Judicial nominees stick to their new script that Biden won in 2020 “as a matter of law”
In responses to written questions, district court nominees continued to be weird.
The Senate Judiciary Committee on Monday afternoon posted responses to written questions for the record from five more of Trump’s judicial nominees — Daniel Traynor for the Eighth Circuit, Kasdin Mitchell for the Northern District of Texas, Angela Colmenero for the Southern District of Texas, Michael Martin for the Eastern District of Michigan, and Antonio Pozos for the Eastern District of Pennsylvania.
In their responses, nominees mostly dodged questions related to the January 6 attack on the U.S. Capitol, and many of them repeated the bizarre responses they provided during their June 10 hearing — that President Joe Biden merely won the 2020 election “as a matter of law.” In written answers, Daniel Traynor repeatedly said that Biden was “certified as the winner,” while the four district court nominees clung to what Senator Richard Blumenthal referred to as a “new script.”
During the confirmation hearing, Michigan nominee Michael Martin stated that “as a matter of law, Joe Biden was the winner of the 2020 election.” When asked who got more votes,” he said that “my focus as a judicial nominee is on the law, and as a matter of law, Joe Biden won the 2020 election.” He was only willing to say that Biden received more Electoral College votes. Colmenero and Pozos agreed with Martin’s responses, while Mitchell was not asked any questions about it at the hearing.
Martin’s responses were significant. Michigan Senators Gary Peters and Elissa Slotkin, both Democrats, claimed that their support for Martin was due to his independence and their expectation that he would clearly state Biden won in 2020. Advocates believe — as do I — that he failed to do so. Still, following that hearing, Senator Peters told me (via his office) that “Mr. Martin reiterated in our meetings, as well as at today’s hearing, that Joe Biden won the 2020 election, reassuring me that he will exercise independent judgment.”
There is clearly disagreement about what Martin said and whether it goes far enough — or whether this “new script” is just the latest, carefully crafted response that the White House finds acceptable for their nominees to say in public.
In written questions for the record, Senator Chris Coons asked Martin what he meant during the hearing when he stated that Biden won “as a matter of law.” Martin only responded that “It means pursuant to the procedures set forth in the Constitution.” He used the phrase “as a matter of law” seven times in his responses to written questions. Senator Coons also asked him this: “If Congress certifies a candidate as being the winner of a presidential election, does that mean that the candidate won the election? If not, what does it mean?” Martin responded that “It means that the candidate received a majority of the electoral college votes and therefore became the President.”
Mitchell said she agreed with her fellow nominees’ responses during the hearing that Biden won in 2020 “as a matter of law.” When asked what this means, she said that “Article I, Section 1 of the United States Constitution prescribes the process by which a candidate ‘shall be the President’ following an election.” She further stated:
Under the United States Constitution, a candidate “shall be the President” of the United States once certain legal requirements have been satisfied. To the extent the phrase “winning the election” means something other than winning as a matter of the legal procedures set forth in the Constitution, it would not be appropriate for me as a judicial nominee to comment on that characterization. See Code of Conduct for United States Judges, Canon 5.
Colmenero responded similarly, saying that “The Constitution outlines the legal framework for electing the President and certifying the results of an election.” When Senator Cory Booker asked her whether Joe Biden won in 2020, Colmenero combined multiple methods of dodging this question, writing that “As a matter of law, Joe Biden was the winner of the 2020 election. He was certified as the winner of the 2020 election and served as the 46th President of the United States.”
Pozos provided very similar answers. “Under the process specified by the Constitution and federal law, Congress certified Joseph R. Biden as the winner of the 2020 election, and he served as the 46th President of the United States. Accordingly, as a matter of law, he was elected to the office of the President in 2020,” he wrote in response to one question.
During the hearing, Senator Blumenthal expressed his frustration with how nominees continued to answer these questions. “If [Trump] were not putting his thumb on the truth, you’d be willing to state it here, and you are putting loyalty to him above fidelity to the law and the Constitution,” he said. “The law doesn’t dictate the results of an election. The people do.”
While nominees are generally willing to denounce violence, including against law enforcement, they still often refer to January 6 as “violence and trespass” that just happened to occur in the nation’s capital that day. They concede that officers were attacked, but not that the U.S. Capitol was.
“The characterization of the violence and trespass at the U.S. Capitol on January 6, 2021, is a matter of political debate, as is the legal import of the President’s pardons,” Mitchell wrote in one of her written responses. “Trespass and violence occurred at the U.S. Capitol on January 6, 2021, and I categorically condemn violence against law enforcement and political actors. The characterization of the events at the Capitol on January 6, 2021 is a matter of significant political debate,” Colmenero said.
“As I stated in my testimony, I understand from public reporting that trespass and violence occurred at the Capitol, and I denounce violence against law enforcement and participants in the political process,” Pozos said in response to a question from Ranking Member Dick Durbin. “As a judicial nominee, however, it would not be appropriate for me to comment on matters of political controversy, and which are or may be the subject of pending litigation.”
I will have more coverage of nominees’ responses to written questions in the coming days.