Jurisprudence

Trump Wants One Thing From His SCOTUS Nominee

The president intends to nominate someone who will help him steal the election. We know because he’s told us.

Donald Trump speaks on a stage at a rally as clouds gather at dusk.
Donald Trump speaks during a campaign rally at Cecil Airport on September 24, 2020, in Jacksonville, Florida. Brendan Smialowski/Getty Images

There’s been a lot of hand-wringing over who exactly Donald Trump will nominate to fill Justice Ruth Bader Ginsburg’s seat. He will announce a name on Saturday. But no matter who he appoints, we can be sure of one thing: The president intends to nominate a Supreme Court justice who will help him steal the 2020 presidential election. We know this because he has told us. Over and over again, Trump has explained that he is relying on the federal judiciary to nullify a sufficient number of Democratic votes to hand him a second term. Still skeptical? Let’s review the evidence.

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For months, Trump has previewed his plan to reject the legitimacy of the election if he loses: He will claim that a large number of mail-in ballots are fraudulent and must be nullified. Since these ballots will be disproportionately Democratic, throwing them out may hand him an unearned victory. As my colleague Jeremy Stahl has written, there are several ways that Trump—working in tandem with congressional Republicans, GOP state legislatures, or both—could attempt to nullify Democratic absentee votes.

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Each scheme, however, would require the acquiescence of the Supreme Court. Although there are already five conservatives on SCOTUS, Chief Justice John Roberts seems less likely than his far-right colleagues to support such a brazen power grab. If the court divided 4–4 on Trump’s heist, it would automatically affirm the lower court’s ruling. That means the outcome of the election could turn on the partisan composition of the state Supreme Court or federal appeals court that hears the dispute.

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Trump would much prefer to have SCOTUS in his pocket by Nov. 3. “We’re counting on the federal court system to make it so that we can actually have an evening where we know who wins,” Trump said on Saturday, one day after Ginsburg’s death. “Not where the votes are going to be counted a week later or two weeks later.” In case this statement were too subtle, Trump elaborated on Monday: “We need nine justices,” he told reporters. You need that. With the unsolicited millions of ballots that they’re sending.” Trump continued:

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It’s a scam, it’s a hoax. Everybody knows that and the Democrats know it better than anybody else. So you’re gonna need nine justices up there. I think it’s gonna be very important. Because what they’re doing is a hoax with the ballots. They’re sending out tens of millions of ballots unsolicited. Not with them being asked, but unsolicited. And that’s a hoax. And you’re gonna need to have nine justices. So [confirming a justice] before the election would be a very good thing. … Because what they’re doing is trying to sow confusion and everything else and when they talk about Russia, China, and all these others—they will be able to do something here, because paper ballots are very simple, whether they counterfeit them, forge them, do whatever you want.

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In reality, paper ballots are not “very simple,” but rather extremely secure, and cannot be counterfeited by foreign countries. Moreover, ballots are not being sent out willy-nilly, as Trump implied, but mailed to active, registered voters in some states, pursuant to a duly enacted law.

But set aside the lies and consider the truths in this statement. Why is Trump “gonna need nine justices”? Because he claims a large number of mail-in ballots will be “a scam,” and he’ll need the Supreme Court to invalidate them. Why can’t eight justices be trusted to handle election litigation? “I think having a 4–4 situation is not a good situation,” Trump clarified one day later. The president is plainly cognizant of the possibility that Roberts might side with the liberals to prevent him from stealing a second term. He knows he needs a fifth vote in his corner—and he now has the opportunity to secure one.

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It is no surprise, then, that Trump refused to commit to a peaceful transfer of power on Wednesday. “We’re going to have to see what happens,” he told a reporter. “You know that I’ve been complaining very strongly about the ballots, and the ballots are a disaster.” Trump added: “Get rid of the ballots and … there won’t be a transfer, frankly. There will be a continuation.” On Thursday, he once again refused to say whether he would step down if he loses in November. “We want to make sure the election is honest, and I’m not sure that it can be,” Trump told a reporter. “I don’t know that it can be, with this whole situation, unsolicited ballots.”

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While Trump is often incoherent, it is easy to parse these two statements, particularly in light of the comments that preceded them. If he loses, he will not accept the results. Instead, he will demand that some mail-in ballots—which, again, will skew Democratic this year—be tossed. How many? Enough to ensure “a continuation” of his presidency into a second term.

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There are several different ways Trump could secure the nullification of these ballots. He could urge Republican state legislatures to deny their validity and appoint electors who will vote for Trump in the Electoral College. (This idea is reportedly under active consideration.) He could initiate a Bush v. Gore–like challenge, asking the courts to halt vote-counting before mail-in ballots are tallied and preserving his early lead. Trump’s campaign has already launched a lavishly funded legal battle to make voting more difficult in swing states. It seems increasingly probable that his lawyers will set aim to manipulate vote tabulation as soon as Election Day draws to a close.

In the face of Trump’s many admissions, Republican senators have denied that the president truly intends to remain in office if he loses. They will soon ask us to believe that the president did not choose a Supreme Court nominee on the basis of her willingness to throw him the election. Yet Trump himself has already demonstrated that he seeks a nominee who will do exactly that. It does not matter what this individual avows during her hearing. We will all know the real reason Trump rushed her onto the bench.

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