Conservative Party Challenges Right-Wing Constitutional Theory Could Destroy American Democracy. | Media Pyro


A new plaintiff has joined one of the most important cases scheduled to be heard by the Supreme Court this term. The defendants in the case of Moore v. Harper issued a brief today that included a surprising new signing: J. Michael Luttig, who has been known for years as the most conservative Republican judge in the country. Now, he has joined a coalition of veteran lawyers and non-government watchdog groups fighting a civil-right election law challenge. a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a-a critics say it’s hard to stop in American democracy as we know it. .

The former judge was a co-consultant with Neal Katyal, the famous Supreme Court justice. Katyal is counsel in the case for several defendants, including Common Cause and the North Carolina Conservative Voters Association, which opposes right-wing groups. The case will be heard by the Court on December 7. Luttig told me that he had signed on Katyal as co-counsel because he was referring to Moore v. Harper is “without question the most important issue in the history of our nation for American democracy.” In a tone of voice, he said, “Legally, it’s the whole ball game.”

A prominent former justice’s plea to oppose an election-law challenge could weigh heavily on the Court, many of whom have ties to Luttig that stretch back decades. Justice Clarence Thomas, for example, was defended through his Supreme Court confirmation hearings by Luttig in 1991. At the time, Luttig was an Assistant Attorney General in the Office of the General Counsel. Acting in the Justice Department of George HW Bush. After Thomas’s confirmation, Luttig was sworn in to a seat on the United States Court of Appeals for the Fourth Circuit at the age of thirty-seven; he became, at the time, a federal appeals judge.

Luttig’s ties to Chief Justice John Roberts go back several years. The two worked together in the Reagan Administration as junior lawyers, under the tutelage of then-White House counsel Fred Fielding, and also worked together as lawyers in George HW Bush’s Justice Department. Later, in 2005, George W. Bush considered them for a seat on the Supreme Court, which eventually went to Roberts. A month later, Bush considered Luttig again for the Supreme Court seat but chose Samuel Alito instead. After establishing his reputation as a hard-line standard bearer in the form of the late Antonin Scalia on the appeals court, Luttig became Boeing’s general counsel; in 2020, he will retire.

The evolution of Luttig’s political career since then has been remarkable. Although some say he has abandoned his partisan views, his position is a reflection of the great changes that have taken place in the Republican Party. The judge who once stood for the far-right in constitutional law now feels like a return to the old age of GOP loyalty and restraint. Of course, Luttig told me, he would never be involved in such a case. But Moore v. Harper, as he explained, was the result of the extraordinary behind-the-scenes work he played in the final Götterdämmerung days of the Trump Presidency.

On the evening of January 4, 2021, Luttig was asked to sit outside the legal expert against Vice President Mike Pence, who urged Trump not to ratify Biden’s Electoral College victory. Luttig strongly told the Pence team that the Vice President had no choice. The Constitution clearly stated that the role of the Vice President is religious. Luttig said Pence should approve the 2020 Electoral College vote, as opposed to Trump’s attempted coup. But, in the early hours of January 5th, as Trump’s pressure continued to mount, Pence’s advisers contacted Luttig. They told him, while he was at his vacation home in Colorado, that he should tell the American people he thinks, under the Constitution, Pence must certify Biden’s Electoral College victory. .

A 66-year-old retired attorney based in Colorado at the time, Luttig recalled telling Pence’s attorney, “I don’t have a job right now. I’m unemployed. . . . I don’t have a fax machine. ” In the end, Luttig decided he would tweet, but he told me he didn’t know how to do that. He called his son, who works in technology, but he was too busy to explain. , so he posted Twitter’s online advice. Luttig’s tweet, at the time it was posted, was published on The seasons Website, later mentioned by Pence in his letter to Congress on January 6th, leading to the former position between the President and the Vice President. Luttig’s work is important because of its uniqueness. The lawyer who falsely told Trump that Pence had the legal authority to delay and possibly overturn the election was one of Luttig’s former law clerks: John Eastman. Eastman’s tyrannical legal theory is based, in part, on a right-wing reading of the Constitution known as the private-state-law theory. Its supporters, including Eastman, said the state legislature’s right to nullify the results of the 2020 election was upheld by other state officials and the courts. It was not lost on those who took part at the time that most of the governor’s councils were controlled by the Republican Party of Trump.

“The political-legal independence concept is the main focus of the former President’s effort to push the 2020 election,” Luttig told me. “In an advisory to Vice President Pence on January 6th, I concluded that there is no basis for constitutional interpretation.” Luttig added, “From that day on, I believed I had an obligation to the country to explain the reasons for that decision. In other words, there was absolutely no support in the Constitution.” In fact, says Luttig, “the concept is at variance with the intent of the Framers, the text, and the original design and architecture of the Constitution.”

From then on, Luttig, wisely and wisely, kept sounding the alarm. Last June, Luttig stunned many who dismissed him as a Republican by testifying before the House Select Committee investigating the Jan. 6 riots in which he said Trump and his supporters are “slight and dangerous now” to American democracy.

Among those impressed by Luttig’s presentation was Katyal. As stated in Moore v. Harper, Katyal did not speak. But, last winter, Katyal said on MSNBC, “Judge Luttig has made a good argument that, by not being on the Supreme Court, he has done more for our democracy than most of sitting or former Supreme Court Justices. It’s amazing, it’s amazing. The two attorneys have always been friends and started talking about working together if the right case came up. Moore v . Harper that place. “Of course,” Luttig told me.

As Luttig explained, the case could affect the way US elections are decided. Moore v. Harper is another expression of the constitutional-independence theory, which states that the Elections and Electors clauses of the Constitution give state legislatures almost the sole power to conduct elections. As I wrote last year in this magazine, the concept is contained in a unanimous opinion written by three Justices, including Thomas, in the Bush v. Gore by the Supreme Court in 2000. It was largely ignored until the Trump era. The allies tried to use it in their power to push the 2020 election. Supporters of the right-wing theory say that the state legislatures, which are among the most diverse parties in the country , cannot control the power to control the regions, and choose the electors of the state in the Presidential elections.


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