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The day after Thanksgiving, the Third Circuit Court of Appeals pulled yet another rug out from under Donald Trump’s serial attempts to overturn the 2020 presidential election results. Judge Stephanos Bibas rejected the claims made in the campaign’s brief as specious and excoriated ongoing attempts to exclude legitimate votes from Pennsylvania’s final tallies. “Voters, not lawyers, choose the president,” Bibas lectured Trump’s attorneys from the bench. A second Pennsylvania judge, Matthew Brann, has dismissed another lawsuit, with prejudice.
These are only two decisions handed down by judges during the most brazen attempt to steal an American election since the foiled Confederate plot to assassinate Abraham Lincoln before his 1861 inauguration. Across the country, courts repeatedly upheld the law in the weeks before and since the election. Out of the 53 cases filed by the Trump campaign, as of today, 19 have been dismissed or denied outright, 8 have been dropped, 14 are limping, and only 3 have resulted in rulings that support minor claims about voting irregularities.
That’s an astonishingly bad statistic, even for Trump, who lives for flurries of frivolous legal filings that rarely succeed but often force people to settle to avoid paying their attorneys more than the suit itself is worth. In politics, it also has a downside: one of the major donors in Citizens United now believes that the campaign’s legal team was never serious about winning the election in court, and he is suing to get his $2.5 million back.
But what interests me more as this odd political interregnum before Joe Biden’s inauguration plays out is that there still seems to be a small, but significant, part of the Republican Party that has not yet sold its soul to Trump. I am not talking about The Lincoln Project or my colleagues at The Bulwark, who should be well known to you, but about people outside the Beltway who have, up to now, been concealed by the populist glitz of Trumpism. Many of the judges who have ruled against the Trump campaign are Republicans. They are members of the Federalist Society, and, in some cases, were elevated to their current positions by Donald Trump himself. Bibas, an Anthony Kennedy clerk, was nominated to the federal bench in 2017, while Brann is a Republican Federalist Society and National Rifle Association member nominated by Barack Obama as part of a 2012 bipartisan deal that also put a liberal in the bench. Other judges who rejected Trump lawsuits include George W. Bush appointees Paul S. Diamond and Timothy J. Savage of Pennsylvania; and Texan Andrew Hanen of the Southern District.
And it isn’t just the judges. Mark Brnovich, the Republican Attorney General of Arizona, defended his state against two versions of the conspiratorial “Sharpie” lawsuit, in which Trump voters were allegedly given Sharpies at the polls so that the ink would invalidate their ballots (all voters were given Sharpies, and no ballots were invalidated because of them.) Another notable barrier to Trump’s charade was Brian Kemp, whose path to becoming governor of Georgia in 2018 was itself made a little wider because of his power, as Secretary of State, to purge potential Stacey Abrams supporters from the voter rolls.
Then there were Republicans who you would never otherwise hear about who refused to lie or break the law: clerks, country supervisors, state legislators, sheriffs, and secretaries of state. The vice-chair of the Michigan state board of canvassers, Republican Aaron Van Langeveld, defied his national and state party chairs, and Donald Trump himself, to certify the election. When I emailed Michigan civil rights scholar Samuel Bagenstos to ask what put the broomstick in Langeveld’s spine when the other Republican on the board abstained, Bagenstos told me it was impossible to know. But, he reflected, “I think [Langeveld] just couldn’t look himself in the mirror and think he’d done his legal duty if he refused to certify the results,” Bagenstos wrote. “That’s corny, perhaps, but I think it’s true. The law was too clear; the margin of victory was too great. He’s a young guy and, as far as I can tell, ambitious. As far as I can tell, he’s conservative, so any future he has is on the Republican side. I don’t think he did this for careerist reasons. I think he did it because he thought he had to.”
Trump’s dominance of the party was, as it turned out, never complete. As Massachusetts governor Charlie Baker, Ohio’s Mike DeWine, and Maryland Governor Larry Hogan have demonstrated throughout the Covid-19 crisis, it has always been possible to be a Republican and not become complicit in the conspiracy theories, cruelty, and denialism spewing from the White House. Over time, we may learn that there were more real allies than any Democrat knew. And as we move forward to repair our badly bruised democracy, we need to learn from a moment in which our Republic was saved by Democrats and Republicans, working together.
What are the lessons?
One is that federalism has too often been defined through reactionary “states rights” agendas. Although federalism has often stood in the way of national progress on civil and human rights, it is also clearly a check on the forms of tyranny that Trumpism embodied. Most importantly, it permits useful dissent within a national party. It is notable, for example, that Republican politicians who are in greatest proximity to Trump, and whose national fortunes benefit most immediately from their association with his cult of personality — Senators Mitch McConnell, Lindsey Graham, Ted Cruz, and Marco Rubio; RNC chair Ronna McDaniel; Representative Jim Jordan — continue to support the “stolen election” conspiracy theory. But Republican officials who did the work of the election at the local and state level insisted on the truth, often at the cost of devastating harassment.
The lesson that follows from this is that conservatives do not operate in lockstep with each other, never have, and that the toadying to Trump we have seen in the national GOP has not become uniform in the judiciary or in the state parties. The appointment of judges should not be understood as a form of feudalism, in which partisan appointments automatically produce partisan rulings that benefit the fortunes of the politicians who have sponsored the nominee.
This was the context for the bitter Amy Coney Barrett Supreme Court nomination: both sides believed that she would be the critical vote to deliver Trump’s election should it reach the Supreme Court. Barrett could be envisioned putting a stake through the heart of Roe v. Wade, Obergefell v. Hodges, Brown v. Board of Education, and other legal precedents. No doubt, she will be the deciding vote on many critical cases before the Court that promote longstanding conservative agendas. She has already played a deciding role in a First Amendment decision last week that prohibits New York State from restricting attendance at religious services as a public health measure.
But as it turns out, judges care about reputation. It’s hard to believe that Barrett has committed her carefully crafted career to a crude, utilitarian GOP power-grab, whatever her virtues or flaws.
I have always been skeptical that Barrett, if put on the spot, would simply hand the election to Trump regardless of the substance of the case, as both Democrats and Republicans have asserted. This was always the hope or fear, but it was never a fact. And it is without merit since although almost a quarter of active federal judges have been appointed since Trump was inaugurated four years ago, they too have failed to support most elements of Trump’s nationalist-populist agenda.
This support might have made a difference between four years that have been hard to live through and the more thorough transformation of American society that Trump supporters envisioned in 2016. These disappointed activists now promote the spurious narrative that no one — the media, feminists, progressives — gave their guy “a chance” to lead. But in reality, Trump didn’t have the stomach for legislation. Out of ten legislative initiatives that the president pledged to pass in his first 100 days, only a portion of one was enacted. And much of what Trump tried to do by executive order was invalidated or turned back, not by Congress, but by the courts, because it was illegal. Over 60 lawsuits against administration policies have been upheld, possibly more than in any prior administration.
Throwing legal spaghetti at the bench to see what Republican judge it would stick to was always Trump’s plan to win an election that he knew he would otherwise lose. As ProPublica’s Ian MacDougall noted on November 13, 2020, the campaign’s only strategy has been to troll the federal courts in search of judges who will accept their lies, and as it turns out, judges don’t do that. “This Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by the evidence,” Mathew Brann noted in an unusually hostile response to one Pennsylvania lawsuit, characterizing the filing as a “Frankenstein’s Monster” cobbled together from unrelated precedents.
I don’t mean to elevate Republican efforts to block Trump’s coup over those of the hard-working progressives, feminists, and communities of color who began organizing for the 2020 election on November 9, 2016. Numerous Democrats and grassroots organizations have been involved in the fight to establish the will of the people over the President’s will, and Biden’s victory stands on the shoulders of these accomplishments. That is a well-documented story, at least on my side of the political divide.
But we shouldn’t forget about or ignore them either. The fact that so many Republicans defended the legitimate outcome of the election and that their support has been decisive at critical junctures is important. Democrats should praise it. It should give all of us who care about good government faith that our nation is not hopelessly politically divided after all.
And most important? It’s an opportunity to build the democracy we, the people, deserve.
This article originally appeared at Political Junkie.
Claire Potter (@TenuredRadical) is co-executive editor of Public Seminar, Professor of History at The New School for Social Research, and author of Political Junkies: From Talk Radio to Twitter, How Alternative Media Hooked us on Politics and Broke Our Democracy (Basic Books, 2020).