Michigan senators dramatically lower the bar for lifetime judicial nominees
Michael Martin’s responses yesterday weren’t good. Still, Senator Peters said he was “reassured” by them.
Earlier this week, Senators Gary Peters and Elissa Slotkin, both Democrats from Michigan, announced that they would allow Trump’s nominee for the Eastern District of Michigan to proceed. Though they could have blocked Michael Martin’s nomination — or taken more time to review his record — through the Senate Judiciary Committee’s blue slip process, the senators decided that they had seen enough.
Senator Peters, who is retiring, said Martin “has the experience and integrity necessary to serve on the federal bench.” He claimed that Martin “made it clear that he will exercise independent, forward thinking judgment” and that “he has the temperament and character necessary to impartially serve Michiganders and the American people.”
Senator Slotkin has opposed the confirmation of every Trump 2.0 judicial nominee to date and is not up for reelection until 2030. Inexplicably, she is now facilitating the Senate’s consideration of a Trump judicial nominee in her state.
“I take this responsibility very seriously,” Senator Slotkin said in the Monday statement. “I met with Mr. Martin, a 20-year career prosecutor who has worked through both Democratic and Republican Administrations and asked him direct questions that speak directly to whether he will uphold our democratic process, regardless of external pressure. From making clear Joe Biden won the 2020 election, to the attack on the Capitol on January 6th, to being clear that President Trump can’t run for a third term, these answers were important factors for me, and fundamentally different from President Trump’s judicial nominees to date. I look forward to Mr. Martin conveying the same during his confirmation hearing, and to his service on the federal bench if confirmed.”
At Martin’s confirmation hearing before the Senate Judiciary Committee yesterday, Senator Richard Blumenthal asked him about the 2020 election and the January 6 attack on the Capitol. While Senator Slotkin seemed confident that Martin would say, without qualification, that “Joe Biden won the 2020 election,” his responses were not that straightforward.
When Martin was asked who won the 2020 election, he said 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.” When asked who got more Electoral College votes, he said that “Joe Biden received more Electoral College votes.” And when asked whether the Capitol was attacked on January 6, he said that “as part of my work as an assistant United States Attorney, I had the opportunity to look at pictures and videos from that day, and what I saw in those was that officers, law enforcement officers, were attacked, and the building was damaged and vandalized.”
Martin’s responses sort of sound better than saying “Joe Biden was certified as the winner” — right? But he was actually saying the same thing. He would not say that President Biden received more popular votes than Trump, just that “as a matter of law” he won the election and received more Electoral College votes. This mirrors what other judicial nominees have said.
For example, in his recent responses to written questions for the record, Florida judicial nominee Jeffrey Kuntz wrote that “Under our Constitution, the person that wins a presidential election is the person certified as the winner of the Electoral College. In 2020, that person was Joseph R. Biden, Jr., the 46th President of the United States.” In his written responses, John Marck of Texas wrote that “When Congress certifies a candidate as being the winner of a presidential election, it means Congress has formally counted and certified the electoral votes submitted by the states and confirmed a majority winner. The candidate certified as the winner becomes President of the United States.”
Martin’s assertion that Biden won “as a matter of law” is perhaps a reference not to a statute but to the U.S. Constitution, which established the Electoral College. His willingness to say that Biden received more Electoral College votes in 2020 — and his refusal to say that Biden won more (popular) votes than Trump — is what other nominees have been saying since last year: Biden was certified as the winner, based solely on legal procedure, and just happened to become president. Martin could also be saying that, following scores of unsuccessful lawsuits seeking to overturn the results of the 2020 election, Joe Biden was allowed to assume the presidency — as a matter of law and the outcome of legal challenges (but not necessarily as a matter of fact).
Note that Martin also did not say “Yes, the Capitol was attacked on January 6.” He said that law enforcement officers were attacked and that the building was “damaged and vandalized.” Saying that the U.S. Capitol happened to be damaged that day is not the same as truthfully stating that insurrectionists attacked the building in an attempt to stop the counting of votes.
When I asked what Senators Slotkin and Peters thought of Martin’s performance at the hearing and whether they were satisfied with his responses, a spokesperson for Senator Slotkin told me that “As of now, we do not have anything to add.” Senator Peters’ office offered this response from the senator: “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.”
That is not what many people took away from Martin’s responses. Senator Blumenthal called it “a new script, a new pre-negotiated effort to thread the needle, avoid the question, because the president refuses to acknowledge that he lost. He declines to accept the truth that he lost the 2020 election. You are protecting the lie by failing to acknowledge the truth, and it all goes to your independence. If you’re unwilling to show us that you’re independent of the president at this early stage of your service, you disqualify yourself as judicial nominees.”
“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,” Senator Blumenthal said. “The law doesn’t dictate the results of an election. The people do.”
Josh Orton, president of Demand Justice, called out this “new script” in a statement following the hearing. He said the White House “knows that peddling the Big Lie is a political loser. So it’s now directing its judicial nominees to use bizarre qualifiers like ‘by law’ Joe Biden won the 2020 election.”
“If a judicial nominee can’t say those facts — outright — they can’t be independent from Trump,” Orton said. “They should not have blue-slips returned on their behalf by Senate Democrats for their nominations. And they should absolutely not be given lifetime seats on the federal judiciary.”
Rachel Rossi, president of Alliance for Justice, warned that “Senators must remain vigilant to block loyalist judicial nominees who seek to quietly sneak through the confirmation process. Martin only revised the script used by nominees before him, providing updated but similar canned answers on democracy.” Alliance for Justice also sent a letter to senators highlighting several troubling parts of Martin’s record, which they said raise “dire concerns about Martin’s ability to serve as an independent judge for a lifetime appointment, free from harmful biases, and committed to fairness and equal justice for all, and not just Trump.”
But I want to return to what Senator Peters said: “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.” Setting aside what Martin actually stated at yesterday’s hearing, this is a deeply disturbing standard to set for individuals who have been nominated to lifetime federal judgeships. Senator Peters’ belief that affirming a simple truth is enough to demonstrate independence (from Trump) establishes a very low bar for who he would likely support. And given that other nominees at yesterday’s hearing answered the same way as Martin, does that mean he’ll support them, too?
“The nominee admitted Joe Biden won in 2020, so I’m absolutely convinced they’ll be a fair and independent judge” cannot be the new standard for defining acceptable judicial nominees — especially when that’s not what the nominee said.