Sunday, December 13, 2020

Trump Was Defeated by the Constitutionalism of Trump's Judges

"There is an extraordinary case."

That is how U.S. District Judge Brett Ludwig began and ended his decision in the case of Donald Trump v. The Wisconsin Elections Commission, et al. in the U.S. District Court for the Eastern District of Wisconsin.  At a hearing for the Trump suit last week, Judge Ludwig used the word "bizarre":  "the request to remand this case to the Legislature almost strikes me as bizarre."

Yesterday, Judge Ludwig ordered Trump's complaint to be "dismissed with prejudice," adding to Trump's long list of losing lawsuits.  What is remarkable about many of these cases is how often the judges ruling against Trump were appointed by Trump.  Judge Ludwig was confirmed by the Senate (in a 91-5 vote) only three months ago--on September 9.  I have written about the lawsuit in Pennsylvania and the opinion written by Judge Stephanos Bibas for the U.S. Court of Appeals for the Third Circuit.  Bibas was one of Trump's first judicial appointments, and yet he ruled against Trump in this case, using strong language in dismissing the suit as without merit.  Similarly, the refusal of the U.S. Supreme Court to take up a Trump lawsuit sent to them by the Attorney General of Texas was supported by all three of Trump's appointees--Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.  

Senator Dick Durbin of Illinois attacked Barrett during her confirmation because 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."  If that was Trump's expectation, he failed because Barrett and the other judges he has appointed do not regard themselves as "his" judges who must serve his interests.

Without understanding fully what he was doing, Trump has picked his judges from lists given to him by The Federalist Society.  This is a group of conservative lawyers who want federal judges to be constitutionalists who will follow the original meaning of the law and thus enforce the rule of law without partisan political bias.  Trump did not understand that this meant that they would exercise impartial legal judgment without the personal loyalty to him that he demands from everyone he appoints.

When Senator Ron Johnson of Wisconsin supported the confirmation of Judge Ludwig, he said: "Judges, like Judge Ludwig, who are committed to applying the law as written and not acting like superlegislators from the bench are critical in upholding our system of checks and balances."  And, indeed, Ludwig has shown that he is willing to check the demands of the president who appointed him and thus vindicate the constitutional principle of separation of powers.

In 2016, Trump won Wisconsin by a narrow margin of about 22,700 votes.  This year, Biden won the state by a similarly slim margin of over 20,600 votes.  Trump's lawsuit in Wisconsin was based on the claim that this election was unconstitutional because it violated the clause in the Constitution declaring that "Each State shall appoint, in such Manner as the Legislature thereof may direct" the presidential electors for that state (Article II, section 1).  Trump's complaint quotes language in Chief Justice Rehnquist's concurring opinion in Bush v. Gore (2000) stating that "a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question."  

The argument is that the Wisconsin Elections Commission (WEC) did depart from the election laws enacted by the Wisconsin legislature.  The WEC did this in three ways.  It directed election clerks to "do all that they can reasonably do to obtain any missing part of the witness address" on an absentee ballot.  It allowed for a broad interpretation of what counted as "indefinitely confined status" in the COVID-19 pandemic for voters requesting absentee ballots.  And it allowed setting up many absentee ballot drop boxes.  These rules allowed for a huge increase in the number of mail-in ballots, and one can assume that many of those ballots were votes for Biden, which accounted for Trump's narrow loss in Wisconsin.  Trump's complaint asked that Judge Ludwig throw out the voting results and then ask the Republican-controlled Wisconsin Legislature to appoint their own slate of presidential electors.

These same arguments were made by Texas Attorney General Ken Paxton in his lawsuit filed with the U.S. Supreme Court.  Although the Court refused to rule on the case because they decided that Texas had no constitutional standing to sue, we can imagine that if they had ruled, they might have agreed with Judge Ludwig.  Moreover, in both cases, Trump's lawyers did not provide any evidence that anyone committed voter fraud.  Amazingly, John C. Eastman, a lawyer affiliated with the Claremont Institute, who wrote Trump's Bill of Complaint in Intervention for the Texas lawsuit, wrote: "It is not necessary for the Plaintiff in Intervention to prove that fraud occurred" (p. 13).

Judge Ludwig decided that Trump's lawyers had not shown a "significant departure" by WEC from the rules set down by the Legislature, because the WEC was explicitly given a broad discretion in clarifying the statutory rules for conducting the election.  

Ludwig declared: "Plaintiff's Electors Clause claims fail as a matter of law and fact."  He concluded:

"This is an extraordinary case.  A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred.  This Court has allowed plaintiff the chance to make his case, and he has lost on the merits.  In his reply brief, plaintiff 'asks that the Rule of Law be followed.'  It has been."

Thus, Trump was defeated because his own judges are devoted to the constitutional rule of law. 


A few hours after I originally wrote this post, the Wisconsin Supreme Court ruled against a Trump lawsuit making almost exactly the same arguments made in the case before Judge Ludwig.  This was a 4-3 decision in which Judge Brian Hagedorn cast the deciding vote and wrote the opinion for the majority.  

This is remarkable because Hagedorn was elected to the Supreme Court in 2019 for a 10-year term in a fiercely partisan election, in which Hagedorn was supported by conservative Republicans.  Hagedorn had been chief legal counsel for Republican Governor Scott Walker.  He is a member of the Federalist Society.  In 2016, he founded a private school that forbids same-sex relationships among its employees and students.  So when he won election to the Court by a narrow margin, many people assumed that his decisions would favor the partisan political positions of conservative Republicans.  Since he is one of the 4 justices on the Court identified as conservative Republicans, the Trump lawyers thought this was their last best hope to finally win a court decision to overturn the election of Joe Biden.

Contrary to this expectation, Judge Hagedorn voted with the 3 justices identified as liberal Democrats.  The other three 3 justices identified as Republicans wrote scathing dissenting opinions with personal attacks on Judge Hagedorn.  Many Republicans in Wisconsin and across the country have denounced him as a traitor.  Some have said that he should be tried before a military tribunal once Trump declares martial law.

The New York Times has just published an interview with Judge Hagedorn.  He was asked: "What is your response to Wisconsinites who supported you when you ran for the court and now are deeply unhappy with some of the decisions you've made?"  He answered:

"When I ran, I was pretty consistent that I believe deeply that law and politics are not the same thing.  Most of us probably have some hope that our preferred candidate or our preferred policies, that the law runs in the same direction, but that isn't always the case.  And I said I was going to be a textualist and an originalist.  I believe very deeply in those things."

"And I think my decisions have reflected that.  And I made clear even when I was running that I would make decisions that I'm sure some folks, certainly conservatives, may not like from a policy outcome and that when I do, I was just following the law.  People should know that."

When he was asked whether he had voted for President Trump, he refused to answer.  "Why not?" was the next question.  He answered:

"Number 1, who I voted for didn't impact my decision and wouldn't impact my decision.  Number 2,  I don't think it's appropriate for judges to take positions on partisan candidates for office.  We also have canons of judicial ethics on not endorsing candidates.  We're a nonpartisan court.  I mean, I certainly was elected with the support of many conservatives, but I am not a Republican justice on the court."

What is most impressive about this is how it confirms the constitutional principle of separation of powers, in which judges should exercise impartial legal judgment without partisan political bias, even when judges have been elected by voters in a partisan contest to a limited judicial term. 

"I am not a Republican justice on the court."  Judges like Justice Hagedorn show that it is possible to adhere to a genuine jurisprudence of textualism and originalism, and that this conservative jurisprudence is not an insincere profession hiding a partisan political agenda.  And yet the vehement Republican denunciation of judges like Justice Hagedorn also shows the moral corruption of Republican Trumpism, which dishonestly professes a conservative jurisprudence of law separated from politics while demanding that judges manifest political loyalty to Trump.


Trump's record of failure in the courts continues.  On Christmas Eve, a three-judge panel of the Chicago-based U.S. Seventh Circuit Court of Appeals unanimously dismissed the arguments of Trump's lawyers appealing the decision against them in the Wisconsin case.  Once again, their claim that the Wisconsin Election Commission violated the Constitution was rejected.  These judges were all Republican appointees, and the author of the opinion--Judge Michael Scudder--was appointed by Trump.


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