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PaperclipPerfector  4mo ago (text post)   29098 thread views

Culture War Roundup for the week of December 18, 2023

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The Colorado Supreme Court holds:

A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

[recent related discussion, slightly older]

The Colorado Presidential Primary is scheduled for March 5th, for both parties. As the decision notes, January 4, 2024 is "the day before the Secretary’s deadline to certify the content of the presidential primary ballot)"; while the matter is open to further stay should federal courts intervene, such an intervention would itself determine at least the state presidential primary.

How are the procedural protections? From the dissent:

As President Trump, argues and the Electors do not contest, section 1-1-113’s procedures do not provide common tools for complex fact-finding: preliminary evidentiary or pre-trial motions hearings, subpoena powers, basic discovery, depositions, and time for disclosure of witnesses and exhibits. This same concern was raised in Frazier; the then-Secretary argued that “it is impossible to fully litigate a complex constitutional issue within days or weeks, as is typical of a section 1-1-113 proceeding.”...

Despite clear requirements, the district court did not follow section 1-4-1204’s statutory timeline for section 1-1-113 claims. The proceeding below involved two delays that, respectively, violated (1) the requirement that the merits hearing be held within five days of the challenge being lodged, and (2) the requirement that the district court issue its order within forty-eight hours of the merits hearing.

And the other dissent:

Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below—which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim...

and

Even with the unauthorized statutory alterations made by the district court, the aggressive deadlines and procedures used nevertheless stripped the proceedings of many basic protections that normally accompany a civil trial, never mind a criminal trial. There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the Electors’ claim before the hearing on the merits.

There was no fair trial either: President Trump was not offered the opportunity to request a jury of his peers; experts opined about some of the facts surrounding the January 6 incident and theorized about the law, including as it relates to the interpretation and application of the Fourteenth Amendment generally and Section Three specifically; and the court received and considered a partial congressional report, the admissibility of which is not beyond reproach.

Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least?

The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University, whom it had “qualified . . . as an expert in political extremism, including how extremists communicate, and how the events leading up to and including the January 6 attack relate to longstanding patterns of behavior and communication by political extremists.”

He testified, according to the court’s summary, that (1) “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while [President] Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability,”

There are interpretations here other than that of the Russell Conjugation: that stochastic terrorism is limited to this tiny portion of space, or perhaps that shucks there just hasn't ever been some opportunity to worry about it ever before and they're tots going to consistently apply this across the political spectrum in the future. They are not particularly persuasive to me, from this expert.

Perhaps more damning, this is what the majority found a useful one to highlight : a sociology professor who has been playing this tune since 2017.

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot. But that's not a metaphor I pick from dissimilarity.

This whole quagmire could be avoided if republicans simply let go of Trump and supported someone not so old and so indicted, but they love marching into a trap.

  • -23

Or Democrats could, "simply," not invent novel legal theories to prosecute their political enemies. What's Game Theory predict if one side defects while the one side does not?

... that the other side will eventually defect, like Democrats are doing now.

I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.

At the time I hoped that Democrats would defect in ways that merely rebalanced the court to correct for that theft, and let things return to a stable equilibrium otherwise. But, no, touching the court was considered beyond the pale by the highest levels of the Democratic party, so instead it's the lower levels of the party defecting in various corners in a decentralized way.

New hope is 'defeating' Trump would be enough to pacify those elements and get back to equilibrium. Not holding my breath though.

  • -21

I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.

It goes both ways. McConnell refused to hold hearings on Garland because republicans had been convinced that democrats will never, ever deal with them honestly- and this prediction seems to have been true- by events occurring prior to Scalia’s death.

Reps stole a Supreme Court seat

Democrats did it first. Then act like wounded victims when the perfectly obvious response occurs. Explicitly told by the chief Republican what the consequences will be.

You may be right that this broke something important in American politics. I'd say both parties did it and wouldn't particularly single out the Republicans as being at fault.

Changing the filibuster rules and staling a Supreme Court seat are not remotely comparable.

  • -10

And yet they are compared.

Why do you think they aren't comparable and /u/TIRM does?

Escalation is not a great move for the country, even if it makes you personally feel good.

I'm sure Republicans can point to Bork and say it "really" started there. There a million other slights and violations of norms in the past.

Using smaller violations of norms in the past is never a good reason to justify larger ones now since, using the same logic, the other party can retaliate in an even bigger way.

The person you are arguing is on the record that they consider false rape accusations a legitimate political tactic. I don't think "escalation is bad" is going to persuade them.

The person you are arguing is on the record that they consider false rape accusations a legitimate political tactic.

Is that true @guesswho?

I think this is referring to this sequence

ymeskhout Trump got hit by two gag orders from two different judges [...] So with that out of the way, how does it apply to Trump? Judge Chutkan's order restricts him from making statements that "target" the prosecutor, court staff, and "reasonably foreseeable witnesses or the substance of their testimony". [...] Discrediting witnesses is harder to draw a clean line on, because again there's a gradient between discrediting and intimidating. I think Trump should have the absolute and unrestricted right to discuss any of his charges and discredit any evidence and witnesses against him.

guesswho I'm not sure why it's important to discredit a witness in the public eye, instead of at trial where you're allowed to say all those things directly to the judge and jury. Especially in light of the negative externalities to the system itself, ie if we allow defendants to make witnesses and judges and prosecutors and jurors lives a living nightmare right up until the line of 'definitely undeniably direct tampering', then that sets a precedent where no sane person wants to fill any of those roles, and the process of justice is impeded. [...]

sliders1234 [...] Girl who you had a drunken hook up texted you the next day saying how much fun she had with you last night. You ignore her text. 2 weeks later she claims rape. It’s in the newspaper. Suddenly your name is tarnished. Everyone in town now views your condo building as feeding money into your pocket. Sales slump. Now do you see why this hypothetical real estate developer would have a reason to hit back in the media? He’s being significantly punished (maybe leading to bankruptcy) without ever being found guilty in the court of law. Of course Trump has motivations to hit hard against the judge and prosecuting attorney. The more partisan they appear the more it makes him look better and get the marginal voter.

guesswho [...] I guess what I would say is that 1. that sees like a really narrow case [...] 2. I would hope a judge in that case wouldn't issue a blanket gag order [...] 3. yeah, there may have to be some trade-offs between corner-cases like this and making the system work in the median case. [...] I'm open to the idea that we should reform the system to make it less damaging to defendants who have not been convicted yet, but if we are deciding to care about that then these super-rich and powerful guys worrying about their reputations are way down on my list under a lot of other defendants who need the help more urgently.

That technically counts as "considering it fair that a defendant can be bound not to disparage a witness against them in a sexual assault case, even if the defendant is a politician and the rape accusation is false". But if that's the exchange @FCfromSSC is talking about it seems like a massive stretch to describe it that way.

Nope. It was on reddit, under his old handle, and about Kavanaugh. I don't have a link, though, so if he's willing to deny it, feel free to disregard as you please.

More comments

No idea what they're talking about.

I'm sure they'll link something from 4 years ago but who knows what. It's all very tedious.

You were off by a year.

Being removed from a primary ballot in one state is much, much, much smaller than losing a Supreme Court justice.

  • -14

The stated reason for being removed from the primary ballot is that CO does not believe Trump is eligible to hold the office of POTUS. If the GOP nominates Trump, notwithstanding CO's lack of participation, for President, the same logic mandates that CO refuse to list Trump in the November election as GOP nominee. This isn't just about the primary, and claiming otherwise without further argument/support is either ignorant or malicious.

That seems like a logical conclusion, but the courts don't run on logic and everything about this case so far has run on obscure legal theories and precedents rather than logic.

Most specifically, there's nothing about this finding in this case that causes him to be barred from the general ballot, even if it makes sense that he should be based on this finding. AFAIK, there would still have to be a separate hearing and a separate judgement and a separate ruling in order to make that happen.

Maybe that's what will happen, maybe not; the USSC looks to be getting involved, so a lot could change between now and then. But either way, it's something that hasn't happened yet, so blaming people for doing it when they haven't is untoward.

It's not a "logical conclusion" - it's the actual holding of the CO Supreme Court. The relevant language is this (at pgs. 8-9):

We hold as follows:

• The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.

• Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.

• Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.

• Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error.

• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.

• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”

• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.

• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.

The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.

(bolding added for emphasis)

The chief holding is that, under Colorado's interpretation of federal law, Trump is disqualified from the office of President. The result of that finding under the facts of the case at bar is that Trump is disqualified from the primary ballot. However, the underlying holding is already sufficient for the CO Secretary of State to subsequently keep Trump off the November, 2024 ballot, as well as for the CO state government to claim nullification of any action by a future second Trump administration. It would require a second case affirmatively overturning this case in order for Trump to be placed on the CO presidential ballot in 2024.

The logic of the case must therefore hold that he is not eligible for the general in Colorado

What number of states removing Trump from the primary ballot will count for you as being larger than losing a Supreme Court Justice? What number of states removing Trump from the general ballot will count for you as being larger than losing a Supreme Court Justice? Set a goal post in the here and now, before we get to the culmination of this trend, so that we can look back and gauge whether they ended up escalating or not.

What number of states removing Trump from the primary ballot will count for you as being larger than losing a Supreme Court Justice?

I don't know, maybe 500?

Given that doing that would pretty much guarantee the Republicans a landslide win for whichever candidate they run instead and also for the Senate and House, this would have basically zero negative impact on their political aspirations and instead probably help them a lot.

Whereas, a Supreme Court seat is probably the most influential and consequential position in the entire government, it's the holy grail of political footballs, it's why you turn out to elect your side's president even if you find him tiresome or awful and don't really care who governs beyond that.

  • -11

Whereas, a Supreme Court seat is probably the most influential and consequential position in the entire government, it's the holy grail of political footballs, it's why you turn out to elect your side's president

Big oof. You're not going to convince anyone that it's not an escalation unless 500 states remove Trump from the ballot. The fact that you think this is even a plausible response is pretty indicative of bad faith, since you're all up and down this thread saying, 'Don't worry, it's just one, and it's just a primary,' to now see that you actually think that it being literally all of them for the general election would be totally fine. Like you've pre-planned an execution of the Law of Merited Impossibility.

Becoming a banana republic is clearly an escalation compared to parliamentary tactics/heresthetics.

More comments

I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.

I think you can over-emphasize its importance. The political tit-for-tat and flouting national norms goes back a long time. But I would politely suggest anyone looking to the Garland -> Gorsuch -> Kavanaugh arc of the Supreme Court as the only relevant history is either misinformed, or using deeply-motivated history.

As some examples:

The modern history of contentious Supreme Court Justice Nominations really starts with Robert Bork.

Clarence Thomas and Brett Kavanaugh (and perhaps even Amy Comey Barrett) were subject to far more contentious nominations than anything Democratic appointees have ever been subject to.

Bush v Gore probably did more than any other case to convince the public that the Court is a political actor.

The Roberts opinion affirming the Constitutionality of Obamacare probably comes second.

Looking past SCOTUS: Russiagate pee tape accusations and George Floyd had a far more radicalizing effect on the Left than Garland being denied a seat.

Politics is of course a two-way relationship, but if we were to arbitrarily tally up norms broken in the last 30 years (or 40, or whatever), I think it would generally be the left breaking more of them. A lot of the Right's exceptions would be contained to Bush's actions over the Iraq War, with many of Trump's actions being broadly disdained by the GOP. (They wouldn't even let him declare an emergency to build a border wall.)

Clarence Thomas and Brett Kavanaugh (and perhaps even Amy Comey Barrett) were subject to far more contentious nominations than anything Democratic appointees have ever been subject to.

The difference being that those are names of 3 Supreme Court justices.

Yes, the Democrats did reject one Republican nominee 35 years ago. But he was rejected after an open and pulib hearing and vote, and then the next Republican nominee that replaced him was unanimously approved. Reagan still filled his seat.

The issue is not that Garland had a contentious hearing, or even that he was not confirmed at his hearing. The issue is that he had no hearing and no vote, the Republicans just pretended he didn't exist.

There has indeed always been acrimony and fighting over SC seats, and using the rules to ratfuck the other party wherever possible.

But this one went beyond the established rules in a way that was genuinely surprising/baffling/outraging to people at the time. A big fight with lots of mud slinging and feet dragging was expected, what happened was just weird

And as such, I really do believe it expanded the borders of what types of ratfucking and acrimony could be reasonably entertained.

  • -10

If he had a hearing but they never were going to vote yes would that have satisfied you?

If they then went on to unanimously elect Obama's next nominee, which is what happened in the Bork case, then sure, that would be fine.

Bork's rejection was unprecedented and for fundamentally political reasons. You can argue why you think it was justified, but that's not the relevant question: we're talking about the long-escalating fight over norms. As such:

But this one went beyond the established rules in a way that was genuinely surprising/baffling/outraging to people at the time.

This was also true of Bork's hearing. Everyone admitted he had one of the finest legal minds of his generation and was immeninently qualified to sit on the Supreme Court. (It is the ultimate irony that it was Biden who lead the push against Bork at the time, and has had to deal with the consequences.)

I don't doubt that Republicans' treatment of Garland was an escalation, although I quibble with some of these details. (I always hear it said that it was appaling that the GOP never even held hearings -- but I don't think, if they had voted no after some show trials, that it would really have helped anyone feel better.)

I'm also not arguing here that Democrats are uniquely bad and Republicans have never fouught back. But in the modern context I don't think the Garland nomination is this uniquely radicalizing moment. Probably in the top ten. Maybe it cracks the top five.

I always hear it said that it was appaling that the GOP never even held hearings -- but I don't think, if they had voted no after some show trials, that it would really have helped anyone feel better

If they had voted 'no', and then unanimously voted yes on Obama's nest appointment, as is what actually happened with Bork, people would have felt a lot better.

No one is particularly attached to Garland in particular, they're attached to the seat.

They wouldn't have voted yes on Obama's next appointment. They made it clear that they wanted the seat, not to slight Garland specifically.

I'm not saying Republicans didn't really do anything provocative. I'm saying that the specific is irrelevant.

when Reps stole a Supreme Court seat

Stole from whom, exactly? Who did that seat belong to? Because from my recollection, the Senate, that august body of 100, decided through its rules that they didn't like the nominee enough to even bother voting on him. And it is the Senate that gets to decide who sits on the court. If the seat is said to belong to anyone, or any group, it surely belongs to the Senate, and they did with their property exactly what they wanted done with it.

Stole from whom, exactly?

The president gets to nominate SC justices. Customarily (see @guesswho's remark about trust), the Senate almost always accepts them, even when the president is from an opposing party. It has rejected them on occasion (or nominees have been withdrawn when it was clear they were headed for rejection). Garland was neither rejected nor withdraw. McConnell simply refused to hold a hearing or consider the nomination.

Yes, in theory, the Senate can do whatever it wants. In reality, what McConnell did was extremely unusual, compounded by the handling of ACB's nomination making it clear that his arguments with respect to Garland were unambiguously in bad faith. If you keep mashing the defect button, don't be surprised when your opposition starts Noticing.

The president gets to nominate SC justices

And nobody is arguing that this was disrupted.

In reality, what McConnell did was extremely unusual, compounded by the handling of ACB's nomination making it clear that his arguments with respect to Garland were unambiguously in bad faith.

It was perfectly usual, in that it was the usual escalation that can be traced back to Bork, at the very least. This was thirty years of chickens coming home to roost, and was perfectly in line with previous escalations from both sides.

If you keep mashing the defect button, don't be surprised when your opposition starts Noticing.

YES! THAT IS EXACTLY WHAT HAPPENED! Except it was the Republicans who finally Noticed, and truly defected rather than be played for chumps.

You still haven't answered the question. To whom does the stolen seat belong? From my perspective, it belongs to Gorsuch, because he's the one who the Senate confirmed.

All of these problems are directly downstream from 17A, by the way.

And nobody is arguing that this was disrupted.

I am. I'm arguing it. Obama nominated a candidate and McConnell sat on it for a year.

it was the usual escalation that can be traced back to Bork, at the very least

Bork always gets wheeled out as the excuse, but it's total bullshit. Bork was rejected (unusual but far from unprecedented) and replaced with... another Reagan nominee. Who was confirmed. In other words, what we'd expect to happen. If McConnell had specific issues with Garland as a nominee, he should have held a hearing and voiced them. Of course, he didn't, because he didn't have a problem with Merrick Garland. He openly declared he wasn't going to consider any nominee.

You still haven't answered the question. To whom does the stolen seat belong?

The seat doesn't 'belong' to anyone because it's not a piece of property, but by long-standing American political norms it was Obama's prerogative to fill the seat. Word games and playing dumb about idiomatic use of the word 'stole' can't duck the GOP's flagrant breach of trust.

Except it was the Republicans who finally Noticed, and truly defected rather than be played for chumps.

That would imply that the Republicans weren't defecting constantly, when in fact that was pretty the standard playbook since the end of the cold war.

Obama nominated a candidate and McConnell sat on it for a year.

So what?. Obama nominated someone and sent the nominee to the Senate. The Senate didn't confirm the nominee, and made it clear he wouldn't be confirmed at all. It was Obama's prerogative to nominate someone, and he could have withdrawn the nomination and tried someone else, but chose not to in order to make people like you think that it was somehow stolen.

The seat doesn't 'belong' to anyone because it's not a piece of property, but by long-standing American political norms it was Obama's prerogative to fill the seat.

It doesn't belong to anyone, and it was not stolen. The President nominates, the Senate fills. There's no reason why the Senate must consider any nominee, and may reject or refuse to consider any of them as they please. This is called the separation of powers, and while it hasn't had a good time of things, there are still some places where it is relevant.

Your political norms are just that, norms, not law, not even rules, and certainly not constitutional directive. They were broken when Bork was rejected on ideological grounds, rather than competency grounds. That was the first major escalation, and it has gone back and forth since then. Other norms were violated and are no longer normal. Of course the latest round is more significant than the original offense, that's why it's escalating.

That would imply that the Republicans weren't defecting constantly, when in fact that was pretty the standard playbook since the end of the cold war.

Better than implying it's only Republicans defecting, when it is clearly tit for tat. I'd be much more sympathetic to the Democrats if it wasn't their party who reduced the Senate threshold for nomination in order to appoint dozens of Obama judges, but I understand they did that in order to get around disagreements from the minority who would not confirm those judges. To get hoisted by your own petard is shameful enough, there's no need for further griping.

More comments

Yeah and the august body that is the Colorado Supreme Court decided that Trump is ineligible, what’s your point? Both actions are ‘legal’ (albeit in the latter case for now).

Because from my recollection, the Senate, that august body of 100, decided through its rules that they didn't like the nominee enough to even bother voting on him.

... No, that's not what happened.

It's exactly what happened. The Senate chose not to vote on one nominee, which is their right. All 100 members voted on the rules for that session, and all 100 members voted on who would lead them. The leader followed those rules and simply chose not to vote on an undesirable nominee.

You didn't answer my question, though. From whom was the seat stolen? To whom did it belong? You seem to think Obama was entitled to it, that YOU were entitled to it, but I'd rather hear you speak for yourself.

FWIW I have a similar feeling. The Supreme Court seat was a major move, and just because I have benefitted from it doesn't change the reality of how serious it was. Much of this feels downstream of that.

It should be apparent by now that Garland was not the middle-of-the-road moderate he was painted as in the media. Nothing stopped Obama from nominating someone more palatable to the Senate.

That's true, but it's immaterial to the gamesmanship of refusing to confirm a justice. The people doing it weren't seers predicting the future, they were changing precedent around confirmation as a political trap card.

Who do you imagine the congressional/senate GOP would have approved of? It’s clear they wouldn’t accept anyone who didn’t appear likely to reverse Roe, which was obviously the red line.

I think they would have approved Neil Gorsuch.

Obviously Obama didn't want to nominate Gorsuch, which was his prerogative as President. But it's obviously untrue that the Senate would have rejected any possible nomination.

I don't think that's clear, and if that's the case, the obvious political move would be to nominate somebody who leans conservative on most issues except Roe to reduce the expected payoff of the gamble they were taking.

It’s only a major move because we don’t actually live in a rule of law land at that level. Realistically words should have meaning but “living constitutional theory” meant the SC could just do whatever they want and act as a legislative body.

The GOP didn’t do that. The Dems created a whole philosophy that turned the SC into more than it was suppose to be. The GOP didn’t make the SC the supreme legislative body.

We can reach back as far as we want to figure out who the real villain is but, realistically, it's just an escalation of what's been going on forever. The Warren Court was another major episode/era of course, but there have been more.

I just think it'd be foolish to not recognize how angry this move made Democrats and how it may have changed their approach. Many of them called for far more aggression in the aftermath.

This is useful if one recognizes that moves can also make republicans angry and change their approach. Specifically, it is useful in that it shows you that the escalation spiral cannot be halted or controlled by the available levers of social policy, with disaster the likely outcome.

Likewise, it is useful if one does not recognize the above. In that case, it is useful in that it cements a narrative that Republicans are the bad guys, by promoting the unspoken norm that it's only an escalation when Republicans do it.

Neither the Dems nor the GOP did that. The Supreme Court has been supreme since 1803, and it's always been calvinball because it can't not be.

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