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Even Trump-Appointed Judges Balk at President’s Efforts to Overturn the Election

FILE - People gather as they celebrate media announcing that Democratic U.S. presidential nominee Joe Biden has won the 2020 U.S. presidential election, in Philadelphia, Pennsylvania, Nov. 7, 2020.
FILE - People gather as they celebrate media announcing that Democratic U.S. presidential nominee Joe Biden has won the 2020 U.S. presidential election, in Philadelphia, Pennsylvania, Nov. 7, 2020.

Federal judge Stephanos Bibas pulled no punches when he issued a scathing opinion last Saturday rejecting the Trump campaign’s latest attempt to overturn the outcome of the November 3 presidential election.

“Charges of unfairness are serious. But calling an election unfair does not make it so,” Bibas wrote in a 21-page ruling dismissing a lawsuit that sought to stop the certification of Pennsylvania's voting results. “Charges require specific allegations and then proof. We have neither here.”

This was among the latest repudiations of President Donald Trump’s unsubstantiated claim that the election he lost to former Vice President Joe Biden was rigged and that millions of votes were illegally cast or discounted.

In the month since the election, Trump and his allies have filed more than three dozen lawsuits, mostly in state courts, with judges ruling against them in all but one minor case.

But Bibas, 51, is not just another judge on another court. He is a Trump appointee on the U.S. Court of Appeals for the 3rd Circuit, with jurisdiction over Pennsylvania and two other states. A former member of the conservative Federalist Society, Bibas was appointed in 2017, one of 53 appellate judges the president has put on the federal bench since he took office, more than any other president since Jimmy Carter.

Bibas is not the only Republican-appointed federal judge to dismiss Trump’s claims of rampant voting fraud and tabulation irregularities. Steven Grimberg of the Northern District of Georgia and several other Republican-appointed judges, have ruled against the president.

Judicial independence

To skeptics who view judges as little more than politicians in robes prone to issuing politically motivated opinions, the notion that a Trump-appointed judge would weigh against the president’s interests may be hard to fathom.

But that is a misconception, said Joseph R. Grodin, a former associate justice of the California Supreme Court. Despite the country’s deep political and ideological divisions, “judicial independence is alive and well,” he said in an interview with VOA.

Grodin said most judges simply follow the law and decide cases on their merits, so it was no surprise that Bibas found the evidence-free Trump lawsuit without merit.

Jonathan Turley, a conservative law professor at George Washington University, noted that federal judges are given life tenures designed to protect them from political influence.

“The federal courts have worked precisely as designed in the last four years, but particularly in the last four weeks,” he said. “Federal judges, including Trump appointees, have consistently ruled against the president’s challenges to the election. They have stated that the president has not submitted sufficient evidence to justify the type of sweeping relief that he has requested.”

Republican-appointed judges did not always side with the Democrats on important election issues throughout the 2020 campaign cycle, particularly regarding mail-in voting during the pandemic, a concept Trump and Republicans vigorously attacked as prone to corruption.

In the months leading up to the general election, while a number of federal district courts upheld efforts by states to accommodate voting by mail, Trump-appointed appellate judges often cast the deciding vote to block them, according to Josh Douglas, a law professor at the University of Kentucky.

Justin Levitt, a former Justice Department official and a professor at Loyola Law School, said that while Trump’s appointments have made the federal judiciary clearly more conservative, courts have been acting as they were designed to perform.

“That hasn't changed in the post-election period, and there's no reason to expect that it would,” Levitt said.

Levitt said the courts have afforded the Trump campaign and other Republican plaintiffs ample opportunity to make their case that the election was marred by widespread fraud.

"And at every stage, the litigants have failed to come forward with any reliable evidence that anything improper happened," Levitt said in an interview with VOA.

Bibas’ opinion on behalf of the 3rd Circuit came in response to a major lawsuit filed by the Trump campaign on November 9, two days after Biden was declared the presidential winner after securing Pennsylvania’s 20 electoral votes.

The 89-page lawsuit asked a federal district court to stop Pennsylvania from certifying the election, alleging the state had created “an illegal two-tiered voting system” with the widespread use of voting by mail during the pandemic.

After the Pennsylvania ruling, Trump’s lawyer, Rudy Giuliani, and campaign senior legal adviser, Jenna Ellis, issued a statement on the 3rd Circuit’s opinion.

“The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud,” they wrote. “We are very thankful to have had the opportunity to present proof and the facts to the PA state legislature. On to SCOTUS!”

While publicly making wild claims about election fraud, Giuliani offered no evidence and admitted in court on November 18 that "this is not a fraud case." Three days later, Judge Matthew W. Brann of Federal District Court for the Middle District of Pennsylvania, a Republican appointed by former Democratic President Barack Obama, tossed out the lawsuit, saying it lacked merit and was rife with “speculative accusations.”

“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,” Brann, like Bibas, a former member of the Federalist Society, wrote in a 37-page opinion. “Our people, laws and institutions demand more.” The 3rd Circuit then upheld the decision.

In two other cases in Pennsylvania, federal judges appointed by former Republican President George W. Bush denied a GOP effort to stop vote counting in Philadelphia and a separate attempt to throw out "cured" or corrected mail-in ballots.

And in Georgia, another state Trump lost, Grimberg, who was appointed by Trump in 2019, threw out a lawsut seeking to stop the certification of the state’s election results.

“To interfere with the result of an election that has already concluded would be unprecedented and harm the public in countless ways,” he wrote. “Granting injunctive relief here would breed confusion, undermine the public’s trust in the election, and potentially disenfranchise over one million Georgia voters.”

Supreme Court

While Trump wants the U.S. Supreme Court to take up his cause, experts say the high court is all but certain to shun a case that has been repeatedly dismissed by the lower courts.

Turley said Republicans have raised legitimate concerns about voting irregularities but that Trump’s “reckless rhetoric” about fraud has undermined his legal prospects before the high court.

“I cannot imagine a worse approach to seeking relief before the United States Supreme Court,” Turley said.

Even if the Supreme Court agrees to hear the case, it is far from certain that the justices will rule in Trump’s favor. Turley noted that two of Trump’s three Supreme Court picks — Justices Neil Gorsuch and Brett Kavanaugh — have voted against Trump and his administration on key issues.

With his court losses mounting, Trump appears increasingly resigned to the fact that he may not be able to get the Supreme Court to rule in his favor.