SCOTUS

[jfish26]

I figured that's what you'd say -- as if the Court has been politicized for more than half a century. That's why I asked about a decision including one or more of the Democrat appointees. Kagan, for one, seemed dubious of Colorado's case

I don't think the Colorado folks did a very good job making their case.

Agreed.

The Colorado solicitor was...well...not good.

You asked earlier if I would be sad if the Court finds against my view. I will absolutely say that I found it sad that the Colorado SoS was significantly stronger in a post-arguments interview than her lawyers were in front of the Court.

[DCHawk1]

I don't think the Colorado folks did a very good job making their case.

Agreed.

The Colorado solicitor was...well...not good.

You asked earlier if I would be sad if the Court finds against my view. I will absolutely say that I found it sad that the Colorado SoS was significantly stronger in a post-arguments interview than her lawyers were in front of the Court.

What I was getting at -- too snarkily -- is if it will change your mind at all if the majority includes more than just the "conservatives" (i.e. Roberts) and even more than the R-appointees. If Kagan makes it 7-2 or Kagan and Sotomayor make it 8-1, does that give the decision legitimacy?

[Sparko]

Any decision that counts Thomas in its number on a case he has a clear conflict of interests is tainted.

[twocoach]

Are you all going to have a sad if we get a 6-3 or 7-2 decision for Trump?

No, it is what I am expecting based on the cautious questions being reported so far.

[twocoach]

Agreed.

The Colorado solicitor was...well...not good.

You asked earlier if I would be sad if the Court finds against my view. I will absolutely say that I found it sad that the Colorado SoS was significantly stronger in a post-arguments interview than her lawyers were in front of the Court.

What I was getting at -- too snarkily -- is if it will change your mind at all if the majority includes more than just the "conservatives" (i.e. Roberts) and even more than the R-appointees. If Kagan makes it 7-2 or Kagan and Sotomayor make it 8-1, does that give the decision legitimacy?

It depends on their reasoning as to why.

[jfish26]

Agreed.

The Colorado solicitor was...well...not good.

You asked earlier if I would be sad if the Court finds against my view. I will absolutely say that I found it sad that the Colorado SoS was significantly stronger in a post-arguments interview than her lawyers were in front of the Court.

What I was getting at -- too snarkily -- is if it will change your mind at all if the majority includes more than just the "conservatives" (i.e. Roberts) and even more than the R-appointees. If Kagan makes it 7-2 or Kagan and Sotomayor make it 8-1, does that give the decision legitimacy?

And my response - too snarkily, also - could also have been that I think you're really asking multiple related questions that, to me, do not necessarily have the same answer.

Let's take the Court's legitimacy generally off the table; I think you and I might have differing opinions on things like whether the Court's composition at present is fundamentally legitimate, whether Thomas should have recused, and so on.

So, just the matter at hand.

I think there is a difference between an incorrect holding, and an illegitimate one; I think holding that Trump is not disqualified is incorrect, but not necessarily illegitimate. Conversely, I think holding that Trump is categorically immune from criminal culpability would be illegitimate (in addition, obviously, to being incorrect).

So my opinion on this holding will be dependent on what is actually, specifically held. I would be very surprised if what is actually, specifically held is something I consider illegitimate.

But my opinion will not be dependent on the scoreboard, or who is on what side. As you know - almost certainly better than I do - how I would interpret the Constitution here is really more consistent with traditional conservative principles than liberal ones. So, no, Kagan (or Brown-Jackson or Sotomayor, or a combination of some/all) finding "against" my interpretation would not necessarily sway me.

And that's for primarily three reasons.

First, as I've been clear from when we started discussing this, I am expecting the Court to - whether or not it is willing to say it out loud - succumb to political motivations not to be seen as "deciding" the 2024 election, at least on the facts and posture presented by this case. Especially with as poorly as the Colorado side did today, why exactly would a disqualification-leaning justice (whose side doesn't have the votes) stick her neck out? Strategically, the play is probably to let this holding be issued on non-substantive grounds (and keep powder dry for a possible second (or third or ninth) look, but on different facts and posture).

Second - and you may ALSO know this stuff better than I do - oral arguments are not where the real work here is done. I've read both sides' briefs, and certain of the supplemental briefs. My confidence in the thoughtful, sober, historical and legal analyses contained in the supplemental briefs authored by conservatives in favor of disqualification would not necessarily be shaken by a holding with a result contrary to the result called for in those analyses.

Third, and of course I'm allowed to say whatever I want, but I am being genuine: I am not looking at this issue from a partisan standpoint; I have made no secret that I do not want ANY R to win in 2024. The Court holding in "my" favor on this matter would be detrimental there. So the composition of HOW the nine votes are divided is not really relevant to me.

My view isn't set in stone. It's based on my reading of 14A-3, as informed by the briefs and analyses I have read. It is certainly possible that the written opinion(s) will include analysis that changes my mind. And I have an open mind to that - regardless of author.

[Sparko]

There are historical parallels between 1861 and 2020. The southern seceding states were declared in rebellion thru presidential proclaimation. U. S. Officers joining in rebellion had violated their oaths of office and pledge to uphold the constitution. In 2020, Trump and his 1/6 insurrectionists were indicted for insurrectionist adjacent violence and Congress passed impeachment measures cerifying Trump committed it after he left office. The subsequent removal vote became superfluous to many in the senate since he was out of office, but he is an indicted and duly and officially named insurrectionist. Joe Biden could issue an additional proclaimation I guess

[DCHawk1]

You asked earlier if I would be sad if the Court finds against my view. I will absolutely say that I found it sad that the Colorado SoS was significantly stronger in a post-arguments interview than her lawyers were in front of the Court.

What I was getting at -- too snarkily -- is if it will change your mind at all if the majority includes more than just the "conservatives" (i.e. Roberts) and even more than the R-appointees. If Kagan makes it 7-2 or Kagan and Sotomayor make it 8-1, does that give the decision legitimacy?

And my response - too snarkily, also - could also have been that I think you're really asking multiple related questions that, to me, do not necessarily have the same answer.

Let's take the Court's legitimacy generally off the table; I think you and I might have differing opinions on things like whether the Court's composition at present is fundamentally legitimate, whether Thomas should have recused, and so on.

So, just the matter at hand.

I think there is a difference between an incorrect holding, and an illegitimate one; I think holding that Trump is not disqualified is incorrect, but not necessarily illegitimate. Conversely, I think holding that Trump is categorically immune from criminal culpability would be illegitimate (in addition, obviously, to being incorrect).

So my opinion on this holding will be dependent on what is actually, specifically held. I would be very surprised if what is actually, specifically held is something I consider illegitimate.

But my opinion will not be dependent on the scoreboard, or who is on what side. As you know - almost certainly better than I do - how I would interpret the Constitution here is really more consistent with traditional conservative principles than liberal ones. So, no, Kagan (or Brown-Jackson or Sotomayor, or a combination of some/all) finding "against" my interpretation would not necessarily sway me.

And that's for primarily three reasons.

First, as I've been clear from when we started discussing this, I am expecting the Court to - whether or not it is willing to say it out loud - succumb to political motivations not to be seen as "deciding" the 2024 election, at least on the facts and posture presented by this case. Especially with as poorly as the Colorado side did today, why exactly would a disqualification-leaning justice (whose side doesn't have the votes) stick her neck out? Strategically, the play is probably to let this holding be issued on non-substantive grounds (and keep powder dry for a possible second (or third or ninth) look, but on different facts and posture).

Second - and you may ALSO know this stuff better than I do - oral arguments are not where the real work here is done. I've read both sides' briefs, and certain of the supplemental briefs. My confidence in the thoughtful, sober, historical and legal analyses contained in the supplemental briefs authored by conservatives in favor of disqualification would not necessarily be shaken by a holding with a result contrary to the result called for in those analyses.

Third, and of course I'm allowed to say whatever I want, but I am being genuine: I am not looking at this issue from a partisan standpoint; I have made no secret that I do not want ANY R to win in 2024. The Court holding in "my" favor on this matter would be detrimental there. So the composition of HOW the nine votes are divided is not really relevant to me.

My view isn't set in stone. It's based on my reading of 14A-3, as informed by the briefs and analyses I have read. It is certainly possible that the written opinion(s) will include analysis that changes my mind. And I have an open mind to that - regardless of author.

Fair

[DCHawk1]

There are historical parallels between 1861 and 2020.

I guess that's the biggest difference between you and me.

I'm sane...and...well...

[jfish26]

I figured that's what you'd say -- as if the Court has been politicized for more than half a century. That's why I asked about a decision including one or more of the Democrat appointees. Kagan, for one, seemed dubious of Colorado's case

I don't think the Colorado folks did a very good job making their case.

Agreed.

The Colorado solicitor was...well...not good.

It doesn't really add up, from a strategic standpoint.

The Colorado SoS went on TV right after the arguments...and made the case that the solicitor, her colleague, should have made. Which is the case Colorado made in its briefing, and that other observers (including Luttig, Conway, etc.) made in their briefing.

Colorado knew the playbook, in other words, and ... just didn't follow it.

Makes me wonder, just a bit, if Colorado took a bit of a dive today. If you know you're not going to get to five votes today for disqualification, maybe you don't run the good plays (for a lot of reasons, including showing/exposing your cards, and attaching the good plays to a loss).

You noted also Kagan's somewhat-curious skepticism. One thing I will watch is - in this loss for the "liberal" side of the Court - if the holding more or less establishes (as precedent) that 14A-3 is something that exclusively belongs to the federal government. That would be a significant win for the "liberal" side of the Court generally (and would also neutralize the competing-disqualifications nonsense over the border, etc.).

The context behind all of this speculation, which is speculation, is that you can BET that, if Trump is convicted on the 1/6 charges, there will be another run at this in circumstances that are much more favorable to the disqualification side (federal jury trial, Trump directly as defendant on directly-applicable charges, higher burden of proof, etc.).

I am of course aware of my biases, and that there might be a fair (or more than fair!) amount of wishcasting in here. It's speculation, and this is a message board. Perhaps the most LIKELY answer is that Colorado's people just choked. But there's just something off where one side didn't even seem to try to play to its strength - of which it was very well aware.

[DCHawk1]

It's too bad, really. Trump disqualified by SCOTUS via the 14th + Biden disqualified by his own DoJ saying he's not fit to face charges cuz he's senile...

Coulda been a great day.

[jfish26]

It's too bad, really. Trump disqualified by SCOTUS via the 14th + Biden disqualified by his own DoJ saying he's not fit to face charges cuz he's senile...

Coulda been a great day.

Ha - waiting for our friends to get hold of that second one. THAT was a wholly-inappropriate personal opinion for a prosecutor to have put into the record in the context of what the record is of/for.

But nor will it change anything for anyone, and so here we remain.

[DeletedUser]

It's too bad, really. Trump disqualified by SCOTUS via the 14th + Biden disqualified by his own DoJ saying he's not fit to face charges cuz he's senile...

Coulda been a great day.

LOL

Coulda.

[Cassandra]

I don't agree in principal, but it would be nice to have to vote for someone other than Biden and Trump.

[DCHawk1]

It's too bad, really. Trump disqualified by SCOTUS via the 14th + Biden disqualified by his own DoJ saying he's not fit to face charges cuz he's senile...

Coulda been a great day.

Ha - waiting for our friends to get hold of that second one. THAT was a wholly-inappropriate personal opinion for a prosecutor to have put into the record in the context of what the record is of/for.

But nor will it change anything for anyone, and so here we remain.

I don't think they did it to be malicious. I think they thought it was the only way to keep the R's from screeching about double standards.

You're right, though, it was inappropriate -- even if did tickle me.

[RainbowsandUnicorns]

I don't agree in principal, but it would be nice to have to vote for someone other than Biden and Trump.

"have"?

[Sparko]

There are historical parallels between 1861 and 2020.

I guess that's the biggest difference between you and me.

I'm sane...and...well...

Since you make the same mistakes repeatedly, I would advise you to change mental health professionals.

[Sparko]

Because it did not crack the snark, my point was in both the civil war and in 2021, the insurrections were characterized and immediately recognized as insurrection.

[DCHawk1]

THAT was a wholly-inappropriate personal opinion for a prosecutor to have put into the record in the context of what the record is of/for.

Counterpoint:

If Democrats want to be angry at someone, be angry at Attorney General Merrick Garland. The regs make the report confidential, but Garland is the one who decided to release it publicly. You can argue that, politically, he had no choice. But the truth of it is that he did have a choice. The one who didn’t have a choice is Hur. The reg required him to provide his superior, the attorney general, with a report “explaining the prosecution or declination decisions reached by the Special Counsel.” That’s what he did.

https://www.nationalreview.com/2024/02/ ... ng-target/

[jfish26]

THAT was a wholly-inappropriate personal opinion for a prosecutor to have put into the record in the context of what the record is of/for.

Counterpoint:

If Democrats want to be angry at someone, be angry at Attorney General Merrick Garland. The regs make the report confidential, but Garland is the one who decided to release it publicly. You can argue that, politically, he had no choice. But the truth of it is that he did have a choice. The one who didn’t have a choice is Hur. The reg required him to provide his superior, the attorney general, with a report “explaining the prosecution or declination decisions reached by the Special Counsel.” That’s what he did.

https://www.nationalreview.com/2024/02/ ... ng-target/

That’s not much of a counterpoint, right? Releasing the full report was of course 100% politically necessary, as the coverup would be worse than the (non-)crime here.

And it was - lol - the (cough and giggle) right thing to do, besides.