Politically Speaking – December 22, 2020
Trump Hoisted With His Own Petard
by Rich Lowry
One of President Donald Trump’s foremost achievements has been to erect a formidable obstacle to his own post- election legal challenges.
The federal judiciary, now seeded throughout with Trump-nominated judges, has given the back of its hand to pro-Trump election litigation, with Trump judges issuing notably harsh opinions.
It’s always been strange that Trump, who will never be mistaken for a rigorous constitutionalist and who personalizes everything, has elevated a couple of hundred judges who, by and large, are deeply committed to the Constitution and feel no particular personal loyalty to him.
Hardly an institutionalist, Trump has buttressed the institution of the judiciary. Not one to honor norms, he’s generally nominated sticklers for them to the bench.
The paradox reached its height in the weeks after the election. Trump and his allies launched a battery of litigation asking for millions of votes to be thrown out or elections to be decertified, hoping to catch a break from a judge somewhere or from the U.S. Supreme Court. Trump himself put out a call for “courage” from a justice or justices.
Instead, the Trump team got nowhere, even with Trump-nominated jurists.
At a fraught time when most Republican elected officials in Washington were keeping their heads down, Trump judges involved in post-election litigation issued their rulings without fear or favor. They have shown a commitment to facts, reason and the law, and great institutional self confidence.
Progressives portrayed Trump judges as right-wing hacks. Elizabeth Warren called Trump’s picks “aggressively unqualified,” while the editor of the leftwing website Talking Points Memo, Josh Marshall, tweeted: “The federal judiciary is corrupt. The Supreme Court is the most deeply corrupted.”
With the president of the United States raging at our electoral system and desperately seeking assistance from the courts, the alleged partisanship and corruption of the Trump influenced judiciary has been nowhere in evidence.
Trump nominated University of Pennsylvania law professor Stephanos Bibas to the 3rd U.S. Circuit Court of Appeals in 2017. The signature Trump litigation in Pennsylvania landed in his lap, and Bibas wrote an unsparing opinion for a unanimous panel of the 3rd Circuit dismissing it.
In Georgia, U.S. District judge Steven D. Grimberg, nominated by Trump last year, denied a request by Trump super fan Lin Wood to stop the certification of the results.
And the Supreme Court denied a request to block certification of the Pennsylvania results in a curt, one-sentence order with no public dissents.
One of the main Democratic lines of attack on Justice Amy Coney Barrett during her confirmation was that, as Illinois Sen. Dick Durbin said, she was “being sent on assignment to the Supreme Court by President Trump” in order to “be there if the president needs her on an election contest.”
Where does Barrett go to get her apology?
Surely, the overtly transactional Trump would have been happy for her to have actually been his political tool on the court, along with his other two picks. But Barrett and her colleagues, trained and soaked in the law and profoundly cognizant of their institutional role, are not susceptible to such influence. Neil Gorsuch is not Corey Lewandowski; Stephanos Bibas is not Rudy Giuliani.
Nothing underlines the merits of Trump judicial selections quite like their willingness to deny him and his allies, as warranted.
Rich Lowry is editor of the National Review. © 2020 King Features Synd., Inc.
Editors Note: After reading Rich’s column this week I find the question, “Where does Supreme Court Justice Amy Barrett go to get her apology from Durbin?” I would say don’t hold your breath. Recently I had a dear friend share a letter with me asking a fair question of Durbin. He never did get a response! Imagine that. The letter is below.
Dear Senator Durbin,
With so many Americans unemployed during this pandemic, why is it that our elected representatives in Congress and the Senate, as well as State Governors and City Mayors continue to receive full salaries and benefits? These people, our elected officials, made the decision to close down our economy and the jobs of millions of Americans. Why are they not held to the same standards as we the people? Why don’t they willingly forego their salaries until we defeat this assault on our nation? Maybe if they were in the same boat with the rest of us, they might be more inclined to work together developing and implementing solutions to our problems instead of continuing to have these schoolyard arguments and get nothing done?
So with all that said, in my opinion, shouldn’t we all be in the same boat? Make the rules; live by them.
Until next week, let me wish you and yours a very Merry Christmas. May God bless and keep you all, from myself and the team.