GOP Twists Itself In Knots To Shield Trump’s Court Picks

Grassley uses – Sen. Chuck Grassley is trying to block Democrats from forcing Trump’s judicial nominees to answer who won the 2020 election. But during a Senate Judiciary Committee hearing, Republicans leaned on Supreme Court Justice Ketanji Brown Jackson’s own refusal to dis

WASHINGTON — In the Senate Judiciary Committee hearing room this week, Sen. Chuck Grassley held up Supreme Court Justice Ketanji Brown Jackson as proof that Trump’s court picks shouldn’t have to say who won the 2020 election.

Grassley. the 92-year-old Iowa Republican who chairs the committee. opened Wednesday’s session with a reading from Jackson’s confirmation record. calling it an “entirely prudent and unremarkable” example of what nominees shouldn’t be forced to answer. The message was clear: Democrats shouldn’t keep pressing nominees on a basic question. even though none of them are willing to name the winner.

Grassley’s “new and absurd defense” hinged on Jackson’s written follow-up responses to questions from the committee submitted after her March 2022 nomination hearing, responses that included a decision not to weigh into “political debate” about the election.

“When asked if she’d ever commented on the results of the 2020 election. Justice Jackson stated. ‘It would be inappropriate for me to publicly weigh into any subject of political debate. ’” Grassley read. “She gave the same answer when asked whether she ever expressed skepticism about the 2016 election results.”.

Grassley pressed on, arguing Democrats had turned what he described as the same point into a “months-long circus.” He asked, “Why have they created a months-long circus about Trump nominees for making the exact same point Justice Jackson made during her confirmation process?”

By the end of the day, Democrats and legal observers were left pointing out how the comparison was being used—less to clarify rules than to provide cover for nominees who have been careful not to say that President Donald Trump lost in 2020, an outcome the GOP’s critics say these nominees know well.

It wasn’t just the rhetorical strategy that drew fire. The committee’s clash has unfolded for months around a single question: who won the 2020 election.

Grassley has pushed back against Democrats asking Trump’s judicial nominees who won the 2020 election. arguing “Of course. none of the nominees counted ballots. ” and insisting the exchange about election certification is being mishandled. At one point in earlier remarks. he said a president is determined by who gets the most electoral votes—declaring. “Under Article II and the 12th Amendment of our Constitution. the electoral college dictates who wins presidential elections.”.

But in Wednesday’s hearing, the debate sharpened around whether Jackson’s refusal should be treated as permission.

Two Trump nominees—Benjamin Flowers, selected for a seat on the U.S. Court of Appeals for the 6th Circuit, and Matthew Schwartz, nominated for a seat on the U.S. Court of Appeals for the 2nd Circuit—did exactly what Grassley’s argument was designed to protect. When Sen. Richard Blumenthal (D-Conn.) asked who won the 2020 election, both pointed back to Jackson.

“I’ll incorporate the answer that Justice Jackson gave that Chairman Grassley referred to earlier,” Flowers said.

Schwartz followed with his own reinforcement: “I think the answer that Justice Jackson gave is the only legally and ethically correct answer,” he told Blumenthal.

For Democrats, that alignment looked rehearsed.

“This has been ridiculous,” Sen. Dick Durbin (D-Ill.), the top Democrat on the committee, said in an interview published Thursday. “I’ve been around Chuck for a long time. I think he is a little bit embarrassed by the answers that have been given by nominees.”

Durbin added that the responses were “clearly rehearsed, carefully choosing their words” to “sound credible” while “daren’t say anything that might offend Trump and his MAGA leaders.”

The disagreement also centered on who Jackson was when she answered those questions.

Durbin and others argued that Jackson’s posture was shaped by her status at the time. Jackson was a sitting judge on the U.S. Court of Appeals for the D.C. Circuit when she was nominated to the Supreme Court, making her bound by the Code of Conduct for U.S. Judges. That code. they said. requires federal judges to uphold the independence of the courts and avoid even the appearance of impropriety.

But Flowers and Schwartz are not sitting judges. Schwartz, the materials described, is currently Trump’s personal lawyer, a conflict critics argue already complicates his role. Flowers, described as a former Ohio solicitor general who most recently was in private practice, is also not a judge.

Federal judges are legally mandated to follow the judicial code, while federal judicial nominees are not. Instead, the code is “designed to provide guidance” to them, beyond the baseline legal requirements.

When Blumenthal pushed back during the hearing, he said the distinction mattered.

“Justice Jackson said it would be inappropriate for her as a sitting federal judge,” he told Flowers. “You are not a sitting federal judge.”

Flowers then tried to muddy the legal language, but Blumenthal pressed further: “I think your failure to answer that question mocks this committee.”

Carl Tobias, the Williams Chair in Law at the University of Richmond and a frequent commentator on federal judicial nominations, argued that the Jackson reference made little sense in the context of Wednesday’s hearing.

“What the GOP and Grassley were saying was not very clear. [Wednesday’s] nominees are NOT sitting judges,” Tobias said in an email. “At best, it was disingenuous to invoke her testimony as a nominee.”

Grassley’s office denied the criticism. In response, a spokesperson, Clare Slattery, disputed that judicial nominees aren’t legally bound by the judicial code.

“If anything, Democrats should be embarrassed that they don’t have a basic grasp of the judicial Code of Conduct, which clearly states, ‘The Code is designed to provide guidance to judges and nominees for judicial office,’” Slattery said in a statement.

Slattery added that the same logic appeared in Jackson’s own explanation for declining to engage in political debate about the 2020 election. “Justice Jackson acknowledged the same when she declined to engage in a political debate regarding the 2020 election. not just because she was a sitting federal judge. but also a ‘pending judicial nominee. ’” Slattery said. “Judicial nominees, just like federal judges, are not political pundits.”.

A request for comment from Justice Jackson was not returned.

Grassley’s defense has also been attacked as hypocritical by Democrats who say the questions put to Jackson in her own confirmation process were different—and were tied to the political context of each election.

The argument turns on what Sen. Ted Cruz asked Jackson in those March 2022 follow-up responses. For 2016. Cruz asked whether Jackson had ever “expressed skepticism” about “the validity of the outcome.” The description provided in the source material traces that to claims of Russian interference that allegedly swayed the election to Trump. A special counsel investigation concluded in 2019 that Russia interfered “in a sweeping and systematic fashion. ” but found no evidence that Trump’s campaign coordinated with them.

For 2020, Cruz’s question was different. It asked whether Jackson “ever commented … on the results.” In the package of responses described, the questions appear on page 136 of Jackson’s 330-page set of answers.

Democrats argue those Cruz questions were aimed at making Jackson appear political—by pressing whether she had said anything bad about Trump being elected—rather than forcing vote-count answers.

Josh Orton, president of Demand Justice and a former top aide to Sen. Bernie Sanders (I-Vt.), said the political intent behind the pressure is hard to miss.

“It was truly a political matter,” Orton recalled. “No way was he asking her essentially whether she agreed with the sitting president who nominated her that the election results were bogus.”

Orton added, “Also, Jackson wasn’t nominated by an election denier. She wasn’t nominated by someone who attempted to overthrow an election and expected his nominees to lie about it, too.”

He said the avoidance behavior would follow nominees.

“It’s going to haunt them for the rest of their careers.”

Even Durbin—who has accused Republicans of being defensive about the 2020 question—portrayed Grassley’s approach as less about process and more about shielding Trump loyalists from saying what critics insist is obvious.

The committee’s fight has not been limited to formal speeches. Grassley’s own words, critics noted, have undercut his position.

During a hearing last month where more of Trump’s nominees were being questioned, he was caught on a hot mic asking his staff, “What would be wrong if they said Biden won?”

And throughout the current wave of hearings, Durbin said the Republican discomfort with the question shows Democrats are pressing “right.”

“They’re embarrassed. They know that, at the end, there’s going to be a composite video that shows these painful moments of those people trying to avoid saying the truth, and everyone knows it,” Durbin said. “It’s going to haunt them for the rest of their careers.”

Chuck Grassley Senate Judiciary Committee Trump judicial nominees Ketanji Brown Jackson Benjamin Flowers Matthew Schwartz Richard Blumenthal Dick Durbin election 2020 judicial nominations Code of Conduct for U.S. Judges Article II 12th Amendment