On Saturday, Donald Trump revealed his post-election strategy to steal the election to a MAGA cult rally in North Carolina. Trump: ‘We’re Counting’ On Federal Courts To Declare Election Night Winner:
Donald Trump said he is “counting on the federal court system” to ensure that the winner of the November presidential election is called just hours after the polls close, despite current rules across the country allowing ballots to be counted several days to weeks after the election.
“Now we’re counting on the federal court system to make it so that we can actually have an evening where we know who wins. Not where the votes are going to be counted a week later or two weeks later,” he said at a rally in North Carolina Saturday.
Since then, Trump has repeated several times that “We need 9 justices. You need that. With the unsolicited millions of ballots that they’re sending … you’re gonna need 9 justices.”
"We need 9 justices. You need that. With the unsolicited millions of ballots that they're sending … you're gonna need 9 justices." — Trump suggests he's counting on SCOTUS to have his back when he makes claims of election fraud following November's election pic.twitter.com/Ju8ShMe8MN
— Aaron Rupar (@atrupar) September 22, 2020
The Associated Press reports that Senate GOP plans vote on Trump’s court pick before election (excerpt):
During a private lunch meeting Tuesday at Senate GOP campaign headquarters, several Republican senators spoke up in favor of voting before the election. None advocated a delay.
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At the private lunch, Sen. Mike Braun of Indiana said, senators advocating swift voting warned of “too many complications” if it’s delayed until after the election — presumably if Biden wins the White House or Republicans lose the Senate.
Conservative groups pushing for swift approval also argue the election result could be disputed with legal battles dragging on for weeks.
This is a curious argument for rushing a lifetime appointment Supreme Court nominee. The current ideological split on the court is five conservatives appointed by Republicans to three liberals appointed by Democrats. Presumably any pre-election legal contest would go in favor of the Republican litigants, as they have thus far.
But what is being projected here by Donald Trump and Senate Republicans is far more nefarious:
- Trump is clearly signaling that he has every intention of challenging any state election results that do not go his way in federal court, following the precedent of Bush v. Gore in 2000. This would likely occur in one or more states.
- Trump is also improperly signaling to the federal judges whom he has recently appointed that they should rule in his favor because he put them on the bench, as a political favor to him (an illegal quid pro quo). This is a clear violation of judicial ethics for which a federal judge can be impeached.
- Trump appears not so confident that these judges in the trial courts and appellate courts will in fact rule in his favor, hence his concern about the U.S. Supreme Court. He anticipates that he will be the losing party filing an appeal to the U.S. Supreme Court, as was George W. Bush.
- Trump is also not so confident that the five conservative justices on the Supreme Court appointed by Republicans will, in fact, rule in his favor. Chief Justice John Roberts and even Trump appointee Justice Neil Gorsuch have shown flashes of independence on the court, choosing to follow the rule of law rather than ideological political dictates. A tie vote of 4-4 in the Supreme Court would mean the lower court ruling which, assuming arguendo went against Donald Trump, would be allowed to stand.
So what Donald Trump and Republican Senators are really saying is that they want a commitment from whomever Trump nominates to the court that they will rule in Trump’s favor in any Bush v. Gore legal challenge to election results, i.e., an illegal quid pro quo. Democrats on the Senate Judiciary Committee need to grill the nominee on this question hard.
Now, the nominee is most likely to respond that “I cannot discuss my private conversations with the president” asserting some privilege, but the response to this evasion is that “If no such improper conversation occurred, you should want to declare unequivocally under oath that it did not occur. I will take your non-responsive answer as an indication that such an improper conversation did in fact occur.”
If Donald Trump expressly conditions his appointment of a judge to the Supreme Court on making this commitment, it is an illegal quid pro quo for which a federal judge can be impeached.
More importantly, this judicial confirmation process is occurring in the middle of voting for president. The results of the election hang in the balance. Donald Trump has already tainted this nominee by publicly stating that he “needs nine justice on the court” for his intended legal challenge to the election results, implying that the fix is in, his nominee will rule in his favor.
If this nominee is confirmed, and Donald Trump somehow succeeds in bringing a legal challenge to the election results before the U.S. Supreme Court, this tainted nominee ethically would have no choice but to recuse herself under the circumstances in order to maintain the appearance of impartiality and fairness of the court. Democrats on the Senate Judiciary Committee need to get the nominee to commit to a recusal in any challenge to election results brought by the Trump campaign.
This would create an interesting dynamic: given how Trump lost his mind over his Attorney General Jeff Sessions properly recusing himself from the Russia investigation, Trump could pull his nominee for making the commitment to recusal, and nominate someone else who will do as he commands.
It would then be clear to all, including Trump supporters, that this entire process is completely corrupted, and that the rule of law no longer exists in America. Republicans will have forced an authoritarian banana republic on the nation in their pursuit of raw power. And for that Republicans should be harshly punished by voters in this election.
UPDATE: Donald Trump made his plans explicit today. Trump Talks Up Need for Full Court as He Casts Doubt on Election:
President Donald Trump predicted that the U.S. Supreme Court will decide the outcome of the November election and argued the Senate should confirm his nominee to replace the late Justice Ruth Bader Ginsburg to break any tie.
“I think this will end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly,” Trump said Wednesday at the White House, after criticizing the legitimacy of mail-in voting. He made the remarks during a meeting with Republican attorneys general[.]
“I think this scam that the Democrats are pulling, it’s a scam, this scam will be before the United States Supreme Court and I think having a 4-4 situation is not a good situation,” Trump said. “Just in case it would be more political than it should be, I think it’s very important to have a ninth judge.”
As for the “advice and consent” role of the Senate – not in a GOP autocracy. Republican Senators are committed to approving a “generic candidate” without examining her record or judicial temperament, even before any confirmation hearing:
Trump said Judiciary Chairman Lindsey Graham wouldn’t have to even hold a committee hearing for his nominee, but that he expects him to.
“He wouldn’t even actually have to hold one,” Trump said. “Lindsey is going to call the date of the hearing as soon — you can’t call it until you have a candidate. And once we have the nominee, I will wait to hear what the date is. But from that point, I would think it would be fairly quick.”
Trump plans on Saturday to announce a nominee to replace Justice Ginsburg. (No one can “replace” Justice Ginsburg, they can ony fill her seat).
A massive Blue Wave is the best defense and offense.
You can’t possibly be under the impression that just because the nominee “ethically would have no choice but to recuse herself under the circumstances in order to maintain the appearance of impartiality and fairness of the court” that this would actually happen. Current conservatives and republicans are only less interested in ethical behavior than they are in appearances and would give neither credence over a chance to overturn an election. Perhaps Chief Justice Roberts could make her recuse herself, perhaps not (I don’t know the rules), should he be inclined to keep up a show of impartiality; in the past justices have said that it is their own prerogative to decide whether to recuse themselves or not. And at this point, I do not trust any republican who says she will do so in her confirmation hearing to actually follow through; none of them can be trusted any more than Bill Barr, McConnell or Graham.
The point is to make this an issue, because it is, and to get the nominee on the record. The long game is impeachment of any judge who engages in a quid pro quo – promising to deliver a desired outcome in a pending case in exchange for their appointment.