The Conservative Defender Contesting the Radical Right Legal Theory That Might Undermine American Democracy

Date:

The Conservative Defender Contesting the Radical Right

  • News by AUN News correspondent
  • Thursday, October 20, 2022.
  • AUN News – ISSN: 2949-8090

Summary:

  • A startling unique signature to the respondents’ brief in the Moore v. Harper case was J. Michael Luttig, who has long been regarded as possibly the most extreme Republican judge in the nation.

  • The well-known Supreme Court litigator Neal Katyal has a strange co-counsel in the former judge.

  • Luttig has a long history of relationships with Chief Justice John Roberts.

  • One of Luttig’s former law clerks, John Eastman, inappropriately persuaded Trump that Pence had the legal authority to postpone and maybe rescind the election.

  • According to Luttig, the lawsuit might threaten how American elections are decided.

One of the most significant issues that the Supreme Court is scheduled to hear this term has a substantial new plaintiff joining the fray. A startling unique signature to the respondents’ brief in the Moore v. Harper case was J. Michael Luttig, who has long been regarded as possibly the most extreme Republican judge in the nation. He has now joined a group of seasoned attorneys and impartial government watchdog organisations battling against a far-right Republican election law challenge, one that some think could spell the end of American democracy as we know it.

The well-known Supreme Court litigator Neal Katyal has a strange co-counsel in the former judge. In the case of various respondents opposing far-right organisations, such as Common Cause and the North Carolina League of Conservation Voters, Katyal is a counsel of record. On December 7th, the Court is due to hear the case. According to Luttig, Moore v. Harper is “without a doubt the most critical case in the history of our nation for American democracy,” which is why he agreed to serve as Katyal’s co-counsel. Legally, it’s the whole game, he replied, using more colloquial language.

Given that Luttig has long-standing relationships with several members of the conservative supermajority on the Court, having such a well-known conservative former justice defend the election-law case may be persuasive. For example, Luttig personally steered Justice Clarence Thomas through his controversial Supreme Court confirmation hearings in 1991. At the time, Luttig worked for George H. W. Bush’s Justice Department as the Assistant Attorney General in the Office of Legal Counsel. After Thomas was confirmed, Luttig was sworn in as the youngest federal appellate judge in the nation at the age of 37 and appointed to the U.S. Court of Appeals for the Fourth Circuit.

Luttig has a long history of relationships with Chief Justice John Roberts. Under the guidance of former White House Counsel Fred Fielding, the two collaborated closely as young attorneys in the Reagan Administration. They then collaborated as attorneys in the George H. W. Bush Department of Justice. George W. Bush later considered both of them concurrently in 2005 for a position on the Supreme Court, which ultimately went to Roberts. Bush gave Luttig another chance the next month but eventually decided to nominate Samuel Alito. As a hard-right standard-bearer on the appeals court who resembled the late Antonin Scalia, Luttig joined Boeing as general counsel before retiring in 2020.

Since then, Luttig’s political position has changed surprisingly. While some might conclude that he has renounced his conservative beliefs, his position more accurately reflects the profound transformation of the Republican Party. A judge who once represented the far right of the legal spectrum now resembles a bygone era of G.O.P. probity and restraint. According to Luttig, he typically wouldn’t get involved in a situation like this. However, according to him, Moore v. Harper is the inevitable result of the unprecedented role he played in the final days of the Trump Presidency.

On the evening of January 4, 2021, Vice President Mike Pence, whom Trump was lobbying not to declare Biden’s Electoral College victory, invited Luttig to weigh in as an urgent outside legal expert. Luttig firmly told the Pence team that the Vice-President had no choice after researching the laws. The Vice-only President’s function, according to the Constitution, is ceremonial. In defiance of Trump’s coup attempt, Luttig emphasised that Pence had to confirm the 2020 Electoral College vote. But when the pressure from Trump increased in the early hours of January 5, Pence’s advisors got in touch with Luttig. While locked up in his Colorado vacation home, they informed him that he needed to tell the American people of his belief that the Constitution required Pence to confirm Biden’s victory in the Electoral College.

In Colorado at the time, Luttig, a retired lawyer in his sixties, told Pence’s attorney, “I don’t even have a job right now. I’m not working right now. My fax machine is not working. Luttig eventually decided to tweet, but he admitted that he had no idea how to do it. He tried to explain to his tech-savvy son over the phone, but he was too busy, so he emailed him Twitter’s online tutorial instead. After being delayed in posting, Luttig’s tweet was eventually published on the Times website and then cited by Pence in his letter to Congress on January 6th, sparking the historical confrontation between the President and Vice-President. Because of his unique position, Luttig’s job was essential. One of Luttig’s former law clerks, John Eastman, inappropriately persuaded Trump that Pence had the legal authority to postpone and maybe rescind the election. A fringe-right interpretation of the Constitution known as the independent-state-legislature thesis served as the foundation for some of Eastman’s rogue legal theories. Its supporters, including Eastman, asserted that state legislatures had the power to disapprove the 2020 election results that the courts and other state authorities had formally recognised. The fact that Trump’s Republican Party controlled the majority of state legislatures at the time wasn’t lost on those involved.

According to Luttig, the former President’s attempt to rig the 2020 election was centred on the independent-state-legislature hypothesis. “I concluded that there was no such doctrine of constitutional interpretation when I advised Vice President Pence on January 6th.” Luttig continued, “Ever since that day, I have felt a duty to the nation to explain the justifications for that judgement. In the Constitution, there is no support for this. In fact, the argument is “antithetical to the Framers’ meaning, the text, and the essential design and architecture of the Constitution,” according to Luttig.

Since then, Luttig has kept raising the alarm in an educated, prudent manner. By publicly speaking before the House select committee looking into the events of January 6th, Luttig shocked many who had written him off as a Republican partisan. He claimed that Trump and his supporters represented a “clear and present danger” to American democracy.

Katyal was one of many who found Luttig’s testimony compelling. Katyal declined to respond since she is the official counsel in Moore v. Harper. However, Katyal claimed on MSNBC in the winter of 2017 that “there is a solid argument that Judge Luttig, by not being on the Supreme Court, accomplished more for our democracy than virtually any incumbent Supreme Court Justice or prior one. It’s an incredible, extraordinary phenomenon. Due to a shared friend, the two attorneys soon started discussing working together on a case-by-case basis. Moore v. Harper provided that chance. Luttig said, “It was meant to be.

According to Luttig, the lawsuit might threaten how American elections are decided. The controversial independent-state-legislature thesis contends that the Constitution’s Elections and Electors sections allow state legislatures absolute control over election administration, which is at issue in Moore v. Harper. The hypothesis is based on a little-noticed concurring opinion authored by three conservative justices, including Thomas, in the Supreme Court’s Bush v. Gore decision in 2000, as I noted last year in this magazine. Until Trump’s associates sought to utilise it in their desperate attempts to rig the 2020 election, it was mostly ignored. The far-right argument contends that state legislatures, among the most partisan in the nation, have virtually unchecked power to gerrymander districts and select their state’s electors for the presidency. The theory’s proponents contend that neither state constitutions nor state courts have the authority to restrain state legislators. Suppose a state legislature finds a presidential election invalid. In that case, they have the power to annul the results of the state’s popular vote and give their chosen candidate the state’s Electoral College votes. The most extreme version of the independent-state-legislature thesis would give partisan majorities in state legislatures practically unfettered control over federal elections if the Supreme Court were to embrace it fully. Only the Supreme Court would have the last say regarding the legality of such legislative power grabs.

Analysis by: Advocacy Unified Network

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