Take it from the 'Trump' judges: There was no election fraud
1/5/21 Jenna Greene's Legal Action 23:57:03
Copyright (c) 2021 Thomson Reuters
Jenna Greene
Jenna Greene's Legal Action
January 5, 2021
(Reuters) - When Supreme Court Chief Justice John Roberts in 2018 proclaimed, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," I was among those who rolled their eyes. Oh sure, Pollyanna.
Except maybe Roberts was right after all.
As President Donald Trump and his allies still (!) refuse to concede defeat in the 2020 election, it's worth taking a moment to note the "Trump" judges who have declined to side with the man who appointed them. Instead, they've acted (as Roberts once put it) as neutral umpires, "to call balls and strikes and not to pitch or bat."
That Trump and his lawyers have struck out again and again in court — their record is 1-62 in post-election lawsuits, according to Democratic National Committee lawyer Marc Elias of Perkins Coie — is testament to the strength of the rule of law and the integrity of these judges.
Since 2016, Trump has appointed 53 judges to the federal appeals courts and about 25% of all trial-level federal judges, as my Reuters colleague Jan Wolfe previously reported. But it hasn't helped the president win any election challenges.
Consider U.S. District Judge Jeremy Kernodle of the Eastern District of Texas. A former Haynes and Boone partner who chaired the firm's False Claims Act practice, Kernodle was appointed to the bench by Trump in 2018.
The president, who speaks of "my" judges, appears to be of the "You-dance-with-the-one-that-brought-you" school of political patronage. But judicial fealty — thank goodness — still doesn't work that way.
On Jan. 1, Kernodle rejected a bid led by Texas Republican Rep. Louis Gohmert challenging the constitutionality of the Electoral Count Act of 1887. Gohmert wanted Kernodle to find that Vice President Mike Pence was authorized to pick pro-Trump electors on Jan. 6.
In a restrained but unambiguous opinion, Kernodle found that Gohmert lacked standing to sue.
The plaintiffs fared no better before the 5th U.S. Circuit Court of Appeals, where a three-judge panel that heard the appeal included Andrew Oldham.
Oldham has major conservative bona fides. Before ascending to the bench, he served as general counsel to Texas Governor Greg Abbott and clerked for U.S. Supreme Court Justice Samuel Alito.
Nonetheless, he agreed to a terse order rejecting Gohmert's emergency motion for expedited appeal. The panel on Jan. 2 echoed Kernodle's ruling that "no plaintiff has the standing demanded by Article III. We need say no more, and we affirm the judgment essentially for the reasons stated by the district court."
Lofty rhetoric it was not. But it got the job done.
One of the sharpest anti-Trump rulings was penned by U.S. 3rd Circuit Court of Appeals Judge Stephanos Bibas, who was a Penn Law professor before Trump tapped him for the bench in 2017.
"Charges of unfairness are serious," Bibas wrote on Nov. 27 in a unanimous opinion rejecting a bid by the Trump campaign to decertify Pennsylvania's election results. "But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
Maybe it shouldn't be a surprise that Bibas didn't pull his punches.
"My boss is not my appointing president, my boss is the Constitution and the laws," he said at a panel at William & Mary Law School in 2019, according to the Wall Street Journal.
One of the president's newest judicial picks is U.S. District Judge Brett Ludwig of the Eastern District of Wisconsin. A former commercial litigation partner at Foley & Lardner, Ludwig became a bankruptcy judge in 2017 before receiving his U.S. District Court commission on Sept. 10, 2020.
Less than three months later, a suit by the president seeking to set aside the results of Wisconsin's popular vote landed in his lap.
Ludwig dismissed the complaint with prejudice on Dec. 12.
"This Court has allowed plaintiff the chance to make his case and he has lost on the merits," Ludwig wrote.
Trump supporters also struck out on Dec. 4 before the 11th Circuit in Atlanta, when Judge Andrew Brasher penned a unanimous decision dismissing their appeal for lack of jurisdiction.
Brasher was the solicitor general of Alabama until Trump tapped him for the U.S. District Court for the Middle District of Alabama. He was confirmed in 2019 and spent less than a year on the job before Trump elevated him to a seat on the 11th Circuit last year.
It was a double endorsement from the president — but it didn't persuade Brasher to disturb a lower a court ruling regarding Georgia's voting machines. The law, he wrote, "requires that we dismiss the appeal and return the case to the district court for further proceedings."
In November, another Trump appointee in Georgia, U.S. District Judge Steven Grimberg, rejected another bid to block certification of Biden's win in the state.
Grimberg, a former prosecutor who most recently served as general counsel for the Americas for Nardello & Co, ruled that blocking certification "would breed confusion and potentially disenfranchisement that I find has no basis in fact or in law."
Indeed, that's proven to be the touchstone for all the judges: Is there a basis in fact or in law to support the president's claims of election fraud?
That every one of the so-called Trump judges has said no should send a powerful message to those who continue to dispute the legitimacy of the election.
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