A Very Fragile Thing

According to my wife. Sharon, I’ve been on a busman’s holiday since November 3rd.

Well, not a holiday exactly, since as a retired litigator I don’t have official vacations. I have, however, spent countless recent hours, with the help of democracydocket.com, reading complaints, answers, petitions for injunctions, motions to dismiss, briefs, affidavits, orders, decisions, voluntary withdrawals, and appellate papers and opinions — all concerning President Trump’s unending, fruitless, and baseless legal challenges to his election loss. And I didn’t even get a single billable hour out of any of it!

In addition, I listened to four hours of oral argument starring Rudy Giuliani, which, if I had any lingering doubt, convinced me that this once formidable attorney was no longer a capable advocate. Starting a presentation with an impassioned tale of a nationwide fraud conspiracy and then backtracking to admit he wasn’t presenting a fraud case? Arguing due process violations and not understanding the judge’s question about the standard of review? Most law students taking Con Law 101 could have done a better job.

I also read daily election reports and election litigation analyses in the liberal mainstream media — the New York Times and Washington Post, to which I subscribe. But I didn’t confine myself to a liberal bubble or silo, since I’ve also been reading factual analyses and opinion pieces in the Epoch Times — quite the opposite of either liberal or mainstream; think Breitbart, Limbaugh, or Hannity. Why? I’m simply following the rabbinic dictum of da ma she-tashiv (Avot 2:14) — understand your opponents’ arguments to better know how to respond.

All this research supports, unsurprisingly, the unanimous conclusion of numerous judges — appointed by both Democrats and Republicans (including Trump) — that there’s no there there. Over and over again they dismissed the Republicans’ cases, holding that many plaintiffs had no standing, including Article III standing (that is, they weren’t appropriate plaintiffs as required by Article III of the Constitution and therefore didn’t have the right to bring the action). They also found that the relief asked for was either moot or outside the powers of the judiciary, the cases were brought too late or in the wrong court, or the acts that supposedly violated state election laws or the Constitution (either state or federal) did no such thing.

Dismissing many cases for lack of Article III standing, which was the sole basis of the Supreme Court’s three-sentence dismissal of Texas’s “original jurisdiction” action, was touched with irony. Strict use of that doctrine isn’t some liberal judicial theory promulgated by supposedly activist judges. Rather, it flowed from the pen of Justice Antonin Scalia, Trump’s Supreme Court justice par excellence, who was, as Professor Stephen I. Vladeck noted, “the most ardent and vocal defender among modern Justices of rigid judicial enforcement of [the strict] requirements [of Article III standing].”

But dismissed cases went beyond legal procedural analyses. Unlike the false picture painted by many Trump supporters, there were also cases in which both state as well as federal judges adjudicated the specific fraud and illegality claims presented, and found, after hearing the details, that they lacked merit. These cases were dismissed because the supporting testimony was hearsay (or in some cases double or triple hearsay), inadmissible, not credible, not in accordance with other known facts, not probative of improper conduct, and/or based on alleged expert reports filed by non-experts and often including junk science.

Indeed, in its Supreme Court papers, Texas bizarrely claimed that the odds of President-elect Biden winning the four states being sued were “less than one in a quadrillion to the fourth power.” (1 with 60 zeroes after it.) Complete nonsense . I’m surprised they didn’t say one in a gazillion as little kids do, though kids don’t file pleadings with the Supreme Court.

The election and its aftermath have been difficult. But here are four important takeaways.

First, we should be proud of our citizenry and democracy. Over 160 million voters cast ballots — more than in any other presidential election and in a higher percentage of eligible voters (66.2%) than in any year since 1900. And this in the midst of a pandemic. I know my grandmother, an immigrant who never missed voting in an election, would be proud.

Second, we should be angry at the unconstitutional and un-American ideas that Trump and so many elected Republican officials tried to foist on the American people: that our votes don’t count, that state legislatures should ignore the popular vote and appoint electors, that courts should disenfranchise millions of voters by stopping vote counting and reversing vote certifications. Demagoguery, not democracy.

These outrageous ideas did not arise only after the election. Rather, almost from the beginning of the campaign, Trump and his lap dogs like Lindsey Graham pontificated, in violation of everything our country holds dear, that the Supreme Court would decide the 2020 election. But as Judge Stephanos Bibas of the Third Circuit — a Federalist Society member nominated to his position by Trump — wrote in dismissing a case seeking to disenfranchise Pennsylvania’s voters: “Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.”

I think the Supreme Court, in the two cases before it, also tried to get this message across in its brusque and immediately docketed dismissal orders — the first, “the application is denied,” was issued only 34 minutes after the last brief was filed. Their terseness, tone, and timing emphasized the justices’ recognition that the responsibility to decide elections rests with the people and not SCOTUS, and that the people had spoken.

Third, we should applaud those Republican judges and (sadly all-too-few) officials, many Trump supporters, who exemplified the best in American leadership in upholding the law and the Constitution, notwithstanding their personal political preferences. These gallant women and men refused to be complicit in attempts to overturn state popular vote results in the face of personal insults, political attacks, and threats of physical violence against them and their families. True profiles in courage.

The fourth takeaway concerns character and values. As I’ve written previously, I’ve been deeply disappointed over the past four years by those members of my Orthodox community who insisted that they don’t care about the president’s character or manner of speaking; they care only about his policies and what he’s allegedly accomplished. This election should have taught us the error of such an attitude; that the values and character of our political leadership are of critical importance because values govern behavior, and Trump’s lack of values led to his immoral post-election behavior, including his never-ending litigation, lies, and corrupt pardons of unrepentant murderers and of his associates and family.

All of us are confronted at times with complex questions about how to behave in difficult situations. That’s not the case here. Rather, I’m reminded of “All I Really Need to Know I Learned in Kindergarten,” a small, immensely popular book of essays that Robert Fulghum, a Unitarian minister, wrote in 1986. In its lead essay, Fulghum makes the simple point that basic values, good character traits, and the right way to act are learned not only in universities — nor, I add, only in yeshivot, shuls, real estate executive suites, or reality television studios. Rather, they’re often learned in the kindergarten playground — share your toys, clean up your own mess, say you’re sorry, play fair.

Two similar kindergarten-learned lessons — tell the truth and don’t be a sore loser — are the ones evoked by this election. No one should be surprised that a narcissistic president never learned those two basic life lessons, either in kindergarten or anywhere else. No one should be surprised that when confronted with losing, he had no moral foundation to accept his loss, and the truth, with grace and dignity. Having elected a leader like this, we should not be surprised that he’s attempting to cling to power like a tin-pot dictator, debasing his office and our country to the very end.

Starting on January 20, 2021, America has an opportunity to emerge from this self-inflicted nightmare; for decency to prevail. I pray that we not squander it.

About the Author
Joseph C. Kaplan, a regular columnist for the Jewish Standard, is a long-time resident of Teaneck. His work has also appeared in various publications including Sh’ma magazine, The New York Jewish Week, The Baltimore Jewish Times, and, as letters to the editor, The New York Times.
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