Justice Department Seemed Wholly Unprepared For Justice Sotomayor's OBVIOUS Questions

Once again, Trump lawyers seem surprised Court is more challenging than Fox and Friends.

Justice Sonia Sotomayor

As we discussed when previewing Husted v. Randolph Institute, the Ohio voter purge case argued in front of the Supreme Court on Wednesday, the Department of Justice radically changed its position on the case after Donald Trump won.

Anybody could expect that the Justice Department’s radical change of position would be at issue during oral arguments, especially given that U.S. Solicitor General Noel Francisco was invited to argue before the Court, along with Ohio Solicitor General Eric Murphy, to defend the state’s scheme of purging voters who fail to vote in two consecutive elections. But somehow, when Justice Sonia Sotomayor asked the government to explain this very obvious problem with the Justice Department’s position — namely that it changed the long held DOJ interpretation of the National Voter Registration Act that it’s held since 1993 — Francisco seemed unprepared to offer a clear answer.

The National Law Journal reports:

Justice Sonia Sotomayor confronted U.S. Solicitor General Noel Francisco as to why his office broke with solicitors general of both political parties for 24 years who said using failure-to-vote as a trigger to purge voters from state rolls violated the National Voter Registration Act.

… “Everybody but you today come in and say the act before the clarification said something different. Seems quite unusual that your office would change its position so dramatically.”

Francisco struggled initially to respond to Sotomayor’s question, which marked the first instance a justice has questioned President Donald Trump’s Justice Department about the abandonment of a predecessor’s litigating position.

Look, oral arguments don’t really matter and the cases do not turn just because Solicitors General fumble through their arguments.

But it feels like, once again, the Trump administration failed at some basic level of preparation. Everybody in the damn building knew that either Sotomayor or Ginsburg was going to HAMMER the DOJ for reversing itself on 25 years of its own precedent, just because Trump and Attorney General Jeff Sessions don’t like voting rights. Everybody knows that the Justice Department’s many reversals of Obama-era positions lays bare that they’re in it for political reasons, not legal ones.

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HOW ARE THEY NOT PREPARED TO ANSWER THAT CHARGE?

It was only when Justice Ginsburg got at him that Francisco found his footing:

Justice Ruth Bader Ginsburg, apparently not satisfied, also pressed Francisco. “Was it the position of the United States—I thought it was, but you correct me if I’m wrong—I thought that the United States was taking the position, consistently, that nonvoting was not a reliable indicator of residence change.”

Francisco replied that Ginsburg was “partly correct.” The Justice Department, he said, had understood the statute to include a “reliable evidence” requirement and nonvoting was not that kind of reliable evidence.

“Our current position is that when you look at the statute, there’s simply no way to read into it a reliable evidence requirement that’s found nowhere in the text and that Congress, in fact, rejected,” he said.

That’s a weak answer, but it’s all that the federal government has.

“Why did you change your position?”

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“Uhh… we looked at the statute and, uhh… determined that none of our predecessors in the last 25 years could read.”

The betting money is still that the Ohio purge plan will be allowed by the Supreme Court, probably 5-4. Conservatives like the outcome where fewer people vote, while progressives like the outcome where more people vote, and nothing that happened at oral arguments is likely to change that outcome-driven divide.

As the Trump administration has consistently proven, looking craven and stupid is not a bar to success.

Sotomayor Confronts DOJ’s Noel Francisco About Switched-Up Position in Ohio Voter Case [National Law Journal]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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