The Volokh Conspiracy

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Chief Justice Roberts Was Right About One Thing: There are no "Trump Judges"

Trump-appointed Judges consistently rule against President Trump in election cases.


In 2018, Chief Justice Robert declared, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges." In election case after case, Trump appointees have proved the Chief was right about something.

Today, a unanimous Eleventh Circuit panel turned away L. Lin Wood's emergency appeal to enjoin certification of the Georgia election results. Chief Judge Bill Pryor wrote the majority opinion, joined by Judges Jill Pryor and Barbara Lagoa. Yes, the same Judge Lagoa who was on the super shortlist for the RBG seat. And you may recall that Pryor was on the super shortlist for Justice Scalia's seat.

Yesterday, another unanimous Eleventh Circuit panel denied relief in Sidney Powell's "Kraken" suit. Judge Andrew Brasher wrote the majority opinion. Trump had appointed Brasher to the District Court and to the Eleventh Circuit. He was joined by Judges Wilson and Rosenbaum.

Yesterday, Judge Brett Ludwig, a Trump appointee to the Eastern District of Wisconsin expressed serious concern about another Trump case. The Milwaukee Journal-Sentinel reported that Judge Ludwig "told an attorney for the president he was asking for 'pretty remarkable declaratory relief' by asking to have the fate of Wisconsin's 10 electoral votes decided by the Republican-led Legislature instead of voters.

Last week, a unanimous Third Circuit panel rejected President Trump's emergency appeal in a Pennsylvania case. Judge Bibas, one of Trump's first circuit appointees, soundly ruled against the President who appointed him. He was joined by two other W. Bush nominees, Chief Judge Smith and Judge Chagares. (Jon Adler wrote about the opinion here.)

I'm sure there are other cases I missed. But you get the idea.

Last term at the Court, Justice Gorsuch and Kavanaugh ruled against the President in Trump v. Vance, the New York tax return case. Well, nominally ruled against him at least: they still declared their independence.

For a generation, self-interested critics will deem Trump-appointed judges as illegitimate by association. Trump will have attainted them! At least during the final year of the Trump presidency, the new appointees have faithfully followed their oaths.

NEXT: Today in Supreme Court History: December 5, 1933

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  1. Not entertaining baseless election fraud suits is a very low bar to claim that there are "No Trump judges". Only time will tell if the judges that Trump picked off the Federalist Society list will be honest judges or partisan hacks.

    1. I would distinguish between "Trump judges", in the sense of judges who are loyal to Trump and his particular ideology, insofar as he has one, and judges appointed by Trump, who have generally conservative views of the issues and certain philosophies of law and interpretation of the Constitution. There are not doubt quite a few of the latter, but decisions such as these suggest that there are few of the former.

    2. "Baseless" my ass.

      1. What's your alternative suggestion? Could it be:

        1) Trump has lawyers who are *so* incompetent that they admit in court "this isn't a fraud case" when it is a fraud case? or

        2) there's no fraud and they're not fraud cases?

        1. I mean, Trump's lawyers being that incompetent, and there being no fraud, can both be true.

  2. The right is just starting to learn it gains nothing by abandoning its own. Something the left has operated on for the last 50-60 years which is why they have dominated politics for the last half of the 20th century.

    If you want some historical precedent, just look at the criticism of Roe before it was brought or many of the more extreme civil rights pushes. Those were widely denounced as having no basis in law. However, because the left circled the wagons around their own, we now not only have them as law but some will call cases like Roe "super precedent."

    Should federal judges be installing Trump as President? No. But if the script was flipped and this was Biden, fill those seats with liberal judges and they would be keep the suits alive, raising questions, and pushing the various legislatures (especially if dominated by their party) to select the electors.

    1. It is an absurd statement to say if the script were turned somehow the Ds would be even more partisan then the Rs. There is zero evidence that that would happen, and the fact that it did not happen in 2016 is good evidence that you are full of it.

      1. It is far from absurd which is probably the very reason why you offer no evidence to support your statement of the absurd.

        1. And yet, there is her evidence, starkly and compellingly stated in black and white. Your cavil is another chink in your sparse armor.

          1. That is a lot of gnashing of teeth without putting anything behind it. I must have really hit a nerve with the lefties around here to invoke such a backlash.

            1. the fact that it did not happen in 2016 is good evidence that you are full of it.

              Care to try one last time?

              1. There wasn't a court press in 2016, but remember Hamilton electors and the media suggesting Trump's win was not legit because of something known as the "majority vote" (which doesn't exist in our constitutional framework, but whatever...) So let me ask you - care to try again?

                1. You said that the judges would have kept the suits alive if the tables were turned. But in 2016 the tables were turned and the suits did not even happen.

      2. Most "Democratic" judges are professional and honest, but I was disappointed in the number of "resistance" judges and their attendant national injunctions that surfaced over the last 4 years.

        1. The right blaming all court findings they don't like on the judge's antipathy to Trump is pretty bad news.

          1. Or just pointing out the obvious.

          2. Sarcastr0, I have to tell you, I have a divided mind about this entire election; both in process and result.

            I will go to my grave with the belief that POTUS Trump won this election. It is that simple. Why? The overwhelming number of statistical irregularities and voting irregularities, and other oddities that simply defy common sense. That doesn't make me crazy, or a kook. However, there is what I believe in my heart & mind, and then there is what can be proven in a court of law. And I am old enough to know those two things can be different, because I have seen it to be the case in life.

            So what does a good and loyal citizen do when they believe the election result is not a valid one? You'll be surprised by my answer: Trust the process our Framers left us. You know what that implies? That means I can accept the judiciary evaluating the evidence brought before them, in the interim period between election day (11/3) and the actual election of the POTUS (12/14); and say that the evidence before them is insufficient. I do not have to like the result in order to trust the process. That is where I ultimately come out on the question.

            What am I not going to do? This one is easy. I will not riot in the streets. I will not destroy or damage somebody else's private property. I will not commit crimes of violence against my fellow citizens. I will not denounce our government (and election) as invalid and corrupt and then demand we change it to conform to some new arbitrary set of rules. I will do none of those things (Ok, I admit my advocacy of repealing the 17th amendment might be a wee bit extreme).

            The political pendulum sways to and fro. There will be other elections. The results of this election have yet to be digested, or fully understood. In less than a year, there is another election (The People's Republic of NJ is 2021). And a year after that, another Federal election. The process our Framers left us I trust it, even though I believe the result was the wrong result.

            In the fullness of time, if there is anything there, it will eventually come out. In the aftermath of the 2000 election, there were multiple forensic audits. They took a few years. I believe the same thing will happen here as well. Those irregularities I mentioned will be examined and investigated. History will deliver the verdict.

            Last, I wonder what historians a century from now will say about this election. Will it even merit more than a paragraph in the 'history books' our great, great, great grandchildren will read? I mean, the election of 1876 barely gets a paragraph in any modern high school textbook. The circumstance is not terribly dissimilar to today. Yet there are so few citizens who are even aware of it.

            1. The overwhelming number of statistical irregularities and voting irregularities, and other oddities that simply defy common sense.

              Care to describe some of these irregularities?

              Because Trump's lawyers, whose information is presumably as good as yours, have uniformly failed to provide convincing evidence.

              I mean, I'm going to assume that you don't regard an election worker wearing rhinestones as an "irregularity."

              1. "I’m going to assume that you don’t regard an election worker wearing rhinestones as an “irregularity.”"

                Depends what kind of rhinestones.

              2. LOL = I mean, I’m going to assume that you don’t regard an election worker wearing rhinestones as an “irregularity.”

                No bernard11, definitely not an irregularity.. That was pretty funny.

            2. I'm not good at statistics; they're not intuitive to me at all. But expert statisticians pretty universally have explanations for everything that the right has trotted out.
              It's also telling that actual charges of fraud are something Trump's legal team has mostly stayed far away from. And those that have are laying out cases that have nothing to do with statistical evidence.

              Maybe you are better at stats than I am and can second guess the consensus. But it sounds more to me like you're not looking for alternate explanations when you hit one that validates you.

              Indeed, your The political pendulum sways to and fro. means you are not too committed to the fraud narrative, else that would be in question.

              May I live long enough to see this era in the history books; it'll be a helluva thing to see.

              1. Sarcastr0...I am much more in the, "The data I see does not conform to the reality I see' and doesn't really align with trends too well, mindset. To me, I ask questions when that is the case, so for now, I am asking a lot of questions. Some judges have answered some my questions. I think the forensic analyses that will be conducted for the next few years will answer a number of others.

                But the process is...Hold the election (we did), then the Electoral College votes (December 14). And then we have a POTUS-elect. And in late January, the POTUS-elect is sworn in and becomes POTUS. That's it. The bottom line is that I trust the process the Framers handed us.

                If/when Biden wins the EC, and everything I see indicates that he will, then he is the POTUS-elect. And he will become POTUS in late January. That is the process. That's it. Personally, I hope he does well, because we are all depending on it. Our Republic is in a very tough spot.

                1. I have to surmise that you're playing coy on what the "statistical irregularities" are, in your view, because you acknowledge that direct scrutiny will help to illustrate how preposterous your claims are. You and Sarcastr0 may be talking about exactly the same kind of "irregularities," but since you won't be specific about what you've claimed to have observed, there's no way to really know for sure.

                  This is not how reasonable people, confident in their beliefs, conduct themselves. This is how people try to maintain a plausibly reasonable appearance of skepticism while in fact holding demonstrably false beliefs.

                  1. SimonP...There is plenty of fodder out there to choose from. You know, and I know that.

            3. So that decided it, we shoudl jsut use advanced statistics instead of actual elections
              trumpski has never gotten a majority of the popular vote, yet he was obviously elected PResident

              Uhh, yeah
              your guy lost, by 7 million votes, but statistics say otherwise

              believe what you want
              psst, there is no Santa Claus

            4. There aren't an overwhelming number of statistical irregularities and voting irregularities that come anywhere close to changing the outcome of the election. The fact that you believe there are, and thus question the legitimacy of the election even if you grudgingly will accept the ultimate outcome, poisons our democracy.

              Trump, acting as the man-baby in chief who can't accept losing, is taking a dump on democracy. And scads of GOP officials who know better are complicit in their silence.

              1. Then poisoned we will be.

                1. It sounds like you are taking pride in being poisoned. I would hope instead you realize the damage to democracy Trump has done and condemn it.

                  1. Josh R...The Republic has survived questionable elections before. It is not our first rodeo.

                    1. How about the lasting damage done by calling into question an election that was not questionable?

                    2. Show me the lasting damage, Josh R.

                    3. Given this is the first time the loser has questioned (*) the outcome of the presidential election when that outcome is not questionable, the extent of the damage will not be known for some time. Is it your position that questioning the outcome when it is not questionable is acceptable because the damage is minimal?

                      (*) Trump is doing more than questioning the outcome. He has categorically stated he won.

                    4. Josh R...Better crack open your history books. Start with the election of 1820, and then move on to 1876.

                      And what is that lasting damage, anyway?

                      The EC votes in a week. I've said from the start this all has a termination date. The EC votes, and we have a POTUS-elect.

                    5. I think you mean 1824. Both of those outcomes were justifiably questioned.

                      The lasting damage is policies pursued or enacted by presidents will be viewed as illegitimate, which I hope you agree is very damaging.

                      Once the EC votes, will you then say Biden legitimately won a free and fair election, and Trump's claims to the contrary should be severely chastised?

                    6. I think you mean 1824. Both of those outcomes were justifiably questioned.

                      I think he meant 1824 too, and while he's crazy about 2020, I think he's more right than you are about 1824. There were no significant "irregularities" in that election; it's just that Jackson was a sore loser. The complaint was just that it was unfair that people ganged up on him.

      3. How much more doctrinaire did you want Sotomayor and Ginsberg to be?

      4. Molly, we'd have rioting in the streets if this had been done to the Dems.

        1. If what had been done? And in your answer, feel free to provide evidence.

          1. Ed doesn't need evidence.

    2. If you're going to make a tu quoque argument to justify your call for misconduct, you really ought to wait until the tu has actually quoque'ed.

      1. I thought that a frog was the only animal that quoque'd.

    3. Having eyes to see, but they cannot see. And ears to hear, but cannot hear. The Judge of judges sees this evil; can He remain silent forever?
      Will the gods of Rome and the gods of Greece save them from Erdogan? Ye do err, not fearing God or keeping His Commandments, but make your laws a stumbling-block for His people.

  3. There is just no way for the Trump legal team to prevail in these lawsuits because they haven't developed the evidence to show even by a preponderance that that the election was swung by fraud.

    I doubt they ever will be able to prove that, but I am fraud curious. The best way to proceed is for the GOP legislatures in WI, MN, PA, GA, AZ should use their oversight powers to order a thorough audit of the elections in their states. Such an audit is justified just by the fact that this is the largest instance of mail in voting in most states and we need to insure that the election was conducted properly. AZ and GA also have Republican governors in case legislation is necessary to conduct those audits, and they should be conducted independently of the SOS office, which might be conflicted. I also doubt that most of the Democratic governors would veto a non-partisan audit of the elections in their states, that would look pretty bad.

    1. The evidence may be there now for Georgia, but that won't be enough to change the outcome of the election.

    2. "they haven’t developed the evidence to show even by a preponderance that that the election was swung by fraud."

      If it were a mayor's race, or something similar, that isn't what they'd have to show. All they would have to show is that there were enough illegally counted ballots to exceed the margin in the race. The election would be decertified and held over.

      But there's no provision for a do-over in a Presidential race, so the only available remedy is decertification without a do-over, and none of the judges seem to be willing to go there.

      1. Assuming for the sake of argument that that's true (NB: it's not), where do you see Trump having shown even that much?

        1. Oh, that's been demonstrated, given how many states had the executive or legislative branches decide that actually following state election laws was optional.

          What's been going on is that the courts haven't cared if election laws were violated, so long as the violations occurred openly, with the approval of people in authority.

      2. In order to present evidence, a plaintiff often must first survive a motion to dismiss for failure to state a claim upon which relief can be granted. The Trump team has been losing at the pleading stage with no opportunity to even present evidence.

        1. Help us out here -- exactly what evidence would have been presented if the cases hadn't been laughed out of court?

      3. There has been no showing of illegal ballots in excess of the usual noise. trumpski is grasping at straws and raising money from the gullible

  4. These cases aren't much of a test of the proposition.

  5. Really?

    The cases before these judges are so weak, so lacking in even the appearance of serious litigation, so devoid of even basic legal tenets that even the most partisan judge could not rule in favor of Trump. The idea that these cases are a test of prejudice in the Trump appointed judges and Justices is ludicrous.

    It is far too early to determine if Trump and McConnell have succeeded in corrupting the judiciary so that political positions and preferences override the accepted legal structure. But time will probably be on the side of seeing political positions prevail in court rulings. And before anyone writes the typical attack on a personal basis instead of a factual one, consider how outraged you would be if this was the Dems openly and without shame stating that they were stacking the courts with partisan judges.

    1. Are you meaning the way Sotomayor and Ginsburg have been corrupting the judiciary?

  6. Yet another post that Josh should not have posted because it was so easily refuted.

  7. And if the Dems win the Georgia runoffs, those 4 or 6 new Supreme Court Associate Justices won't be Biden Justices.

  8. Yeah, that's the defining characteristic of judges appointed by Republicans: they decide based on the merits instead of deciding based on their personal agenda and then interpreting the merits in order to provide a justification for their ruling.

  9. These refusals are not really against Trump. Remember his actual objective, which is to get the members of his cult to send as much money to him as possible. He doesn't really want his court cases around the election to succeed!

  10. The head of Smartmatic just got himself a nice little promotion. He's now president of the Open Society Foundation. Guess he's done some impressive work.

  11. Can somebody explain to me how Congressmen like Mo Brooks have the authority to challenge a states electors. I read Article II and the 12th Amendment and don’t see it.

    1. 188~ election law
      apparently happens every year last few elections

  12. Trump’s were naturals.
    They already had the robes.
    Just dye white to black.

    1. Imagine having to advance actual arguments and not just screeching that everyone who disagrees with you is a racist. Wouldn't that be something?

      1. Imagine having to use 'facts' in an argument or legal case instead of making things up

  13. "The Laws that we make for purselves, are shallow, feeble things that perish quickly. But, The Laws of God... such Laws, From God~ would endure forever." Attributed to Jethro, Priest of Midea, father-in-Law to Moses.

    These judges are only proving 3 things in the eyes of the people; 1. That they are unfaithful servants 2. That they are wholly insufficent for the preservation of The Republic and 3. That its not long before Jezebel's own servants throw her out the window.

    1. Maybe don't think you have insight into God's thoughts on this.

  14. It was BS when Roberts said it and it still is

    Because some trumpski appointed judges are unwilling to end the Republic in support of their master is not indicative of their biases

  15. Obama judges do things like rule that there's a 14th Amendment right to sodomize one's "husband."

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