The Glory of Trump’s Judges

By Rich Lowry

December 11, 2020

 

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 has reached its height in the weeks since the election. Trump and his allies have 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 has put out a call for “courage” from a justice or justices.

 

Instead, the Trump team has gotten nowhere, even with Trump-nominated jurists.

 

At a fraught time when most Republican elected officials in Washington are keeping their heads down, Trump judges involved in post-election litigation have issued their rulings without fear or favor. They have shown a commitment to facts, reason and the law, and great institutional self-confidence.

 

It’s not clear that Trump knew what he was getting in his judges, or cared too much one way or the other, as long as he was pleasing his political coalition. To borrow from the theologian John Courtney Murray, who maintained that America’s Founding Fathers built better than they knew, Trump appointed better than he knew.

 

Progressives portrayed Trump judges as right-wing hacks. Elizabeth Warren called Trump’s picks “aggressively unqualified,” and the People for the American Way decried “the Trump takeover” of the judiciary with “narrow-minded elitist” judges. The editor of the left-wing 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.

 

At a hearing for a Trump suit in Wisconsin last week, U.S. District Judge Brett Ludwig sounded highly skeptical. Trump nominated him this year.

 

And the Supreme Court on Tuesday 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 senator 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.