The Federal Courts’ Future Is on the Ballot


Two courthouse developments on November 2 confirmed that our federal judicial system is working, especially in the lower courts. First, a federal judge in Phoenix, balancing competing constitutional rights, barred members of a far-right group from openly carrying a firearm within 250 feet of a ballot drop box.

Second, the Trump Organization, on the eve of trial, decided not to try its luck with a jury in a system that operates on truth. Former president Donald Trump’s company settled with protestors who had sued because security guards outside the Trump Tower in New York had pummeled the demonstrators back in September 2015. They were protesting Trump’s presidential campaign opening statement about Mexico sending “rapists” to America.

From what we know of Trump’s micro-managing style, there’s not much question about who authorized the attack on the protestors in 2015 or this week’s settlement with them. It’s likely someone who blusters like a neighborhood bully when he thinks there’s no consequence, then pays the piper when folks hold him to account before a judge and jury.

The federal district courts and courts of appeals that Congress created under the authority of the Constitution’s Article III are where the overwhelming majority of federal lawsuits get decided. They remain a bulwark for fact-finding and truth, even amidst a country awash in election lies and conspiracy theories.

But if Republicans retake the Senate on November 8, count on the McConnell majority to stall the appointment of federal trial judges and appellate judges who believe in facts and truth. And with an election map that strongly favors a Republican Senate majority in 2024, if Donald Trump is reelected, it’s Katie bar the door for the years that follow. Americans who believe in the rule of law will surely long for the days when Florida federal district court judge Aileen Cannon’s lawless rulings about the FBI’s judicially approved search of Mar-a-Lago were outliers.

In a future scenario with a Republican Senate and Trump in the White House, the litmus test for appointment is likely to go well beyond anti-abortion or anti-LBGTQ views. You can bet that federal judicial applicants who want to climb the first step to nomination will need to avow belief that the 2020 election was stolen.

The good news is that for now, the lower courts in our federal system, while far from perfect, earn high marks for protecting our Constitution based on the law and the facts. Here’s a short reminder list from recent months.

  1. Since March, juries in courtrooms run by federal trial judges appointed by presidents of both parties have convicted every participant in the January 6 violence who has gone to trial and Steve Bannon for defying the January 6 committee’s subpoena to provide evidence about what led up to that day.
  2. On September 22, the conservative U.S. Court of Appeals for the Eleventh Circuit swiftly reversed Judge Cannon’s unsupportable Mar-a-Lago rulings for Trump. The Supreme Court let the ruling stand.
  3. On October 19, California federal judge David Carter, in rejecting lawyer John Eastman’s attempt to shield emails from the January 6 Committee, issued an opinion finding that Trump knew his ballot fraud claims were false. If you needed a decision showing that our judicial system has stood up to election denialism, there it is.
  4. On October 21, the Eleventh Circuit rejected Senator Lindsey Graham’s (R-SC) wayward attempt to avoid testifying before a Fulton County, Georgia, grand jury investigating Trump’s alleged interference in the state’s election. The grand jury wants to hear about Graham’s November 13, 2020 phone call to Georgia Secretary of State Brad Raffensperger. Again, the Supreme Court left the Eleventh Circuit ruling in place, rejecting Graham’s attempt to avoid his duty.
  5. On October 27, a federal district court in South Carolina ordered former Trump White House Chief of Staff Mark Meadows to testify before the Fulton County grand jury investigating Trump.

I could go on, but you get the idea.

With a Senate controlled by his own party, President Joseph Biden has put his judicial nominees on the bench at an unprecedented pace. You can be confident that there are no election-deniers or conspiracy theorists among those judges.

Yes, Virginia, elections have consequences, including for the administration of justice. In particular, the January 5, 2021 Georgia runoffs electing Senators Rafael Warnock and Jon Ossoff created the current Senate majority that has confirmed a record number of judges, and they are jurists who issue decisions based on proven facts.

The consequences of the coming election will affect all of our lives. Pundits have framed it as whether Americans care more about inflation than democracy. Lawyers and everyone who cares about the rule of law should be sounding the alarm that truth and justice in courthouses across the land are also on the ballot.

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