A Deeply Fractured US

[Brad Sallows]

Perceived by who?

At risk of mixing my message boards- fans and players of the dirty team always think that equal application of the rules should result in equal penalization, lose their minds at "unfair reffing" when they end up with more penalties, and can't comprehend the difference in what they've been doing and what the cleaner team has been doing.

Appeasing the perception of the unreasonable is not a guiding principle of the rule of law, or fairness.

Everyone.

It isn't merely unreasonable people who perceive that there are double standards for the pretexts on which deep investigations of presidents and their associates are launched.

 

[Remius]

It's all moot. The SCOTUS is going to put it in the shitter, no matter what Colorado says.

Would that be because of an error in law or because the court has a majority of republican judges?

 

[Brad Sallows]

I know a few hard right constitutional lawyers who don’t see how the case could have gone any other way. They don’t necessarily like it, but can’t find errors in the decision.

3 of the 7 judges had reasons for not joining the majority.

 

[Brad Sallows]

Would that be because of an error in law or because the court has a majority of republican judges?

Can't be the latter. That would invite the possibility that the decision eventuated only because it involved only democratic judges.

 

[Remius]

I

Can't be the latter. That would invite the possibility that the decision eventuated only because it involved only democratic judges.

It’s a question of perception as you are fond of saying. I am interested in what FB’s declaration of what the SCOTUS will decide assuming they take this up and how he comes to that conclusion.

 

[Brad Sallows]

It’s a question of perception as you are fond of saying. I am interested in what FB’s declaration of what the SCOTUS will decide assuming they take this up and how he comes to that conclusion.

There are at least 3 places they could hang it: that "officer of the United States", as a particular term in the Constitution and amendments, does not include the president; that "insurrection" has to be proven in criminal court when it falls short of an obvious armed uprising like the revolution or secession/civil war; that the threshold for "engaged in" has to be higher and not muddled with contemporary comments exhorting people to be "peaceful".

 

[Remius]

There are at least 3 places they could hang it: that "officer of the United States", as a particular term in the Constitution and amendments, does not include the president; that "insurrection" has to be proven in criminal court when it falls short of an obvious armed uprising like the revolution or secession/civil war; that the threshold for "engaged in" has to be higher and not muddled with contemporary comments exhorting people to be "peaceful".

You’ve entirely missed the point of my line of question in regards to his post.

I also note that you have yet to confirm that you have read any of the legal documents leading to those decisions.

I’ll carry on and avoid derailing this further but I trust you see what I am getting at here.

 

[brihard]

You’ve entirely missed the point of my line of question in regards to his post.

I also note that you have yet to confirm that you have read any of the legal documents leading to those decisions.

I’ll carry on and avoid derailing this further but I trust you see what I am getting at here.

He did finally say this morning that he read portions of (I believe) the trial court decision. I’m not sure if that happened since I pressed him on it or before, but he’s at least looked at some of it. His take now seems to be a mix of simply disagreeing with both levels of court, and thinking that there’s some politically indefensible double standard at play through the myriad legal proceedings orbiting DJT, and that therefore the very exercise of the processes themselves is illegitimate. The latter argument necessarily fails if one believes the courts should exercise their role agnostic to the identity of the parties, objectively based on facts, and with strict adherence to their best interpretation of law as written and intended.

 

[Brad Sallows]

You’ve entirely missed the point of my line of question in regards to his post.

I also note that you have yet to confirm that you have read any of the legal documents leading to those decisions.

I’ll carry on and avoid derailing this further but I trust you see what I am getting at here.

What was the point, then? Or was there no point other than to highlight that no particular reason was given?

See #4952.

Enough informed commentary emerges on both sides of controversial legal issues that it isn't really necessary for a layman to read a decision to understand the points of friction. It's even almost impossible for one commentator to take something out of context and massage it a little without a handful of others pointing out the deficiencies with 24 hours.

 

[Brad Sallows]

He did finally say this morning that he read portions of (I believe) the trial court decision. I’m not sure if that happened since I pressed him on it or before, but he’s at least looked at some of it. His take now seems to be a mix of simply disagreeing with both levels of court, and thinking that there’s some politically indefensible double standard at play through the myriad legal proceedings orbiting DJT, and that therefore the very exercise of the processes themselves is illegitimate. The latter argument necessarily fails if one believes the courts should exercise their role agnostic to the identity of the parties, objectively based on facts, and with strict adherence to their best interpretation of law as written and intended.

I have the same 3 points of disagreement now that I had back when people started floating the idea of using the 14th. Plenty of commentators weighed in on both sides. The 3 things I've mentioned were obvious points of dispute then, and are points of dispute now. I doubt that the distillation of essential points argued by people deeply familiar with US law, and particularly US constitutional law, is less illuminating than simply reading the decision and trying to filter it through a Canadian's experience.

I'm not going to go back through this thread and find all the people who expressed a view that Roe v Wade was overturned because "republican/conservative judges" rather than "a case that was originally weakly reasoned and deserved to fall". Those people can figure out for themselves whether they did that, and whether it opens the door to the possibility that other decisions might be decided because "factional judges". But as I've noted, there are indicators that the decision isn't particularly strong. First, that the majority was only a bare majority (and there were no "republican judges"). Second, that customarily people who have strong evidence don't weaken their arguments by including weak evidence. Fretting about Trump's failure to keep up with whatever goalposts his political opponents keep moving around is weak evidence.

 

[Fishbone Jones]

Would that be because of an error in law or because the court has a majority of republican judges?

I see what you're trying to do. I actually expect no party lines in this vote. I will be surprised if it's not a 9-0 decision. I think they are also going to settle whether Trump was an insurrectionist question once and for all. Even Jack Smith didn't bring that charge.

The big problem I have with all this, whether legislatively legal or not, is that there are 4 Democrat judges, appointed by a Democrat governor, telling almost 6 million people who they can and can't vote for. Let the actual voters decide. If the court had faith that their citizens are intelligent and fair, they would have faith that voters would make the right decision. However, maybe that's what they are afraid of, finding themselves on the wrong side of the voter. While they may be making a technically legal decision, they are not making a moral one. Nor do they trust their electorate to make the decision they want. Not necessarily the right one, but the one they prefer. If I lived in Colorado, I'd be mightily pissed for some state official in the capital telling me how to vote or removing my choice to decide for myself.

Edit to correct population size

 

[KevinB]

I see what you're trying to do. I actually expect no party lines in this vote. I will be surprised if it's not a 9-0 decision.

The big problem I have with all this, whether legislatively legal or not, is that there are 4 Democrat judges, appointed by a Democrat governor, telling over 33 million people who they can and can't vote for. Let the actual voters decide. If the court had faith that their citizens are intelligent and fair, they would have faith that voters would make the right decision. However, maybe that's what they are afraid of, finding themselves on the wrong side of the voter. While they may be making a technically legal decision, they are not making a moral one. Nor do they trust their electorate to make the decision they want. Not necessarily the right one, but the one they prefer. If I lived in Colorado, I'd be mightily pissed for some puke in the state capital telling me how to vote or removing my choice to decide for myself.

Did you read the decision?

Because the issue isn’t that at all, by law the Colorado AG has to certify the delegates on the ballot. When the issue of the ineligibility of DJT came up, the courts rule based on the evidence at hand.

Your argument was very similar to what the Colorado Republican State Central Committee argued, but that would mean that then anyone including ineligible candidates (for multiple different reasons) could be nominated and run.

Depending on how one feels about DJT can influence how one feels about the label of Insurrection being applied.

I would agree with @brihard that regardless of the CO case, it is going to become an issue at one point between now and Nov 5th 2024 (our Federal Election).

 

[lenaitch]

I see what you're trying to do. I actually expect no party lines in this vote. I will be surprised if it's not a 9-0 decision.

The big problem I have with all this, whether legislatively legal or not, is that there are 4 Democrat judges, appointed by a Democrat governor, telling over 33 million people who they can and can't vote for. Let the actual voters decide. If the court had faith that their citizens are intelligent and fair, they would have faith that voters would make the right decision. However, maybe that's what they are afraid of, finding themselves on the wrong side of the voter. While they may be making a technically legal decision, they are not making a moral one. Nor do they trust their electorate to make the decision they want. Not necessarily the right one, but the one they prefer. If I lived in Colorado, I'd be mightily pissed for some state official in the capital telling me how to vote or removing my choice to decide for myself.

The rules surrounding who is and is not eligible to run for and hold federal office are embodied in the US Constitution. I totally agree that this decision will probably have a short shelf life, but do you think the ability to run for and hold office should be wide open? Like, a 25-year-old with a criminal record and who is actually a citizen of Moldovia? Surely the people of Colorado should be mature enough to see through him/her/them or, conversely, desire him/her/them to represent them.

Or is all of this, I mean everything that goes on in US politics of late, simply a matter of 'one side evil; one side saintly - pick your side'. Maybe it would speed things up if they changed the Constitution to mandate that, a day after a President is sworn in, an impeachment hearing is empanelled to throw him out.

 

[Fishbone Jones]

Did you read the decision?

Because the issue isn’t that at all, by law the Colorado AG has to certify the delegates on the ballot. When the issue of the ineligibility of DJT came up, the courts rule based on the evidence at hand.

Your argument was very similar to what the Colorado Republican State Central Committee argued, but that would mean that then anyone including ineligible candidates (for multiple different reasons) could be nominated and run.

Depending on how one feels about DJT can influence how one feels about the label of Insurrection being applied.

I would agree with @brihard that regardless of the CO case, it is going to become an issue at one point between now and Nov 5th 2024 (our Federal Election).

I edited my first para above. No I didn't read it. I'm not going to wade through 200 pages of legal gobblygook to try figure out the machinations of the democrat mind. I'm just going to wait for SCOTUS, which won't be long. Like I said, Jack Smith, a Democrat zealot prosecutor, didn't bring the insurrection charge. I'm also pretty sure everyone knows he would if he could.

 

[Brad Sallows]

thinking that there’s some politically indefensible double standard at play through the myriad legal proceedings orbiting DJT, and that therefore the very exercise of the processes themselves is illegitimate. The latter argument necessarily fails if one believes the courts should exercise their role agnostic to the identity of the parties, objectively based on facts, and with strict adherence to their best interpretation of law as written and intended.

This raises ideas on legitimacy I have echoed here before.

The exercise of a process, provided it adheres to the procedure, is legitimate. It has "input legitimacy". To some people this is all that matters.

If indefensible double standards, or other flavours of hypocrisy, or selective adherence to "rule of law", or disregard for the appearance of impropriety are involved, then the outcome - not exercise - of a process may (will, in the views of people disfavoured) lack "output legitimacy". It is a motivating factor for a lot of grief. The people who don't care cannot force everyone else to not care; to be dismissive is to ignore an absolutely real problem. Perceptions matter. Frustrated and angry people occasionally vote for marginal candidates. What would it be worth to treat the problem as real and seriously address it?

In the case of matters touching on elections and people standing for election, lack of output legitimacy destroys trust in the process, which eventually will destroy trust in the results and destroy trust in the associated institutions. Trump has damaged output legitimacy with his 2020/2021 (and ongoing) election denial, and so has everyone who has been shaving away norms and blatantly exercising non-uniform standards to go after Trump. Trump will eventually be gone; the damage done by the latter will be harder to repair, because trust is hard to re-establish. "Sow the wind".

Here is Andrew Potter's editorial on the subject, which I have linked before.

 

[Fishbone Jones]

The rules surrounding who is and is not eligible to run for and hold federal office are embodied in the US Constitution. I totally agree that this decision will probably have a short shelf life, but do you think the ability to run for and hold office should be wide open? Like, a 25-year-old with a criminal record and who is actually a citizen of Moldovia? Surely the people of Colorado should be mature enough to see through him/her/them or, conversely, desire him/her/them to represent them.

Or is all of this, I mean everything that goes on in US politics of late, simply a matter of 'one side evil; one side saintly - pick your side'. Maybe it would speed things up if they changed the Constitution to mandate that, a day after a President is sworn in, an impeachment hearing is empanelled to throw him out.

I'm not going to address your ridiculous hypothetical. What if he wins the Primary? Are you in favour of 4 appointed people using a specious argument to tell all Republicans in the country, that their choice is not acceptable and won't be listed on the ballot in our Democrat state?

To your second point, that's pretty well what Pelosi and Schumer did, without changing the Constitution, but ignoring it as they are want to do.

 

[Brad Sallows]

I see what you're trying to do. I actually expect no party lines in this vote. I will be surprised if it's not a 9-0 decision. I think they are also going to settle whether Trump was an insurrectionist question once and for all. Even Jack Smith didn't bring that charge.

The big problem I have with all this, whether legislatively legal or not, is that there are 4 Democrat judges, appointed by a Democrat governor, telling over 33 million people who they can and can't vote for. Let the actual voters decide. If the court had faith that their citizens are intelligent and fair, they would have faith that voters would make the right decision. However, maybe that's what they are afraid of, finding themselves on the wrong side of the voter. While they may be making a technically legal decision, they are not making a moral one. Nor do they trust their electorate to make the decision they want. Not necessarily the right one, but the one they prefer. If I lived in Colorado, I'd be mightily pissed for some state official in the capital telling me how to vote or removing my choice to decide for myself.

33 million sounds more like California than Colorado.

Whether or not a state court should be weighing in on candidate disqualification is not controversial. If some underage or foreign-born were trying to stand for the presidency, no-one would object to legal action to prevent it. The controversy lies in how much has to be "found" to support meeting the disqualification criteria of the 14th.

 

[Fishbone Jones]

33 million sounds more like California than Colorado.

Whether or not a state court should be weighing in on candidate disqualification is not controversial. If some underage or foreign-born were trying to stand for the presidency, no-one would object to legal action to prevent it. The controversy lies in how much has to be "found" to support meeting the disqualification criteria of the 14th.

Oops, wrong column. Should read almost 6 million. Mea culpa

 

[brihard]

33 million sounds more like California than Colorado.

Whether or not a state court should be weighing in on candidate disqualification is not controversial. If some underage or foreign-born were trying to stand for the presidency, no-one would object to legal action to prevent it. The controversy lies in how much has to be "found" to support meeting the disqualification criteria of the 14th.

This, with the added qualification that the actual legal question is on a narrower state level mechanism, making any precedent less immediately and directly expansive in application. But absolutely- eligibility for president is constitutional law, and 14(3) is no less a valid criteria than the minimum age of 35, nor natural born citizenship. Obviously it’s a valid matter for courts to take up. Judges aren’t deciding arbitrarily that someone doesn’t to put their name in the hat. They’re deciding if the foundational constitutional rules about names and hats apply to the name in question based on an objective fact set. The rules themselves were already made, and with good reason.

 

[lenaitch]

legal gobblygook to try figure out the machinations of the democrat mind.

4 appointed people using a specious argument to tell all Republicans in the country

Well, at least you wear your leanings on your sleeve.