critical race theory, writing in Newsday, referred to AFJ as an “Orwellian interest group” and said that “[l]eft-liberals must save progressive politics” from groups such as AFJ.
There are several different accounts of how the Anita Hill story began to churn in the Washington rumor mill, but most all of them point to AFJ as the source. Articles in the ABA Journal, Newsweek, The Washington Post, and Newsday all stated that Aron received a call from one of Hill’s former Yale classmates and then passed along the information to the Senate Judiciary Committee—most likely to the staff of Senator Howard Metzenbaum. The May 1992 report by Senate Special Counsel Peter Fleming Jr. said that Aron passed the information to Judiciary Committee aides and that on October 2, 1991, three days before the media broke the story of Hill’s accusations, Aron called a Judiciary Committee aide and asked if Hill was ready to go public. The book Supreme Discomfort puts Kassouf front and center as being the first one to learn of Hill.
Contradictory on Citizens United
One of AFJ’s First Monday films, Unequal Justice: The Relentless Rise of the 1% Court, plays on the terminology of the “Occupy” movement to criticize the U.S. Supreme Court. The film proposes that the Court has taken “judicial activism to new levels” and favors businesses over individuals. One of the highlighted cases is Citizens United v. Federal Election Commission (2010), a controversial campaign finance law ruling that said unions and corporations have free speech rights and may spend money out of their own treasuries to make independent expenditures for or against candidates for office.
In the documentary, narrator Katrina Vanden Heuvel, editor of the liberal newsmagazine The Nation, explains that Citizens United is the “one case [that] stands alone as the most notorious Supreme Court decision favoring corporate interests.” The documentary shows video clips of protestors and explains that the decision is very unpopular. But the film leaves out two facts that would be important to AFJ members.
First, it fails to mention that unions receive the same First Amendment protections as corporations. As of October 2012, the National Education Association (NEA) and the Service Employees International Union (SEIU), both labor unions, are members of AFJ. In 2011, SEIU gave AFJ a $10,000 donation and another union, the American Federation of State, County, and Municipal Employees (AFSCME) made a contribution of $5,000 and another $10,000 contribution as an event sponsor.
Second, Unequal Justice also does not mention that certain nonprofit corporations also receive free speech rights. This is especially important information for the dozens of nonprofit members of AFJ. But a review of AFJ’s website and projects reveals that it is very interested in these changes. On its Citizens United issues page, AFJ explains that:
What gets less attention, however, is the fact that labor unions and nonprofit organizations focused on the social good were also affected by the legal changes triggered by Citizens United. The same doors that opened for increased campaign spending by business interests opened for spending by groups like the Human Rights Campaign, the Sierra Club, and NARAL Pro-Choice America.
Furthermore, in its materials on electoral advocacy in the wake of Citizens United, AFJ states:
More than ever, nonprofit corporations can and should actively participate in elections. Even if you think the case was wrongly decided, 501(c)(4)s and other nonprofit corporations (except for 501(c)(3)s) should take advantage of it—use it to strengthen democracy by increasing your public communications about the candidates and what’s best for the future of our country. [Emphasis added]
Aron’s recent article in The Nation is also critical of “the implications of Citizens United” that have led to “the current onslaught of political ads funded by secret right-wing donors.” But in April of 2012, AFJ submitted comments to the Senate in opposition to the DISCLOSE Act, which would require greater disclosure by section 501(c)(3) and 501(c)(4) organizations, even with some exceptions made for 501(c)(3) organizations.
Hypocrisy on Judicial Selection
“You name it, we’ll do it.”
-Nan Aron in USA Today, Nov. 1, 2005, on opposing the nomination of Sam Alito to the Supreme Court.
The Alliance for Justice has made it clear that it will stop at nothing to halt the confirmation of judges who do not agree with its progressive worldview. Amidst the Thomas hearings in 1991, an AFJ staffer told Newsday, “Let’s just say that we get stories all the time [about nominees] and then you give it to the [Judiciary] committee.” Although AFJ claims to support an independent judiciary, it really means that it only favors judges appointed by Democrats. Much of Aron’s and AFJ’s opposition to candidates appears to be based not on judicial qualifications but by party affiliation and personal political views. It is especially curious considering the judicial record of many of those nominees.
In 1975, as president of The Women’s Legal Defense Fund, Nan Aron opposed the nomination of John Paul Stevens, who was nominated by Republican Gerald Ford. Aron stated in a letter to the Chairman of the Senate Judiciary Committee that she “urges [him to] re-examine the credentials of Judge Stevens as to his fitness to serve on the Supreme Court and further urges [him] to vote ‘no’ on his nomination.” But by 2010, when Stevens retired, Aron praised Stevens after he turned left. In an AFJ press release, Aron said that he was a “tremendous force for fairness” on the Court and was “one of the Court’s most vocal and eloquent spokespersons for individual liberties, separation of powers, and equal access to justice.” There was no statement on his subpar qualifications to be found.
AFJ similarly questioned the nomination of David Souter, nominated to the bench by Republican President George H.W. Bush, going as far to say that, “Our conclusion is that Souter’s opinions and legal briefs threaten to undo the advances made by women, minorities, dissenters and other disadvantaged groups” and was highly critical of the terms he used to discuss abortion. AFJ formally opposed Souter’s nomination and said that the Senate should “resist the drumbeat” saying that Souter is a moderate. Of course, Souter’s record on the Court led most observers to agree that he was a liberal justice. And in the end, Aron also praised Souter’s record.
But partisanship has been the name of the game since early on in the project. Susan Liss of AFJ told The Los Angeles Times in 1985 that the organization’s goal is forming a “watchdog unit” for Reagan nominees so “that the judiciary remain an independent third branch of government and not so directly reflect the political views of the President.” In 1987, a New York Times article described the process by which the Judicial Selection Project drew up a memo “supporting the view that the Senate should consider ideology” of judicial nominees. But in 1999, in the San Francisco Chronicle, Aron said that “President Clinton has a duty to fill judicial vacancies and appoint jurists who share his views.”
Compare that to what Aron told The Atlanta Journal Constitution in December 2000, that in the expected battle of president-elect George W. Bush’s judicial nominees, “It will be scorched Earth… We won’t give a lousy inch.”
AFJ issued a statement only 27 minutes after Bush nominated John Roberts and accused Roberts of writing legal policy that would “weaken school desegregation efforts, the reproductive rights of women, environmental protections, church-state separation, and the voting rights of African Americans.” Chief Justice Roberts, who according to AFJ was a right-wing stooge, ended up casting the deciding vote to uphold President Obama’s Affordable Care Act.
AFJ has provided direct research support to Democratic Senate offices. David Brock, founder of Media Matters for America, once noted that “if one compares the Alliance for Justice’s critique of Thomas’s record at the EEOC with [Senator] Metzenbaum’s, the similarities are too striking to be mere coincidence.” In a 2005 profile of Aron, a Washington Post article quoted a staffer of Senator Ted Kennedy telling AFJ “Just keep sending us research.”
AFJ has enjoyed superior access to members of the judiciary committee when Democrats are in power. During the nomination of Brooks Smith to the Third Circuit Court of Appeals, Smith’s supporters were unable to supply their information to media, while AFJ handed out press releases. In the same hearing, it was reported that “a reporter accepting a pro-Smith press statement from a conservative group has her arm literally twisted behind her back by a male [Senator Patrick] Leahy aide who snarls ‘you can’t have that.'”
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AFJ has also been inconsistent in setting standards for professional and judicial experience. Perhaps the best example is the absence of this criticism with the nomination of Elena Kagan. Kagan told the ABA Journal in 2012 that her first appellate argument of any kind did not occur until she was Solicitor General and argued the Citizens United case in its second oral argument hearing before the Supreme Court. Kagan had no experience on the bench, limited appellate experience, and was a member of the Obama administration—which has actually caused her recusal from several cases. And as law professor Paul Campos explained, the entire body of Kagan’s academic work as a professor consisted of three law review articles, two book reviews, and some short essays.
Nonetheless, Aron praised Kagan’s nomination in an AFJ press release, saying that Kagan had “sterling academic and professional qualifications.” Compare this to President George W. Bush’s nomination of Harriett Miers, who was the first nominee tapped to replace the retiring Sandra Day O’Connor. AFJ set out several standards that Miers had to prove, in detail, in order to be considered by the Senate. Among these were judicial experience and independence (questioned because of her close relationship with President Bush as personal lawyer and White House counsel). Aron complained of Miers’s “sparse public record” and said that “Her record is so thin and her views so unknown that it is incumbent upon the senators to ask probing questions.”
In 2010, it did not take long for many to draw the comparisons between Miers and Kagan. Instead, Aron told FOX News that “She couldn’t be farther from Harriet Miers in my view. She has stellar academic and professional qualifications.”
AFJ’s support for use of the filibuster in the judicial confirmation process has waxed and waned over the years. In 2005, Aron consistently called for Senate Democrats “to stand up and say no” despite being in the Senate minority. Today, AFJ slams the “theater of the absurd” of Republicans filibustering or not approving judicial nominees made by President Obama. During the Clinton and Obama administrations, AFJ has argued that there is a “crisis” in the judiciary because of the delays in confirming those appointees.?
