When Rudy Giuliani’s team of Trump election lawyers cites the authority of a dissenting opinion from liberal icon Justice Ruth Bader Ginsburg, it clearly has abandoned all sense of constitutional conservatism.
That’s what President Trump’s team did this week, specifically embracing Ginsburg’s losing argument in the 2000 election case of Bush v. Gore. Worse, they were citing the part of that case in which even two of Ginsburg’s fellow liberals sided with Republican George W. Bush against Democrat Al Gore, leaving a clear 7-2 majority against Ginsburg’s position.
Trump’s team was arguing that Tuesday’s “safe harbor” day, by law the date by which states’ certification of their presidential election results become official, is actually immaterial. This is precisely the issue on which the entire Bush v. Gore decision hinged, and the Supreme Court rejected the specious Gore-Ginsburg position on it.
Yet, here was the substantive line in the official statement from Trump lawyers Giuliani and Jenna Ellis about the safe harbor deadline: “Justice Ginsburg recognized in Bush v. Gore that the date of ‘ultimate significance’ is [not until] January 6, when Congress counts and certifies the votes of the Electoral College.”
This is embarrassing. Liberal justices Stephen Breyer and David Souter joined the court’s five conservatives in ruling emphatically that “[i]n Presidential elections, the contest period necessarily terminates on the [safe harbor] date set by” the 1948 statute governing the process. Ginsburg “recognized” nothing. Instead, she imagined a chimerical possibility for Al Gore still to prevail — an extralegal fantasy based on a vague sense of cosmic justice with no logical relation to any words in the U.S. Code.
What Giuliani and Ellis cite is thus not even bad precedent; it isn’t precedent at all. Nor does it deserve to be precedent because it was left-wing poppycock to begin with.
A conservative can grimace at the bad lawyering (or perhaps lawyering in bad faith) by the Trump team even while believing there were significant instances of vote fraud in November’s elections. The reality remains that, in dozens of tries, not a single court has found that the Trump team has come close to proving enough vote fraud in enough states to change the apparent victory for Joe Biden. For Trump’s lawyers now to advocate blowing right past the duly legislated safe harbor date, on the basis of a rejected argument from the most famously liberal justice of the past 30 years, in a desperate bid to retain power for the defeated president, is for them to prove themselves devoid of legal principle.
Just like the president who hired them.
