The Senate Judiciary Committee held a hearing on Justin Smith’s nomination to be a judge on the Eighth Circuit Court of Appeals. Smith is a committed Trump loyalist who has been Trump’s personal lawyer for several years. He was part of the legal team that argued for his immunity from prosecution for his efforts to undo the 2020 presidential election, And he is currently representing him in an appeal of the E. Jean Carroll defamation / sexual abuse case.
Like other Trump judicial nominees, Smith refused to acknowledge that Trump truly lost the 2020 election. He repeated the same canned response we have heard from Trump’s sycophants so many times now: He said that Biden was “certified” the winner of the electoral vote, and he refused to answer who won the popular vote.
Democratic senators were ready for this nonsense.
Ranking Democrat Dick Durbin noted:
If you took an eighth grader from Kansas, Missouri, and Iowa, and Illinois, and said “Who won the popular vote in the 2020 election?” and they submitted an explanation of the Electoral College, you couldn’t give them a passing grade.
Sen. Richard Blumenthal didn’t mince words:
You’re going to give me the same rote, rehearsed answer, which frankly makes you look ridiculous, if not pathetic.
Blumenthal tied the issue to the need for judges to be independent:
If you don’t have the courage now to state your independent judgment on a clear factual issue, I don’t know how the United States Senate can confirm you as a member of one of the most powerful courts in the country.
Sen. Peter Welch expressed the same concern:
I share the apprehension that Senator Blumenthal has that the nominees who come in here can’t say the obvious: that you win some elections, you lose some elections. And you as a judge still cannot just say plainly that Biden won and Trump lost.
Sen. Mazie Hirono brought up a piece Smith wrote in 2024, in which he said:
Republican attorneys general are critical in the fight against the radical left. We need true conservatives to defeat the abortion industrial complex, the lawlessness plaguing blue cities, and the woke ideology invading our schools.
Hirono asked a simple question: How does he define “woke?” Smith refused to answer.
Hirono also focused on Smith’s being Trump’s personal lawyer and asked if he would recuse himself from a case involving Trump’s personal interests. Smith would not make that commitment. Hirono pointed out that the judicial ethical canons require a judge to recuse “in a proceeding in which a judge’s impartiality might reasonably be questioned.” She stated that Smith should recuse himself from cases involving Trump’s personal interests “because it is very clear where your loyalties lie.”
Sen. Adam Schiff brought up the horrific arguments that Smith and his fellow lawyers made in connection with the presidential immunity case. These included the notorious claim that Trump could be immune from criminal prosecution even if he ordered the military to assassinate a political opponent.
Schiff raised a series of hypotheticals involving abuse of power, including self-enrichment, bribery, and even arresting members of Congress to prevent himself from being impeached. Smith referred to the tests for immunity that the Supreme Court laid out in its 2024 decision, but he would not say whether he thought Trump could be held accountable for any of them.
This prompted Schiff to respond:
You don’t want to express your view, because it’s a shocking view.
In our letter opposing the nomination, People For the American Way has set forth many reasons that Justin Smith should not be given a lifetime position as a federal judge. We urge Americans who care about fair courts to contact their senators and urge them to oppose Smith’s confirmation.