Four more judicial nominees refuse to say Trump lost the 2020 election
“I am insulted as a member of this body that you simply won't tell us the truth,” Senator Blumenthal said.
The Senate Judiciary Committee this morning held a hearing on four more of Trump’s lifetime judicial nominees, including Anna St. John for the Eastern District of Louisiana, John Thomas Shepherd for the Western District of Arkansas, Andrew Davis for the Western District of Texas, and Chris Wolfe for the Western District of Texas.
The committee also considered the nomination of Robert Cekada to serve as director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Some senators, including Senators Cory Booker and Adam Schiff, only directed questions to Cekada and did not engage with the four judicial nominees on the panel.
During his opening remarks, Chair Chuck Grassley spoke about “the need for judges to remain in their constitutional lane” following what he says has been “a lot of judicial activism around the country in recent months.” Judges, Grassley said, “must interpret and uphold the law in a neutral and impartial manner. They serve the rule of law, not political ideology or personal position. And that’s why I’m so pleased with today’s four judicial nominees. Their diverse careers demonstrate a commitment to our Constitution and the rule of law.”
If Grassley is interested in nominees with diverse careers, and ones who would serve the rule of law instead of political ideology, then he may be in need of a time machine.
In Ranking Member Dick Durbin’s opening statement, he spoke about the Trump administration’s assault on the rule of law. “We’re here to determine whether each of the nominees is qualified…for a lifetime appointment to the bench. One key question is whether you will have independence as a judge, an Article III judge, to rule against the government without fear or favor if it does something illegal or unconstitutional,” Durbin said. “The stakes have never been higher in modern times. In its second iteration, the Trump administration has gone to unprecedented lengths to upend the rule of law, violate the constitutional rights of Americans, and blatantly ignore court orders.”
Moments later, after the nominees introduced themselves and after he asked St. John questions about previous testimony she’s given, Durbin walked onto the Senate floor and voted to confirm one of Trump’s judicial nominees.
Refusing to say Trump lost in 2020 and dodging questions about January 6
Senator Richard Blumenthal opened his questioning with this framing: “Senator Schmitt asked you about moments of your career where courage was demanded. And so I’m going to pose to you some questions that may evoke that kind of moment.
Let me ask each of you, beginning with Mr. Davis: Who won the popular vote in 2020?”
Davis responded that, in 2020, “President Biden was certified and served four years as president.” When Blumenthal asked again, he repeated himself. Blumenthal then turned to St. John, who responded that “Joe Biden was certified the winner of the 2020 election, and served four years.” Shepherd said that “President Biden was certified the winner and served four years.” Wolfe simply responded with “Same answer, senator.”
“Same answer, once again — refusing to acknowledge who won the popular vote,” Blumenthal said, dismayed. “I am insulted as a member of this body that you simply won’t tell us the truth. And that speaks chillingly of what you will do as a United States district judge if you’re confirmed.”
Blumenthal then asked each nominee who won the Electoral College in 2020, and the same thing happened. “In 2020, President Biden was certified and served four years as president,” Davis responded. The other three nominees all said “Same answer.”
“Don’t you feel kind of like monkeys or puppets here,” Blumenthal asked them, “having been given that answer by your minders, without standing up — speaking out — [about] what the truth is?”
He then turned to the January 6 insurrection and asked each nominee whether the U.S. Capitol was attacked on January 6, 2021. “Senator, any characterization of the events that occurred on January 6 would wade into political waters,” Davis responded. “As a sitting nominee for a federal judicial position, it would be inappropriate, under the canons of judicial conduct, for me to discuss anything that would characterize…”
Blumenthal, cutting him off, asked whether he’d seen video of the attack. When Davis responded in the affirmative and Blumenthal asked what he saw, Davis replied that “the video speaks for itself, and people can draw their own inferences. Anything more than that would be getting into characterizing.” That was not the answer Blumenthal wanted to hear. “You’re not going to be sitting on a case involving the January 6 attack on the United States Capitol. To tell us you won’t answer this question is an insult to our intelligence,” he said.
And it didn’t get better. St. John said it would be “inappropriate, as a judicial nominee, to weigh in on these political controversies.” When she affirmed that she’s seen video footage from that day but that she couldn’t say more, Blumenthal told her that “If you’re honest with this committee, what you saw is a bunch of insurrectionists attacking the Capitol with all manner of weapons, some of them lethal.”
Shepherd said that, as a sitting judge, he couldn’t respond. But when Blumenthal noted that he is a sitting state court judge and asked whether he has a case before him dealing with January 6, he conceded that “I do not, senator.” Wolfe only responded that he would give the same answer as his colleagues.
“You’ve all been carefully rehearsed,” Blumenthal said. “You are going to be on the bench if you’re confirmed, carefully rehearsed, for what you will say about the Constitution and the statutes? Without the kind of courage that you should be expected to show in that position — a position of trust, more serious than any other in our government, with a lifetime tenure. I think you failed the test.”
During her questioning, Senator Mazie Hirono asked Davis about this as well, specifically because of his representation of Fox News in the Dominion Voting Systems case.
As Alliance for Justice notes in a letter to the Senate:
Davis also represented Fox News in a suit filed by voting machine provider Dominion Voting Systems. While the Fox media corporation ultimately agreed to pay Dominion $787.5 million for spreading falsehoods about Dominion voting machines, the lies amplified by Fox journalists perpetuated election denialism that continues to this day. Davis’s representation of Fox News in this case greatly undermined the integrity of American democracy.
Hirono asked Davis: “Did Donald Trump lose the 2020 election? Yes or no.” Davis responded that “President Biden was certified as the president and served four years.”
“It’s very clear that all of our nominees have been coached to respond in that way, and the fact that none of you can acknowledge who actually won the election is pretty disturbing when we are focused on the expectation that judges will rely on facts,” Hirono said.
Relatedly, it should be noted that Davis also defended Texas Governor Greg Abbott’s redistricting plan in Abbott v. Perez. According to Alliance for Justice’s fact sheet, “Voters of color challenged the plan as an unconstitutional racial gerrymander that violated the Voting Rights Act. Davis helped draft the briefs in this case and prepped the Texas Solicitor General for oral argument before the Supreme Court. The conservative majority sided with Davis and Texas, ensuring that large swaths of minority voters would no longer be protected by the Voting Rights Act in many of the ways Congress had intended. His work directly undermined their most important and basic democratic rights.”
In addition to Alliance for Justice’s letter and fact sheet linked above related to Davis and his record, People For the American Way also sent this letter opposing his confirmation.
St. John said she’d check whether Griswold or Eisenstadt have been overturned
Senator Hirono noted that St. John was “formerly a fellow at the Independent Women’s Forum, which had previously advocated for exceptions to the right to access contraception for women.” Hirono asked St. John whether she considers the Supreme Court’s decisions in Griswold and Eisenstadt to be settled law and if she would follow the precedents if confirmed.
“If I am so fortunate as to be confirmed as a district court judge, I would be bound by all Supreme Court precedent,” she responded. But when Hirono followed up and asked whether she considered the two cases to be settled law, St. John said that “I would have to look and see whether they’ve been overturned, senator. If they’re binding law, I would apply them.”
“That’s a no,” Hirono replied.
It is appalling and disqualifying that a district court nominee told a senator that she would need to check whether these two landmark Supreme Court decisions have been overturned.
As the National Family Planning & Reproductive Health Association notes, “For more than 50 years, Eisenstadt, together with Griswold, have been the legal precedents foundational to the recognition of many constitutional rights, including abortion, the rights of minors to access reproductive health care, and the rights of LGBTQ+ individuals to intimate relationships, marriage, and parenthood.”
St. John’s disturbing record
Not enough about St. John’s shameful civil rights record was brought up at today’s hearing, but many civil rights and progressive organizations have written letters of opposition that are worth highlighting.
A letter from the National Women’s Law Center summarized her record in this way:
Ms. St. John’s efforts to undermine the rights of consumers, workers, survivors of sexual harassment and assault, people of color, and LGBTQ people demonstrates that she would not be a fair minded and impartial judge. Ms. St. John has dedicated her legal career to protecting the wealthy and powerful at the expense of consumers and workers. She uses an array of manipulative tactics, from pretending to speak for consumers, to sowing division against vulnerable communities, to spreading misinformation to undermine class actions, to politicizing consumer advocacy and impugning lawyers who hold corporations accountable. St. John’s clear bias in support of wealthy corporations above the laws and legal protections critical to workers, students, and the public is worrying and particularly inappropriate for a federal judge charged with upholding equal justice under law. Ms. St. John hides her dedicated advocacy behind a carefully crafted façade of so-called consumer protection and support for workers. As the Senate considers this nomination, it must not allow Ms. St. John to easily avoid her troubling record.
Ethan Rice, senior attorney with the Fair Courts Project at Lambda Legal, told me last month that “President Trump has nominated to the federal judiciary attorneys he’s explicitly praised for their anti-transgender work” and that “Anna St. John, nominated to the District Court for the Eastern District of Louisiana, has written numerous briefs arguing against the rights of transgender people.”
This record is further explored in a fact sheet released by Alliance for Justice. As they write:
St. John authored and co-authored numerous amicus briefs undermining LGBTQ+ rights. In 303 Creative LLC v. Elenis, St. John supported allowing businesses to discriminate against LGBTQ+ individuals under the guise of religious freedom. In Green v. Miss USA, St. John called for banning transgender women from the Miss USA pageant as it “would infringe upon the pageant’s rights” (emphasis added). Using dehumanizing language, St. John has also supported banning transgender women and girls from teams that are consistent with their gender identity. She misgendered them in her briefs.
Such actions send a clear message: that businesses should be able to freely discriminate against LGBTQ+ people, and that such discrimination must be allowed to continue. Such blatant biases should be disqualifying for a lifetime seat on the federal judiciary.
And in a letter sent to committee leadership, more than 20 organizations expressed their opposition to St. John’s confirmation because she has “spent her legal career silencing women, attacking LGBTQ+ rights, and cutting off corporate accountability for everyday people.” The organizations argue that she “consistently sides with large corporations over consumers, workers, and ordinary people” and that, despite claiming to be a consumer advocate, she “actually spent years defending big corporations when they hurt people.”
The groups also highlight her anti-DEI record, saying:
St. John actively undermined racial justice, and filed briefs that argued against schools allowing race to factor into admissions considerations in Fair Admissions v. Harvard. She is also involved in litigation that attacked diversity, equity, and inclusion policies in National Association of Scholars v. United States Department of Energy et al and State of New York et al v. National Science Foundation et al.
Astonishing lack of diversity
The nominees who appeared before the committee today lack any professional diversity — despite Grassley’s odd claim at the beginning of the hearing that “Their diverse careers demonstrate a commitment to our Constitution and the rule of law.”
In addition, some notes on demographic diversity:
If St. John is confirmed, Trump will have appointed 11 white judges in the state of Louisiana — where only eight lifetime judges of color have ever served.
If Shepherd is confirmed, Trump will have appointed three white judges in the state of Arkansas — where only two lifetime judges of color have ever served.
Davis and Wolfe would be Trump’s second and third appointees to the Western District of Texas — and all three are white men.
I wrote last month about Trump’s dismal record on judicial diversity, including his refusal to nominate women of color to the federal bench during his second term to date. These nominees continue that appalling trend.
Senators can submit written questions for the record until next Wednesday, February 11 at 5 p.m. They must do so.