Trump’s judges are all election deniers

For most people, “Who won the 2020 election?” is a straightforward question. 

Not so for many of President Donald Trump’s nominees for federal judgeships. 

In response to questions from Senate Democrats, Trump’s judicial nominees won’t state the simple fact: Former President Joe Biden won, and, by extension, Trump lost.

It means that scores of judges are being added to the federal bench who don’t publicly accept the results of the 2020 election — raising concerns about how they’d approach any politically charged election cases that come before them.

To avoid indirectly implying — or explicitly saying — that Trump lost, his nominees have repeatedly claimed that saying Biden won would be an improper political statement. Instead, they have engaged in rhetorical gymnastics and couched their answers in unusual and evasive language, such as by saying Congress “certified” Biden as the winner or that he served as president.

Democrats have repeatedly questioned Trump’s judicial nominees about the 2020 election over concerns that if they can’t answer a basic, factual question for fear of offending the person nominating them, how can they be trusted with the basic facts of a case — particularly a case potentially involving the man who lost that election?

That gambit was on clear display during a confirmation hearing for two Trump nominees before the Judiciary Committee last week. 

In addition to resorting to those oft-repeated phrases, Benjamin Flowers and Matthew Schwartz, Trump’s picks for appellate openings, also appealed to an answer Supreme Court Justice Ketanji Brown Jackson gave during her own confirmation process.

Asked if she had ever commented on the results of the 2016 and 2020 elections, Jackson wrote in 2022 that “it would be inappropriate for me to publicly weigh in [on] any subject of political debate,” but added that she “had private conversations on a wide variety of topics.”

After Sen. Chuck Grassley (R-Iowa) highlighted her response at the outset of the hearing, both Flowers and Schwartz cited her answer when asked by Sen. Richard Blumenthal (D-Conn.) about the outcome of the 2020 election.

“I’ll incorporate the answer that Justice Jackson gave that Chairman Grassley referred to earlier: It wouldn’t be appropriate for me to comment on the outcomes on any elections except to say that, legally speaking, Joe Biden was certified,” Flowers, a former Ohio solicitor general whom Trump ⁠nominated to join the 6th U.S. Circuit Court of Appeals, responded.

“Senator, I think the answer that Justice Jackson gave is the only legally and ethically correct one,” Schwartz, Trump’s nominee for the New York-based 2nd U.S. Circuit Court of Appeals, also said.

Asked by Blumenthal who won the popular vote in 2020, Schwartz, a Sullivan & Cromwell lawyer who previously served as Trump’s personal attorney, added that he “can’t answer that question in the way you want me to.”

“The only legally, ethically correct answer is the one that prior nominees have given, which is that Joe Biden was certified as president in 2020,” he said.

Schwartz also could not answer Blumenthal’s question on whether the U.S. Capitol was attacked on Jan. 6, 2021.

“Senator, you’re asking me to weigh in on public characterizations,” he said. “What I will say is that the Capitol was — there was trespass and there was violence on Jan. 6.”

“You know, what makes me angry is not just the insult to the role of this committee but to our intelligence. You really expect us to accept these canned, rehearsed, practiced answers, repeated again and again and again?” Blumenthal said. “You both know better.”

Schwartz’s nomination marked the third time Trump tapped one of his former personal attorneys for a lifetime judgeship. 

At Sullivan & Cromwell, Schwartz represented Trump in a personal capacity on numerous occasions, including in the appeal of his 2024 hush money criminal conviction in New York. As a result of this legal work, Trump’s Save America PAC reportedly owes Sullivan & Cromwell about $400,000.

Although some of Schwartz’s compensation may be tied to that outstanding bill, he refused to disclose during the hearing whether Trump had any financial obligations to him. Instead, he claimed he would “rule without fear or favor” and would no longer receive compensation from his legal work with the president.

Last July, Senate Republicans for the first time confirmed one of Trump’s former attorneys by approving Emil Bove for a seat on the Philadelphia-based 3rd U.S. Circuit Court of Appeals. The Senate is also considering the nomination of another, Justin Smith, to the Cincinnati-based 6th U.S. Circuit Court of Appeals.

Like Flower and Schwartz, both Bove and Smith also couldn’t plainly state that Biden won in 2020.

“President Biden was certified as the winner of that election,” Bove said during his hearing. He added that saying Biden won the popular vote and received over 270 votes in the Electoral College would be “political” and improper because “they are also tied up in ongoing litigation.”

At the time, there were no lawsuits challenging Biden’s 2020 victory.

In his hearing, Smith, who was directly involved in efforts to overturn the 2020 election while working in the Missouri Attorney General’s Office, gave a nearly identical answer, saying that Biden was merely the “certified” winner.

“The Electoral College votes in December 2020. In January of 2021, Congress met to open and count those votes, and as a result of that process, Congress certified Joe Biden as president,” Smith said.