They are both elected and appointed, selected by Democrats and Republicans alike.
Since the November election, they have all ruled in court against Trump or one of his allies seeking to challenge or overturn the presidential vote.
In a remarkable show of near-unanimity across the nation’s judiciary, at least 86 judges — ranging from jurists serving at the lowest levels of state court systems to members of the United States Supreme Court — rejected at least one post-election lawsuit filed by Trump or his supporters, a Washington Post review of court filings found.
The string of losses was punctuated Friday by the brief and blunt order of the Supreme Court, which dismissed an attempt by the state of Texas to thwart the electoral votes of four states that went for President-elect Joe Biden.
Trump and his GOP allies vow to ‘fight on’ after Supreme Court rejects legal challenge to overturn election results
Taken together, the judges’s decisions — some short and to the point and others sweeping defenses of American democracy — have comprehensively dismantled the arguments advanced by Trump in his effort to get the courts to subvert Biden’s victory.
In an era when so many institutions of American life have bowed to partisan tribalism, the dozens of opinions serve as a resounding reaffirmation of the judiciary’s nonpartisan commitment to basic principles of reason, fact and law.
“Voters, not lawyers, choose the President,” declared U.S. Circuit Court Judge Stephanos Bibas, a former prosecutor and law professor appointed in 2017 by Trump, as he rejected an attempt to throw out Pennsylvania’s votes for Biden.
“Federal judges do not appoint the president in this country,” wrote U.S. District Court Judge Pamela Pepper, who was nominated by President Barack Obama. “One wonders why the plaintiffs came to federal court and asked a federal judge to do so.”
Trump’s attempt to block certification of Biden’s win in Georgia “would breed confusion and potentially disenfranchisement that I find has no basis in fact or in law,” wrote U.S. District Court Judge Steven D. Grimberg, whom Trump named to the bench last year.
Before Election Day, federal judges nominated by Trump largely ruled against efforts to loosen voting rules in the 2020 campaign, siding with Republicans seeking to enforce restrictions, a previous Post analysis found.
But conservative jurists are among those who have balked at the sweeping attempts by Trump and his allies to throw out millions of votes after they were cast — rejecting claims of irregularities as unfounded and challenges to the voting process as belated.
The Post found that 38 judges appointed by Republicans dealt blows to such suits, with some writing searing opinions.
The latest example came Saturday, when federal District Judge Brett H. Ludwig, a Trump nominee who took the bench in September, dismissed a lawsuit filed by the president that sought to throw out the election results in Wisconsin, calling the request “extraordinary.”
“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,” he wrote. “This Court has allowed plaintiff the chance to make his case and he has lost on the merits.”
Trump asked for the rule of law to be followed, Ludwig noted, adding: “It has been.”
After appointing more than 200 judges during his administration, including three Supreme Court justices, Trump made clear that he believed the courts would side with his unprecedented attempts to reverse the election results.
“The Supreme Court has a chance to save our Country from the greatest Election abuse in the history of the United States. 78% of the people feel (know!) the Election was RIGGED,” the president tweeted Thursday.
After his latest gambit to get before the high court failed, Trump tweeted Saturday: “This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced. Never even given our day in Court!”
In fact, Trump was given his day in dozens of courts. The refusal of so many judges to rule as he wished speaks to the limits on his ability to shape the judicial branch.
“Judges are in some ways, the last wall,” said Charles Gardner Geyh, a professor at the Maurer School of Law at Indiana University and an expert on the relationship between the judiciary and the rest of the government. “They are the branch of government that can say, ‘this far and no farther.’ ”
He added: “These are the people who are committed to the rule of law — and they’re the only ones who are right now.”
Since the Nov. 3 vote, Trump’s supporters insisted he be given a chance to challenge the results in court.
“The president has a right for every legal challenge to be heard, and he has a right to go to the Supreme Court with it,” House Minority Leader Kevin McCarthy (R-Calif.) said on Thursday. He joined 125 other House Republicans in asking the Supreme Court to consider throwing out the results in four states.
Trump and his GOP allies repeated over and over again that they sought only to ensure that every “legal” vote was counted, while the president made outlandish claims about vote-rigging and fraud that he has asserted accounted for Biden’s more than 81 million votes.
In a blizzard of lawsuits across the country, Trump’s campaign and allied groups argued there were widespread problems with both the administration of the election and ballot security.
As of Friday, more than 50 of their cases had failed or been tossed out of court. Just one minor suit — which shortened the period of time in which Pennsylvania voters could fix errors on certain mail ballots — was successful.
Judges consistently found there was no substantive evidence to support claims of fraud and irregularities — that Biden’s votes were, in fact, legal votes.
Trump’s campaign “did not prove under any standard of proof that illegal votes were cast and counted, or legal votes were not counted at all, due to voter fraud, nor in an amount equal to or greater than” Biden’s margin in Nevada, wrote state District Court Judge James T. Russell, a former lieutenant in the U.S. Army. A fourth-generation Nevadan, Russell’s grandfather was also a judge, assuming the bench after injuring his leg working on the railroad.
In Pennsylvania, Bibas — who sits on a federal circuit court, just below the U.S. Supreme Court — wrote: “Charges of unfairness are serious. But calling an election unfair does not make it so.”
Writing on behalf of two other judges also named to the court by Republican presidents, Bibas, who graduated from Columbia University at 19 before earning his law degree at Yale, added, “Charges require specific allegations and then proof. We have neither here.”
And in Arizona, evaluating similar complaints from conservative attorney Sidney Powell, federal District Court Judge Diane J. Humetewa wrote: “Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court.”
“Plaintiffs have not moved the needle for their fraud theory from conceivable to plausible, which they must do to state a claim under Federal pleading standards,” added Humetewa, a member of the Hopi Tribe who was named Arizona’s U.S. attorney in 2007 by President George W. Bush before being nominated to the federal bench by Obama in 2014.
A handful of judges appeared more open to Trump’s arguments, but such views came in dissents to majority opinions that carried the day.
Unlike politics and the media, courtrooms are run by certain rules, applied over and over in matters small and large.
To file a lawsuit, a person must have standing to sue — to be able to show they have suffered a specific injury that can actually be addressed were they to win their suit. They can ask judges to act only where they have jurisdiction. Federal judges are limited, for instance, in their power to deal with matters overseen by the states, like the rules governing elections.
They must also formally state a claim — that is, show that if they’ve presented all the facts accurately, their suit demonstrates some law has actually been violated. They must rely on precedent, showing that they have asked for the law to be applied in the same way that it has been in the past.
And, finally, if lawyers say a fact is a fact, they must be able to prove it is a fact — with credible, firsthand evidence.
Over and over again, Trump and his allies failed to convince judges that their complaints overcame some of these hurdles. In many cases, they failed to demonstrate that they cleared any of them.
Instead, judges repeatedly found that plaintiffs without standing filed cases that, per past precedent, were lodged too late, sometimes in the wrong courts, asking for disproportionate relief based on unsubstantiated claims.
Witness statements submitted by the campaign, for instance, were “self-serving statements of little or no evidentiary value,” wrote Russell in Nevada. So-called expert testimony “was of little to no value,” and a claim of ballot-stuffing in broad daylight asserted by an anonymous witness with no corroboration he termed “not credible.”
One of the most strongly worded opinions came from Wisconsin state Justice Brian Hagedorn, a onetime president of Northwestern University Law School’s chapter of the conservative Federalist Society, who previously served for more than four years as chief legal counsel to former Wisconsin Gov. Scott Walker (R).
“Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case,” Hagedorn wrote, in declining to hear a case brought by a conservative group that asked the court to overturn the election results. “At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic.”
“Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread,” Hagedorn added.
He was joined by three other justices, including that court’s currently longest-serving member, Justice Ann Walsh Bradley, who taught high school in La Crosse, Wis., before taking up the law, as well as Justice Jill Karofsky, who was elected to the court in April.
The Post review found striking diversity in the political orientation and experience among the judges who ruled against Trump or his allies. Fifty-four were men, 32 were women. They ranged in age from 42 to 82.
In Michigan, U.S. District Court Judge Linda V. Parker — an Obama appointee who formerly served as director of the state’s Department of Civil Rights — wrote that “the right to vote is among the most sacred rights of our democracy and, in turn, uniquely defines us as Americans.”
A suit from a Trump ally trying to throw out the state’s election results was “stunning in its scope and breathtaking in its reach,” she continued.
“If granted, the relief would disenfranchise the votes of the more than 5.5 million Michigan citizens who, with dignity, hope, and a promise of a voice, participated in the 2020 General Election. The Court declines to grant plaintiffs this relief,” she wrote.
In Pennsylvania, U.S. District Court Judge Matthew W. Brann, who served as the chairman of the Bradford County Republican Committee for more than a decade before taking the bench, compared the Trump campaign’s stitched-together legal theories to “Frankenstein’s monster.”
“This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence,” wrote Brann, days after he heard Trump’s attorney Rudolph W. Giuliani personally argue the case.
“In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more,” he concluded.
What the judges have in common, Geyh said, is education and experience that have “acculturated them to take the law seriously.”
Judicial ideology, he said, can make a difference in close cases where legal concepts are in conflict. But in matters as relatively clear-cut as those presented by the election cases, he argued, it is no surprise that jurists have spoken largely with one voice.
“What we saw here were a bunch of overzealous lawyers trying to make the transition from the political realm, where facts and law have ceased to be very important, into the judicial realm, where the norms are still hard and fast,” he said.
The judges made it clear, he said, that they do not wish to be dragged into political battles.
Instead, as Parker wrote in Michigan, the task of selecting political leaders — and especially the president of the United States — should fall to voters, not judges.
“The people,” she wrote, “have spoken.”
Anna Brugmann, Keith Newell, Tobi Raji, Aaron Schaffer and Maya Smith contributed to this report.
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