Trump Judicial Nominees Cite Justice Jackson to Deflect 2020 Election Question

During a Senate Judiciary Committee hearing, Trump’s appellate nominees Ben Flowers and Matthew Schwartz declined to name election winner, calling it “inappropriate to comment on outcome of any election.” Both cited Justice Ketanji Brown Jackson’s 2022 written refusal. Chairman Chuck Grassley opened with poster of Jackson and noted dozens of Trump’s judicial picks have avoided question.

Trump Court Picks Now Cite Justice Jackson on 2020 Election (1)HuffPost

Justice Jackson, then a D.C. Circuit judge, declined to discuss the 2020 result while bound by judicial Code of Conduct, which advises judges to avoid appearances. Code applies to judges; its guidance for nominees is disputed. 2020 election certified for Joe Biden was challenged by President Donald Trump and culminated in Jan. 6 Capitol attack.

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Grassley argued judicial code “provides guidance to judges and nominees,” and said Jackson’s answer validates the nominees’ refusal to name a winner. Slattery said code is meant to guide judges and nominees. Blumenthal rebuked the nominees as not sitting judges and called their rehearsed answers a mockery of committee. Durbin described GOP’s stance as embarrassed and warned recordings could haunt them. Flowers and Schwartz disclosed they prepared their testimony with White House Counsel’s Office.

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Democrats argue the nominees’ silence on the election outcome raises doubts about their willingness to rule against Trump. Blumenthal and Durbin say question tests judicial independence, not partisan loyalty. Legal scholars, including Tobias, note Code of Conduct is advisory for nominees, making GOP reliance on Jackson’s answer appear disingenuous. Lee’s claim canon applies equally to nominees underscores an intra-Republican split over code’s reach.

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Grassley’s office says the code “clearly states” it guides both judges and nominees, while scholars argue its binding force ends with appointment. The dispute also hinges on whether Jackson’s questionnaire asked about “skepticism” of the 2016 result or “comment” on the 2020 outcome, adding ambiguity to the precedent.

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• “Of course, none of the nominees counted ballots.” — Chuck Grassley, Senate Judiciary Committee Chair

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• “Justice Jackson said it would be inappropriate for her as a sitting federal judge,” — Richard Blumenthal, Senator (D-CT)

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• “I think the answer that Justice Jackson gave is the only legally and ethically correct answer,” — Matthew Schwartz, 2nd Circuit nominee

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• “They’re embarrassed. They know that, at the end, there’s going to be a composite video that shows these painful moments of those people trying to avoid saying the truth, and everyone knows it,” — Dick Durbin, Senator (D-IL)

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The committee will keep questioning nominees on the election-outcome issue in upcoming hearings. Democrats plan to press ethical implications of Jackson’s citation, while Republicans are expected to argue the code permits such deferral, a dispute that could shape Senate votes on pending appellate appointments.

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