I was stunned at what I heard listening to the oral arguments before SCOTUS on Trump’s appeal of Colorado denying him ballot access. As the the title suggests I had two main reactions. First, Colorado’s lead attorney BLEW it. The second one that worked for the Secretary of State did better but still not enough to come close to undoing the damage. My other main takeaway was that Trump’s thuggery, his threats, his bullying have I fear affected the Justices. All of them although a couple, most notably Justice Jackson showed some signs of pushback at Trump’s case.
There has been plenty of analysis since the hearing and there will of course be plenty more to come. If you want more than my own thoughts or to get more details than what I’m about to cover here’s a fair summary from CNN.
I should note that Trump’s attorney (Jonathan Mitchell – the force behind Texas’ anti-abortion law among other things) went first. I was struck by how much of the questioning focused not on the fact there’d been a insurrectionist riot at the Capitol and Trump’s words and actions prior to and during, but on technicalities. In particular the Griffen case from back in the 1860s got lots of discussion. You can read more about it in the linked CNN article but it seemed Trump was resting much of his argument on Griffen. Trump’s lawyer and some of the Justices made much of the fact Chief Justice Salmon Chase acting at a state court level authored a ruling that would on the face of it work in Trump’s favor. However, even some of those Justices had to concede it was a lower (and state – Virginia) court case and carried no weight as precedent for case law. Yes, he got some tough questions but as I’ve noted the actual issue, that Trump fomented an insurrection got virtually no attention.
When Colorado lead attorney Jason Murray’s turn came it seemed to this layperson he simply wasn’t up to the moment. Unlike Trump’s attorney he’d never had pleaded a case before SCOTUS and after this I doubt he’ll ever do so again. Justices, like judges in appeals courts ask questions right away and often interrupt attorneys. That’s just how all this works and attorney are, or should be prepared for that. Good ones and especially great ones have some ability to turn from what is being asked to making key points they want to make. Murray showed no ability to do that.
As pundits have noted there were briefs he/the state of Colorado had (and others) had filed that addressed the issues of the insurrection and Trump’s role, history of the 14th Amendment and both why it applied and was in fact self-executing. I trust the pundits I heard that these were solid briefs and made the case well that Trump should be disqualified. That Murray could have used both Trump’s and some of the Justices own words against Trump’s case in response to some of the questions. However when challenged he wilted. With anyone who wanted to being able to listen in live he blew the chance to score major points for his case with the public. If he was thinking “Well, I don’t want to offend the Justices and they have the briefs that make my/our position on that in detail” then that’s not good enough.
Not since this was one of those rare instances when SCOTUS allows a live feed of the oral arguments!
I could go on a real, epic rant about how badly Colorado blew it but I want to get to the second point. I honestly believe the Justices have been intimidated over time. Yes, they deal with threats as part of the job. Even death threats which is why they have U.S. Marshalls protecting them, their homes and loved ones. If act they went to Congress a while back and demanded funding for extra protection! (they got it of course) But it was clear long before the hearing was up they went into it determined to find not just one but multiple “technicalities” to let Trump and themselves off the hook. To avoid doing what is clearly laid out in the 14th Amendment.
I don’t have any trouble believing in the backs of their minds they heard Trump saying “Nice Supreme Court you’ve got there. Be a shame if something happened to it.” Even the Democratic appointees who you might have expected to put up more of a fight, to hit Trump’s lawyer with tougher questions about the insurrection, the record of testimony including and especially from people who worked in the Trump WH, taken under oath. To push him on how the hell that wasn’t aiding and abetting, “giving comfort to” an insurrection. To push harder on the brief exchange when the language of the amendment was being debated. When one Congress Critter asked why the President and VP weren’t specifically named the response, put in modern terms was “Look at the language dumbass. They ARE covered even if we don’t specifically write “And for you dummies out there yes, the Prez & Veep are included. It’s OBVIOUS to even the village idiot!”
No there wasn’t any of that and way too much allowance was given for obfuscation. Especially on the “Officer” vs. “Office Under the United States” thing. As I said, the Justices went in looking for a way out. A way to avoid telling Donald Trump (and MAGA) “You took part in planning and implementing an insurrection. And the Constitution says because of that you can’t hold public office.” Because they were (and are) afraid of having to stand up directly to Trump.
One final thought. Two words came up ever so briefly but they brought chills to my spine and not the good kind. Presidential Immunity. Trump’s FL attorneys have said they’ll be filing immunity motions in his Florida case. You can bet the farm Trump’s lawyer was told to find a way to claim it today straight to the Justices faces. And in denying the Capitol Riot was in insurrection he did just that.
That may not work out like Trump had hoped. As I said they want no part of dealing with Donald Trump anymore. They’ve ruled against him before and caught hell from him and MAGA for it. So, just as they so clearly want this case off their dockets even if it means (and this has to gall the conservatives) resorting to finding technicalities and amplifying them into legal reasoning then so bit it. But it might also mean they will, or intend to dump blame for denial of Trump’s “immunity” onto a lower court. We’ll have to wait and see.
In the end while I’d love seeing Trump get a thrashing at the ballot box I love the Constitution more and ignoring it and giving a pass to Trump for fear of consequences of applying it’s provisions to him is something I can’t abide. Yes, some fear Trump will inspire MAGA to engage in an actual Civil War. A second one. To that my response is what then former President John Quincy Adams, son of John Adams who as you know was one of our founding fathers said in the Amistad case. He hearkened the Justices to consider the busts of Washington, Adams and Jefferson in the room and that it was time to look to them for wisdom with all the threats from southern states over consequences of freeing those would-be slaves who took over the ship.
Being in the latter half of my 60s I only remember some of the violence of the Civil Rights struggles of the 50s and 60s. The violence. Beatings. Bombings, Murders. We are being threatened by Trump/MAGA with worse. We can’t give in. We have to vote no matter what. We have to resist with all we have against MAGA nation even if there’s a cost in blood and lives. The only thing that will stop them is to stand up to them. Literally physically if necessary and say NO! No matter the cost. Because the alternative is something we simply can’t let happen. If as the younger Adams said we have Civil War then so be it:
There may be a silver lining to this dark cloud.
Even though it’s quite obvious to everyone that The Rapist should be excluded, if, by tortured, duplicitous legal ‘reasoning’, they do decide that The Rapist is able to be on the ballot, it’s still good news for our side.
The Rapist as republican candidate is really their weakest choice, up against competent Biden, with the electorate firmly decided against a criminal, he stands little chance.
Biden will win, Democrats will take both houses, SCOTUS will be enlarged, and The House can pass legislation confirming the primacy of the 14th Amendment.
The Rapist and his crazed acolytes will lose, it will all be decided in the ballot box.
But. What a shame Merrick Garland moved so slowly earlier on, this could have been settled by now.
Read 1776 by David McCullough and its CLEAR this nation was not founded by COWARDS! Read Killer Angel’s by Michael Shaara, a book about the turning point of the Civil War…Gettysburg. Both won Pulitzers. We only have a republic because of courage. As I’ve mentioned previously, it amazes me these cowards only fear the ignorant traitors, but have no fear of those who will not live under tyranny. It is clear what Trump did as everyone with eyes and ears could see. To see them overrule the truth and then make excuses makes them traitors. It’s that simple. The real question is are there enough of us to rise up and make our voices heard through the vote while we still have it. As John Kennedy once remarked, as I remember it: those who make justice impossible make revolution inevitable. Revolution will not consist of holding hands and singing kumbaya. It never has.
Don’t confuse how beholden this court is to big money for cowardice. Jamie Simon even openly said he’s fine with a Trump presidency. Corporate Godzillas are fine with dictators. They get their way more easily by just paying the right persons.
One of the points that was in the questions asked was ‘Why should Colorado get to decide that the other states not be allowed to be on the ballot’ (paraphrased, obviously).
The CORRECT answer is, Colorado is not deciding for any other states, just for Colorado. While we admit that ruling for our states right to conduct elections the way they choose, other states also should have the right to do so. Banning DJT from the ballot in CO does not mean other states have to do so, just that should they choose to do so, they can.
Why didn’t the CO atty not bring up Preemption? Can the Congress or SCOTUS preempt states
rights to run elections?
SCOTUS has no reason to fear the thug ftg. They have lifetime appointments. Nothing short of a constitutional amendment can alter that–or Thomas and Alito would be history.
They DO have a right to fear his unhinged cultists, but that is what their security detail is for. If they can’t stand the heat, they need to get out of the kitchen. Do they think the justices who delivered Brown v.Board of Education didn’t realize Southern white trash thugs wanted then dead? The difference is those justices had spines, morality over ideology, and could try over party.
Since we can’t expect someone to put a cap right behind Dumpy’s ear since we’re supposed to be the good guys, why can’t that unhealthy blob of French fry and burger fat just keel over from a massive coronary? He’s the perfect candidate for it, especially with all the over the top stress he’s under. But no, that frigging waste of oxygen and space keeps breathing just to spite us! Maybe it’ll happen after Labor Day, which would be perfect, because it would be pretty much impossible for the traitorous GOP to get moving behind anyone else, though Dummy’s lackeys would probably still vote for him anyway figuring he’s just deep undercover conducting surveillance on pizza joints or some sh**. Ugh, my bitching and rambling is done for now!