On Monday, the last judicial shoe fell on Donald Trump’s efforts to overturn the 2020 presidential election, when the U.S. Supreme Court rejected his third and final challenge to the higher court. With the transition of the United States to the presidency of Biden, the court’s decision exemplifies why the judiciary is our nation’s strongest bulwark against authoritarianism. In fact, during the greatest threat to our democracy in modern history, the American judicial system was our last line of defense, proving, as Andrew Jackson once wrote, “All rights guaranteed to citizens by the Constitution are worthless … except guaranteed to them by an independent and virtuous judiciary. “
When Donald Trump stepped down in January as president of a term, he had a major impact on the American judicial system. In four years, Trump has appointed 226 judges to the federal bench, including 54 to the appellate court. This last number is just one judge less than Barack Obama pointed to that court in his eight years as president. Of the country’s 13 federal appellate courts, Trump managed to change three of the liberal majorities to conservative ones. His three Supreme Court justices, in turn, were the most nominated for a single term since Richard Nixon. In fact, Trump’s mark on the American judiciary will be long and deep.
‘Trump’s judges’ disappointed him. Now he’s in really deep shit.
That is why it was so significant that Trump’s false and execrable claim that the election was “stolen” from him – the “Big Lie”, as many have called it – was unequivocally, even contemptuously, repudiated by the courts. In doing so, the American judiciary saved our democracy. This may sound hyperbolic, but at a time so politically volatile that members of the American right conspired to kidnap a governor, invaded the United States Capitol and believed that the Democratic Party was being led by Satan-worshiping cannibals, the judiciary proved to be our only institution immune to the virulent hyperpartisanship that infects this country. He managed to maintain, albeit narrowly, the legitimacy of both political parties.
But here’s what’s really interesting: it was because, notwithstanding Trump’s influence in the judiciary, that the peaceful transfer of power was guaranteed. Seems crazy? Imagine if courts, like Congress and the media, split on party lines – with Democratic nominees ruling against Trump’s electoral challenges and Republican nominees ruling in favor. Imagine that no Trump nominee had heard the cases. The right, already inflamed with conspiracy theories, would have considered the whole process a farce. Worse, a party division would have instilled an even deeper feeling among all Americans that the country did not have an objective arbiter – that the truth was just what our respective political leaders believed it to be.
A mass uprising, at the very least, or a coup by Trump, at worst, would have been the result. The Capitol riot on January 6 was the match ready to ignite the conflagration.
We were spared these results only because of the bipartisan nature of court decisions and because Trump-appointed judges heard key cases: in more than 60 post-election cases, a total of 86 judges – including 38 Republican nominees and eight chosen by Trump himself – Rejected electoral challenges. Even the Supreme Court, with a third of the judges appointed by Trump, ruled against him. Not a single Trump nominee in any court voted to support his allegations of fraud.
This clear repudiation had powerful effects. This forced several of Trump’s most important supporters to finally admit that the election had not, in fact, been stolen. Senate majority leader Mitch McConnell for weeks refused to acknowledge Biden’s victory. He referred to him as “president-elect” only after state voters officially voted, after the Supreme Court’s refusal to hear Trump’s challenge. Even William Barr, the chief sycophant of Trump’s Justice Department, finally admitted in early December, after electoral disputes were dismissed en masse, that there was no evidence of widespread fraud. Inversions like these further delegitimize the “Stop theft” movement and poured cold water on pro-Trump groups ready to act on their incendiary claims. (According to the FBI, right-wing militias have planned armed protests in all 50 state capitals. They never materialized.)
Although many Trump supporters still believe he won the election – according to a January poll, more than 70 percent of Republicans believed that Trump received more votes than Biden – when faced with the fact that even the judges appointed by Trump rejected the allegations of fraud, his accusations of a Democratic conspiracy has become much more difficult to sell. Two unconvincing explanations reached my news feed: one was that the courts were “mired in the Deep State”; the other was that the judges were “paid”. This is ridiculous, of course. The Trump-appointed judges could hardly have been more blunt or meticulous in their rebukes.
“An incumbent president who did not prevail in his candidacy for reelection asked for help from the federal court to overturn the popular vote,” wrote Brett H. Ludwig, a district court judge appointed by Trump in Wisconsin. Ludwig called Trump’s election contest “bizarre” and added: “This court gave the plaintiff a chance to present his case, and he lost on the merits.” Steven Grimberg, Trump-appointed district court judge in Georgia, wrote: “Stopping certification literally at 11 am would create confusion and potentially disenfranchisement that I think has no basis in fact or law.”
Statements like these helped to preserve our democracy because virtually every other American institution that could have prevented Trump’s possible takeover has been co-opted by Trump or denigrated to the point of almost impotence. The media was “false news” propagated by Democrats. Intelligence agencies were led by “Obama remnants” and supplied with members of the “Deep State” who hate Trump. Most Republican congressmen, however, have publicly supported the false allegations of fraud. It was not yet clear how the military would react to a takeover, as Trump had filled key leadership positions with cronies. (Congressional hearings on the January 6 riot revealed that it took the Pentagon more than three hours to approve Capitol Police Chief Steven Sund’s request for help from the DC National Guard. Senior Army leadership, including the brother of former Trump national security adviser Michael Flynn rejected the request, Sund testified.)
On February 13, the United States Senate had an opportunity to fulfill its role of overseeing executive misconduct. Days before, the House of Representatives had sent its second articles of impeachment against President Trump to the upper house. This second historic impeachment accused Trump of “inciting insurrection” for the Capitol riot. House managers argued that Trump had “encouraged and cultivated violence” to overturn a free and fair presidential election. Congresswoman Liz Cheney called Trump’s actions “the biggest betrayal of the presidential oath in the history of the United States.” The Senate voted 57-43 to condemn, but that was 10 votes less than the absolute two-thirds majority needed to do so.
The vote was by no means an exoneration – seven Republicans and two independents joined the majority, making it the largest bipartisan vote to condemn in the history of the United States – but a conviction would have been an unambiguous deterrent for future presidents who would manage these autocratic tactics. In addition, the acquittal, such as the one that followed Trump’s first impeachment, encouraged him. On February 17, after weeks of silence, the ex-president returned to the media to publicize the same false claims that more than 60 lawsuits had already been eliminated. In an interview with Newsmax, Trump repeated his fallacious refrain: “It was a stolen, fixed and rigged election.”
But, fortunately, in this case, the president was not the decision maker. The courts were. And, unlike the electorate, the judges were unified in their opinions. As Judge Stephanos Bibas of the Third Circuit wrote in response to a challenge from the president who appointed him: “The accusations of injustice are serious. But to call an election unfair does not mean it is. The charges require specific allegations and then evidence. We don’t have any here. “
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