The Trump team is "waiting for the United States Supreme Court, of which the president has nominated three justices, to step in and do something" to overturn President-elect Joe Biden's victory, Trump campaign legal adviser Harmeet Dhillon said in a Fox Business interview the day after the election. "And," she added, "hopefully Amy Coney Barrett will come through and pick it up."
Dhillon was undoubtedly voicing the hopes of many of President Trump's most ardent supporters and the fears of some of his critics. A month later, both views increasingly look naïve.
This is very good news. The way Trump's election challenges have played out so far, both at the Supreme Court and in lower levels of the judiciary, speaks well of judicial independence. This fiasco has demonstrated that among the many worries we might have for the future of American governance, beholden federal judges stealing elections for the president who nominated them should rank low on the list.
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The first SCOTUS decision about the election in which Barrett participated came down Tuesday. It was a unanimous slapdown of a request to block Pennsylvania from certifying Biden's win. The 9-0 choice to refuse the plea reportedly took only 34 minutes — this call wasn't remotely controversial. That case isn't 100 percent dead yet, but it seems destined for failure, and the other major election case looking for a SCOTUS hearing is considered an even longer longshot.
What about in the lower courts? Here too we can find many examples of GOP- and even Trump-appointed judges declining to assist in Trump's election challenge, which has now lost a whopping 50(!) lawsuits. The challenge is losing even though the campaign and its allies are actively jurisdiction shopping, desperately trying to find judges who will take their side regardless of a lacking factual and legal case.
Here are a few of those examples: An Eleventh Circuit Court panel, including two judges who have appeared on Trump administration shortlists to fill Supreme Court vacancies, unanimously rejected an appeal to stop Georgia from certifying its election results. Another panel from the same court unanimously denied a request in the "Kraken" lawsuit, issuing a rejection written by a Trump-appointed judge. A unanimous Third Circuit panel ruled against Trump in a case concerning Pennsylvania, again with an opinion written by a Trump appointee and joined by two other Republican appointees. "Charges of unfairness are serious," that decision observed. "But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
Again and again and again, as Politico summarizes, "state and federal judges ... continue to express shock at the Trump team's effort to simply scrap the results of an election he lost," and some "of the most devastating opinions ... have come from conservative judges and, in some federal cases, Trump appointees."
This is a very welcome expression of judicial independence. It's not quite true, as Supreme Court Chief Justice John Roberts said in an unusual rebuke of Trump in 2018, that we don't "have Obama judges or Trump judges, Bush judges or Clinton judges." Differences of judicial philosophy are real and important, if not as predictable as Republican presidents in particular have hoped. But it is not the case that appointing a judge gains for a president a lifelong ally, the reality of the law be damned.
That the appointments are lifelong is undoubtedly part of this. Cases for limiting SCOTUS positions to 18 years have become commonplace, and I find them fairly persuasive. But appointing judges for life has advantages, too. It is a real factor in the judiciary's comparative insulation from the whirling winds of politics and spiking negative partisanship. A permanent appointment encourages judges to take a long and stability-focused view on their role in the legal system.
"One perhaps-not-terrible heuristic," FiveThirtyEight's Nate Silver suggested, "is to think of the current SCOTUS as being ... Mitt Romney. It's certainly quite conservative and doesn't remotely endorse the liberal worldview. But it's not particularly partisan or Trumpist, and it cares about its institutional legacy." The comparison further works, Silver added, because Romney's Utah Senate seat is so safely his as to come as close to a lifetime appointment as the legislative branch offers.
There are other factors here, too. A Trump-specific one is that any judge he appoints undoubtedly realizes their position is owed more to the GOP functionaries and members of the Federalist Society than to Trump himself. It is impossible to imagine Trump meaningfully contributing to judicial appointments unless they involve people he knows personally and/or the Supreme Court — his ignorance of this sort of thing is part of his self-marketing as a political outsider. Another factor is that even those federal judges we might find unacceptable for whatever reason are still lawyers. They still got through law school and passed the bar and got confirmed by the Senate. No doubt exceptions may be found, but this is not a career path that lends itself to sacrificing all professional credibility for the sake of Donald Trump.
And all that, again, is a good thing. Our judicial system has problems aplenty, but it has not devolved into a subsidiary of the executive branch. Trump clearly expected it would. As in many basics of American civics, he was wrong.
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