Why have Republican judges stood up against President Donald Trump’s attempts to undermine democracy? As the Washington Post’s Rosalind S. Helderman and Elise Viebeck report, dozens of judges, many of them chosen by Republicans and some of them nominated by Trump himself, have ruled against him and his allies — often in sharp, dismissive terms.
Paul Campos at Lawyers, Guns & Money explains two possibilities, and favors the latter:
The formalist answer would be that all these lawsuits were just an enormous pile of crap in terms of even the most basic legal rules, and that calling balls and strikes is easy when the pitcher throws the ball straight into the ground rather than tossing it at least somewhere in the general vicinity of the plate.
The realist answer is that at least some of these various state and federal judges who as a political matter very much wanted Trump to win the election still realized that these lawsuits were so preposterous on formal grounds that giving Trump any sort of even partial rhetorical victory (“this litigation raises serious questions about the procedures used” blah blah blah) would do far more damage to the institutional capital of the courts than it would help the long term goals of the American right wing.
What I find interesting is that if this is correct — that these judges are acting to advance their political goals — the key is that their political program remains the substantive legal agenda they’ve had for some time. In this respect, Republican judges differ from many Republican legislators, who have increasingly become indifferent to public policy at all (which, among other things, has made them easy marks for Trump’s content-free presidency).
Still, one of the few things that most Republicans care about intensely is the nomination and confirmation of orthodox Republican judges. And that’s what Trump gave them.
What that meant, however, was that Trump’s judges weren’t cronies who were loyal to him while being indifferent to the conservative legal agenda. Quite the opposite. His three Supreme Court nominees are good examples: It’s likely that any other Republican president would’ve made the exact same choices. That’s also true for his circuit and district court nominees. Sure, to the extent that they’re partisan, they’ll rule in favor of policies that Republicans prefer. That’s what they tended to do before the election. And they would probably lean toward Trump if his post-election lawsuits presented them with plausible paths within the law. But they simply don’t share Trump’s total lawlessness — and most of them have longer-range goals in mind, not simply the preservation of Donald Trump’s administration.
All of which is yet another example of Trump’s fundamental weakness as a president. He relinquished his influence over the judiciary to orthodox conservative Republicans, rather than attempting to put Trump-loyal judges on the bench. He never had the clout to put his cronies in the federal courts. And now the Republicans he did put there haven’t saved him.
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Only Alito and Thomas had the courage to dissent! 