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zataomm


				

				

				

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zataomm


								

								

								
								
								

								
							
					
 
				


				

				
				
				

				

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					joined 2022 September 07 09:43:31 UTC
				


				
					

					
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User ID: 939


					
					
					
				

			


					

						
					



		

	

 











			
			

			
			

			




	


		

			
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				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Well, it seems our short national nightmare is over.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of January 29, 2024
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Sorry to be graphic, but as a logistical matter, it's very hard to imagine how Trump could have inserted his penis into her vagina while she was both 1. standing up and 2. actively resisting him. In this scenario as written, he has his hand with fingers in a V-shape at her crotch, surrounding her vagina, and then he sort of squats down while maintaining pressure against her crotch, in order to thrust upward with his penis through his open fingers. At the same time, he is supposed to be pinning her against the wall with his shoulder. The shoulder of the same hand or of the other hand? At one point he grabbed both her arms and pinned her against the wall, but then he is using his hands to undress himself and putting one hand between her legs. Is she still resisting at this moment or not?


As written, the whole thing just seems impossible, it could have happened if she "gave up" at some point, but it could not have happened in the way she describes.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Horrifying. Context makes it a little better but definitely bad to imply any kind of debt owed to Trump by any of the justices. Not sure who Alina Habba is exactly though, she’s not one of the lawyers whose name appears on Trump’s petition to the court, all of whom surely want to kill her right about now.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Trump has filed his petition to the Supreme Court asking them to review the Colorado decision. Lawyers writing briefs don't generally have the same opportunity for snark as judges when they write their opinions, so my favorite quote was:




constitutional speech protections should not turn on opinions from sociology professors




Which seems reasonable to me.


The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.


The brief points out some deficiencies specific to the Colorado proceedings. Candidates are required to file a paper affirming that they meet the qualifications to be President, but the Colorado Secretary of State is not required to independently investigate this affirmation, and thus had no business doing so. A good point, but by now we have challenges across several states, so the Supreme Court is going to need to go bigger to resolve this issue.


The brief argues that the events of Jan. 6 were not an "insurrection", and even if it was, Trump did not "engage" in the insurrection. I agree with this, but my instinct is that the Supreme Court is not going to want to go so far as to make that determination.


The Supreme Court's two main options are unpalatable. They can:


    

  • Point out deficiencies specific to the Colorado procedure
    • 

  • Take up the case of Trump's eligibility themselves
    • 



The first doesn't go far enough, and won't resolve other states' cases, while the second goes too far, taking on more responsibility than the Supreme Court likes to have. For this reason, my expected outcome is for the Supreme Court to lean on section 5 of the 14th Amendment, saying that Congress and only Congress is able to determine eligibility for federal office. As @AshLael has pointed out, this is standard operating procedure for Roberts, he loves to write opinions which conclude by saying, in effect, "if Congress doesn't like this outcome, they are free to pass a new law to achieve the outcome they like."


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
ProPublica thinks they are running an effective pressure campaign on Clarence Thomas because they have succeeded in moving the NYT and WaPo editors from "convinced that he should resign" to "really, really convinced that he should resign," but they haven't actually changed the mind of anyone who wasn't already convinced.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Yes, I agree with your assessment of Gorsuch and Roberts, which is why if they do agree I could pre-commit to following whatever they say as both wise and respectful of the relevant laws as written. Not sure what I'd do if they disagree but again I think you're right, Gorsuch is more likely to apply the law with strict correctness while Roberts will look for the decision that is best for the political system overall. My heart is with Gorsuch but I think I'd have to go with my head and favor Roberts.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Yes, even if the judge went with "clear and compelling evidence" instead of "balance of probabilities," Trump supporters would still be up in arms. But here's the thing: it's like if your Uncle Barry was making the decision. Uncle Barry might genuinely be the fairest guy in the world, but if people don't know him, they are not going to trust his judgments, fair or not. And your average American doesn't know anything about the Colorado legal system or how they reached their conclusion. But they've heard about Congress and the Supreme Court their whole lives. These bodies carry weight. They're like the household names of American justice. So, if a ruling comes from them, even though some percentage of people will just never be persuaded, for another portion, they at least recognize that the judgment is coming from a place they recognize and understand.


To answer your question for me, personally, I'm not really a Trump supporter, but I do currently think that the process by which this disqualification happened was unjust. But if the SCOTUS takes this case and, concretely, Roberts and Gorsuch vote to uphold the Colorado Supreme Court's decision, that would bring me a lot closer to accepting that Trump at least has gone through a legitimate process leading to disqualification. I don't always agree with those two but I do have massive respect for both of them.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
My point is not that we should ignore the Constitution if a candidate is 29 years old, a born Frenchman, or is running for a third term. What I'm saying is that, rather than trying to divine the appropriate standard of review based on criminal and civil law, let's think about this concrete case. Nobody in 1865 was disputing that the "insurrection" of the 14th amendment applied to the Civil War; in fact, it's safe to say that if by any quirk of interpretation the amendment didn't apply to the Civil War, it would have been re-written until it did apply to that case. So it's really crystal-clear that the disqualification provision applied to those who "engaged in" insurrection by being part of the Confederacy.


In contrast, there are a lot of people who think that the 14th amendment's "insurrection" is not properly applied to the events of January 6th, and that even if it was an "insurrection", Trump did not engage in it. The man literally said, "everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." Just as I, an honest person, can see why many believe that the phrase was empty BS after Trump spent months claiming fraud on the thinnest of evidence, an honest person on the other side should also see why the application of the 14th amendment to Trump is nowhere near as clear-cut as it was to Civil War participants in the 1870s.


So, just like we have different standards in civil and criminal cases, we need to think about what we're really trying to achieve with the 14th Amendment's insurrection clause. It's not just about the law; it's about making sure everyone, including honest Trump supporters, can trust and accept the outcome. Right now, there's a big gap between the two sides. We need to bridge that by understanding the why behind the law, ensuring the process is fair, and making the outcome something people can believe in, even if they don't like it.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Ilya Somin addresses the gravity of civil liabilities compared to criminal penalties. He suggests that sometimes, a short prison term might be preferable to substantial civil damages. And he is approaching a really good point when he writes:




There are situations where the consequences of civil liability are so grave that the civil-criminal distinction may seem artificial, as when defendants end up paying enormous damages that force them into bankruptcy. A short prison term might be less painful than that.




Unfortunately, the next sentence is




But Section 3 disqualification isn't one of those cases.




I say "unfortunately" because he was on the verge of an important conclusion. His analysis goes beyond simply stating, as a fact, that the criminal standard of proof is different from the civil standard of proof, and actually explains why the legal system makes such a distinction. He even points out that in some cases, a light criminal punishment would be preferable to a harsh civil punishment. And yet, for some reason, his analysis stops there, just saying that "disqualification isn't one of those cases" where we really need to really think about what standard of proof is appropriate.


So, instead of just stating, without evidence(!), that "disqualification isn't one of those cases", let's think about the importance of Section 3 disqualification. If you become the nominee for one of the two major parties in the US, a reasonable estimate would be that you have a 50% chance of becoming President. How much time would you be willing to spend in jail to get that kind of chance? For me personally, I have basically no desire to be president, and even so I would be willing to spend, say, 6 months in jail, for the salary and pension alone (N.B. I am poor). Actual ambitious people would probably be willing to give up a lot more.


From the perspective of the American voter, not being able to vote for their preferred candidate is a big deal. This is the kind of statement for which no proof should be necessary, but as an attempt at proof I will offer the time and energy Americans dedicate to voting each election year. That behavior seems like sufficient demonstration that it is really important to them.


I do get it, we have to have standards in legal matters because we can't just let every judge and jury make decisions based on their own idiosyncracies. But rather than falling back on the claim, "well, disqualification is not really a punishment, because no one has the right to be President of the United States", I would suggest taking a second to think about what this concrete case of disqualification means, both to Trump and to his supporters. It is actually, to quote President Biden, "a big fucking deal", and should be treated as such.


Dismissing the severity of disqualification without deeper analysis underestimates its substantial impact on individuals and the democratic process. It deserves the same rigorous debate and consideration as any severe legal sanction.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of December 25, 2023
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Part of it is probably that Scott Alexander wrote specifically and eloquently about how unfair the attacks on Mitt Romney were, so their unfairness has become fixed as a fact in our minds more than potentially similar attacks in previous presidential elections.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Looking at the IRS IRA required minimum distribution (RMD) table, at age 80 you are required to withdraw 5% from your 401k, and the percentage goes up each year after that. At age 75 your withdrawal already exceeds 4%. You don't have to spend it, but you do have to take it as income and pay taxes on it.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Yes, good call, I was confusing the criminal cases about interference with the current case.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Look, obviously, I agree that it’s ridiculous, but I like that it has a parallel to Trump’s encouraging the mob who rioted at the capitol. Could one of the people held up in traffic have been a government official on their way to an important meeting? So the protesters were interfering with a government function.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
This is beautiful in its simplicity, and the Right Thing To Do for the sake of America. But woe unto the Democratic senator or congressman who voted to remove Trump’s disability if Trump actually wins the 2024 election.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
I’ve heard it said that Republicans are getting ready to nominate the only person who can lose to Biden, and Democrats are getting ready to nominate the only person who can lose to Trump. Obviously, a bit overstated, but it feels true. Sensible people in both parties would love to get away from their party's likely presidential candidate, but the Republican experience over the last seven years basically proves that it’s hard to do in the real world.


But yeah, it’s nice to see someone acknowledge that if there were any responsible adults involved, both parties would be taking seriously the major deficiencies in their candidates, rather than just spending their time and energy trying to make the other party’s candidate look worse.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
The sad part is they couldn't even find a good "insurrection" to allege. Hunter Biden's dealings with China? Come on. Can't they argue that Biden in some way encouraged the protesters who block traffic to fight climate change? Or the people who graffiti'd the Lincoln memorial in support of Palestine? Everybody hates those guys, why not go ahead an call it an insurrection?


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
The thread is intended as a follow-up to this comment. America-centric for sure but it seems pretty important. Donald Trump, a leading candidate for one of the two major political parties has been declared ineligible for the presidency because, according to the supreme court of Colorado, he engaged in an insurrection against the US government.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of December 18, 2023
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Yeah, weird. Mod intervention or bug? Definitely a bug in the sense it was not “deleted by user” (me)


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Thanks for the quote. I'm really puzzled by both the dissent and majority's opinion on this matter. As the dissent writes after the line you quoted:




If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383.




I don't understand why neither side considers section 2383 to "enable the enforcement of Section Three". That seems to be exactly what it does, yes "arguably", but the "argument" would mainly just point out that that section uses the exact same language found in the 14th amendment!


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					


Congress has not acted at all, and the issue is whether the bar is self-executing




Congress has acted though, 18 U.S. Code § 2383 - Rebellion or insurrection




Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)




That's why I found this passage shocking; I take your point that if Congress hasn't set up any mechanism to enforce the amendment then it's reasonable to believe that it should be enforcable somehow, but it's much harder for me to swallow the argument that even when Congress does address the matter, the States can set up their own enforcement bodies. In paragraph 105 of the CO decision, the Court writes:




We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383.




Or are you saying "Congress hasn't acted" because the code doesn't say that § 2383 is "pursuant to the 14th Amendment" or some such language?


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
@Gdanning I deleted my comment on the CW thread, would you mind responding here?


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of December 18, 2023
			
		

	

	

	

		
			

			

				

			

		

			


				

					
For those like myself to whom this seems like a big deal and worthy of a dedicated thread, I've created that thread, here


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of December 18, 2023
			
		

	

	

	

		
			

			

				

			

		

			


				

					
To not clog up top comments, I'm deleting this and and putting it in a new thread which hopefully will be of interest to somebody. Colorado Supreme Court thread


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Colorado Supreme Court Thread
			
		

	

	

	

		
			

			

				

			

		

			


				

					
I've been going over the Colorado decision and found this passage from the majority opinion shocking:




Although we do not find Griffin’s Case compelling, we agree with Chief Justice Chase that 'it must be ascertained what particular individuals are embraced by the definition.' 11 F. Cas. at 26. While the disqualification of Section Three attaches automatically, the determination that such an attachment has occurred must be made before the disqualification holds meaning. And Congress has the power under Section Five to establish a process for making that determination. But the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress. Here, the Colorado legislature has established a process—a court proceeding pursuant to section 1-1-113—to make the determination whether a candidate is qualified to be placed on the presidential primary ballot.




This just... doesn't seem right. Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"? It seems like this would be challenged and lose, ironically, under the 14th amendment, which disallows States from setting up their own processes by which to deny citizens rights to which they are entitled under federal law.


				

				

						

							

								
							

						


						
					

				
			


			

	


			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of December 18, 2023
			
		

	

	

	

		
			

			

				

			

		

			


				

					
There are Federal crimes related to slavery though: 18 U.S. Code § 1583 - Enticement into slavery. This is more than just a gotcha; we're talking about punishments here, and I don't really see how the 13th amendment can be self-executing with regard to charging, trying, and punishing an individual for holding someone else in involuntary servitude. So if we imagine a case where a slave sued his enslaver who held him in bondage after 1865, sure, the court would rule that the slave could no longer be held, but without further legislation, they couldn't really specify a punishment for the slave holder. Presumably the slaveholder could then be sued in civil court for damages by his slave. I think in that case the 13th amendment would prevent the slaveholder from using "this man is my slave" as a defense.


Getting kind of far afield here, but the overall point is that the difference between sword and shield actually is important; if the Constitution establishes a specific punishment, then it makes sense to believe that it is up to Congress to establish a procedure for determining to whom that punishment should be applied.


On the other hand, I don't have much to say in response to your point about Jefferson Davis. It's a good point.