Trump lawyers petitioning supreme court have close ties to Brett Kavanaugh
Trump campaign lawyers who have asked the supreme court to intervene in Pennsylvania’s vote count have close ties to Brett Kavanaugh, the justice who is expected to have a decisive vote in any upcoming election-related rulings.
Justin Clark, a senior lawyer for Donald Trump’s campaign, helped shepherd Kavanaugh’s controversial 2018 confirmation through the Senate in his previous role as White House congressional liaison.
Another lawyer, William Consovoy, the litigator who filed the supreme court challenge on behalf of the Trump campaign, helped to bankroll a highprofile Federalist Society dinner in Kavanaugh’s honour in 2019.
It is far from clear whether the Trump campaign’s bid before the US supreme court – which is challenging Pennsylvania’s inclusion of mail-in ballots received after 3 November – will lead to any changes in the state’s ultimate vote count. But the relationships between the campaign lawyers and Kavanaugh are an example of how conservative lawyers and jurists who have been appointed to the highest court have especially close political ties.
Activist Chris Kang, who serves as chief counsel for Demand Justice, a progressive group that has said it is trying to restore federal courts’ “legitimacy”, said the relationships between Consovoy, Clark and Kavanaugh, were “alarming”.
“It is very troubling. This kind of thing is more commonplace these days, but I don’t think it makes it any less concerning,” Kang said. “It’s a very insular world of supreme court justices and the lawyers who argue in front of them. It does breed a backscratching culture that is very problematic.”
The Federalist Society lies at the heart of the conservative bar, and has played what critics call an outsized role in advising the White House on the nomination of judges and justices.
The lawyers who are part of the Federalist Society, some of whom become judges, share a strict conservative view of the law which, in turn, has helped to propel Republican political causes, like restricting voting rights and opposition to environmental regulations.
One staunch critic of the group, the Rhode Island Democratic senator Sheldon Whitehouse, has said that nearly 90% of Trump’s appellate judges, as well as most of the supreme court’s conservative justices, are members of the Federalist Society, which is funded entirely by anonymous conservative donors and corporations.
Rebecca Green, a law professor at William & Mary Law School, said it was impossible to predict which of the myriad legal challenges that have been launched by the Trump campaign in close battleground states had the potential to become “serious”.
“All the litigation will melt away unless there is a path to excluding or counting enough ballots to make a difference,” Green said. In other words, the only legal challenge to the election that might be called “serious” is one that would affect enough votes to make a difference in the winner of an election.
The case of Pennsylvania is centered on the Pennsylvania state supreme court’s decision before the election to extend the deadline by which absentee ballots, postmarked by 3 November, could be received and counted. The change was made to accommodate well-documented delays in the US Postal Service in the run-up to the election.
While Republicans argued that it was the state legislature’s role to make the rules governing elections, the US supreme court decided before the election not to weigh in on the case. Now, the Trump campaign is making another bid for the US supreme court to get involved.
Green said the case would only be significant in the 2020 election if those ballots – received after 3 November – proved to be decisive.
Green said she believed it was important for justices to be “transparent” about relationships with lawyers arguing cases before the court, but did not believe “favoritism” played a huge part in how justices rule.
Chief Justice John Roberts, she added, would be hellbent on keeping the court above the political fray.
In choosing William Consovoy, the Trump campaign’s chief litigator before the high court, the campaign has chosen a lawyer who argued in one of the most controversial decision in recent years: Shelby County v Holder. The landmark 2013 decision, which was decided on a 5-4 vote on political lines, struck down key provisions in the 1965 Voting Rights Act, which outlawed discriminatory voting practices in mostly southern US states.
Demand Justice, the progressive activist group, targeted Consovoy’s firm and other top law firms in a 2019 ad campaign which pointed to their sponsorship of the Federalist Society’s black tie annual dinner, in which Kavanaugh was given a standing ovation.
The activists accused Consovoy and others of “rebuilding” Kavanaugh’s image through their support of the Federalist Society. At the time, Demand Justice said it was seeking to hold accountable those individuals who had helped to rehabilitate a “sexual predator”, a reference to allegations that Kavanaugh sexually assaulted a classmate when he was in high school. Kavanaugh denied the assault occurred.
Consovoy has been involved in several high-profile disputes involving the Trump administration as well as the president personally. He and his firm have, according to a recent New York Times profile, argued against affirmative action at Harvard and for a nearban on abortion in the state of Georgia. He has also argued on Trump’s behalf in calls to keep the president’s tax records private. He has separately argued that Trump could not be prosecuted while in office.
Consovoy has also served as a clerk to the supreme court justice Clarence Thomas, who will be hearing the Pennsylvania case if the court decides to accept the case.