Unleash the Kraken said President Trump’s devoted base! Little did they know that the monster unleashed would be an army of themselves that clearly believes that the judges that President Trump appointed to the federal judiciary have played Judas Iscariot by not overturning election results in states that Joe Biden won in the 2020 presidential election.
Despite certain public wrath hanging over their heads like the sword of Damocles, Third Circuit Court of Appeals judges appointed by President Trump emphatically and unanimously rejected his legal team’s bid to reverse the Pennsylvania election results. They even had the moxy to call his campaign out for the complete lack of evidence supporting their claims: “Charges require specific allegations and then proof. We have neither here.” Those two sentences alone constitute a judicial slap down of epic proportions for such a high stakes case.
Public outrage from Mr. Trump’s supporters has been palpable on social media. It has even made its way to public protests. That’s not surprising.
President Trump made no secret that his biggest accomplishment was reshaping the federal judiciary, and his supporters took a die-hard liking to it. The nominations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett sold the president’s base hope that the federal judiciary would finally become an ally to their causes. After all, they were “Federalist Society approved,” and the intense Democrat opposition to any nominee who was associated with the Federalist Society confirmed the goods that Mr. Trump’s base bought.
In legal parlance though, they and, perhaps President Trump, forgot to read the fine print.
As a member of the Federalist Society since law school, I can tell you that “Federalist Society approved” judges appointed by President Trump are not allies of the Republican Party or conservative causes. They are scholars and theorists who are married to legal principles that would politically range from libertarian to conservative to liberal depending on the area. Thus, their strong marriage to legal principles – the rule of law as everyone likes to say – prohibits sycophantic judicial decisions that favor President Trump, the Republican Party, or conservative causes at every turn. In other words, President Trump’s campaign needed to give them a lot – as any campaign that challenged election results would – to compel a decision to overturn the results of the 2020 presidential election.
Thus, President Trump’s campaign has no one to blame but itself. It promised a big expose of voter fraud that occurred on a national level. It vigorously assured the American people that it would expose enough cheating to swing the Electoral College to President Trump. It protested vigorously that it has so much evidence that the average American would be shocked as to how corrupt the 2020 presidential election was.
I am no election law expert, but I can tell you that the Trump campaign has failed miserably as a legal matter to synthesize whatever evidence that it has into a plausible legal complaint with enough specificity to survive any sort of judicial scrutiny. Every lawsuit from his campaign that I have read has drawn the same reaction from me: speculation.
Anyone can speculate. The law requires more, and judges – even Trump-appointed judges – require more than pure speculation. First year law students learn the standard for writing a lawsuit that can survive early attempts to have it dismissed. That standard requires the allegation of facts that are plausible, not merely possible. President Trump’s campaign did not meet that standard, and the talented judges who he appointed let him know about it.
The primary selling point of President Trump’s judicial picks was that they would follow what the law is, not what they thought the law or the outcome should be. There are no Judas Iscariots in 2020 among President Trump’s judicial picks. His appointees in the Third Circuit delivered on the point that he sold the American people and the commitment that they made under oath to the American people. In other words, President Trump’s judges did not betray him. His campaign failed in its legal strategy, and our constitutional republic is better for having judges who refused to dig in on a partisan line and delivered a decision that upheld the rule of law.