My favorite Supreme Court Justice of all time is Clarence Thomas, for his courage in sticking to his principles, despite knowing they are unpopular with the tastemakers of the day, no matter the consequences.
This courage was a deliberate decision by Thomas. In February 2001, he gave a speech at the American Enterprise Institute outlining what he considered the most important trait for a judge to have.
Judges do not cease to be human beings when they go on the bench. In important cases, it is my humble opinion that finding the right answer is often the least difficult problem. Having the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism is often much more difficult.
As Alexander Hamilton wrote in The Federalist No. 78, “It would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution where legislative invasions of it had been instigated by the major voice of the community.” This point is rarely stressed enough.
The trait that Hamilton singles out – fortitude – is fundamental to my philosophy of life, both as a judge and, more fundamentally, as a citizen of this great nation.
Hamilton is right; about how uncommon is the “portion of fortitude” required to be a judge standing against popular or elite sentiment. As Thomas pointed out; judges, even those on the Supreme Court, are still only human.
They have homes that can be targeted, they have spouses whose careers can be sabotaged, they have children whose college applications can be rejected by vengeful administrators. They have siblings who can be targeted by angry bureaucrats.
And no one wants to be ostracized. They still want to be invited to their college alumni dinners, to have their memoirs and treatises on the law published, to have their reputations remain unsullied by partisan character assassins in the media.
It was with this knowledge in hand that the Trump Campaign filed suits requesting that judges, at every level, throw out the votes of entire states, meaning millions of legitimate votes cast in good faith, with no forensically testable and tangible evidence of fraud to justify such a ruling.
Let’s not kid ourselves – we all knew, even as some of us may have desperately hoped otherwise, that no judge would do such a thing. I am not a lawyer, but even I know that an attorney is supposed to make it as easy as possible for the judge hearing his case to rule in his favor. Giuliani and his team made no effort to do so – even Thomas and Alito only agreed to just listen to Texas’ case.
As far as any court is concerned, without any forensically compelling evidence of fraud irreparably tainting an election to undergird it all, everything else – affidavits, statistical anomalies, even videos – can be dismissed as conjecture, supposition and playing with figures, especially when election officials offer explanations disputing or dismissing everything.
Trump could have gotten the evidence (and he still can, while he is still President), but either his legal team misled him that it wasn’t necessary, or he has already thrown in the towel and is simply letting his supporters twist in the wind.
To be clear, Giuliani knows perfectly well that forensic techniques are available to identify and quantify fake ballots. COL. Phil Waldron (USA Ret.) – an information warfare expert – identified ink analysis as a forensic path forward when he was interviewed by Giuliani before members of the Pennsylvania Senate on November 25th;
Rudy Giuliani: (01:20:31)
And have you ever gotten the chance to examine any of these ballots?
Phil Waldron: (01:20:34)
No. That would be part of the forensic process. One suggestion, whoever does the analysis, is using paper and ink analysis of the micro photo spectrometer. That would analyze the ink on those ballots to see if they were mass produced.
To be clear, there’s absolutely no doubt in my mind that Joe Biden’s margins of victory in Georgia, Michigan, Wisconsin and Pennsylvania (and possibly Nevada and Arizona) came from mass produced ballots after deliberately engineered counting delays and stoppages in Democrat controlled urban counties revealed the gap between him and Joe Biden.
You can either mass manufacture votes by having scores of people in a secret location with pens and markers in hand, or have a small number of people with blank ballots, templates and printers.
The latter is more likely simply as a matter of security (reducing chances of sabotage and blackmail), and efficiency (the fact that one printer or copier alone can outproduce hundreds of people with a fraction of the mistakes).
Either way, ink analysis would have revealed whether a ballot was part of a mass production run, or produced by a genuine voter. This is basic questioned document forensics carried out everyday by law enforcement agencies across America – the Secret Service the most prominent among them.
In other words, all the evidence you need is on the ballots themselves. No matching signatures or poll book entries necessary; you just need the ballots, some manpower to identify and sort, and equipment.
But for some weird reason, the pursuit of forensic evidence, even if just to strengthen the President’s legal team’s cases, was never tried, despite COL. Waldron’s direct recommendation to Rudy Giuliani.
So while I could wish that all judges were of the fortitude of Justice Thomas, I don’t blame the judges for needing something more tangible than statistical anomalies and affidavits before setting aside election results. It’s clear from their opinion in the Texas ruling that neither Thomas nor Alito would go that far.
Now imagine; what if the Trump Campaign’s requests had come with a report saying that a testing of a random selection of 10,000 absentee ballots had revealed 723 were marked by a handful of HP OfficeJet printers, and 716 of them were marked for Biden?