Another Festivus Miracle!

I had thought of doing something on pop culture leading into Christmas/New Year’s, but I wanted to give my opinion on the Colorado Supreme Court upholding a suit to bar Donald Trump from running for President in that state on the grounds of the 14th Amendment. Special Counsel Jack Smith, smelling an opportunity, asked the US Supreme Court to expedite a ruling after the Trump team had already appealed, but this Friday the Court gave a unanimous decision pawning the matter off to the Court of Appeals for DC.

Like it matters. If the courts don’t give King Donnie the ruling he wants, he’s going to keep going up the ladder to SCOTUS so that his justices will give it to him.

So for snap analysis: It’s almost certain that the three liberal women – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – would rule against Trump. It is also almost certain that Clarence Thomas, whose wife Ginni petitioned to help the coup followers, would find some way to rule for Trump.

And then you have Chief Justice Samuel Alito. The 14th Amendment seems to be plain and clear language, but the whole premise of Dobbs v. Jackson is that the 14th Amendment is plain and clear language, but its meaning opposed Alito’s political agenda, so he just pretended that the Amendment didn’t apply.

This leaves the other four “conservatives” – Chief Justice (in name only) John Roberts and the three Trump appointees, Neil Gorsuch, Brett Kavanaugh and Amy Comey Barrett, all of whom have ruled against Trump in the past, notably in a case before January 6, where Texas petitioned to throw out the election results in four states and it was ruled that Texas did not have standing to challenge another state’s election procedures.

To recap: The 14th Amendment states in Section 3, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. “

The case was originally taken to the Colorado courts by a coalition supported largely by NeverTrump conservatives. Previously District Court Judge Sarah Wallace had made a ruling that Trump had committed insurrection but was still eligible to run for office because the wording of the Amendment didn’t specifically bar running for President. And as many of us would point out, that position would mean that Nathan Bedford Forrest or Jefferson Davis or some other Confederate that the law was written for would be barred from running for Senator but NOT President.

Wallace’s ruling created an artificial dichotomy. It actually would have been more fair to rule completely in Trump’s favor and say that his free speech and actions on January 6 did not constitute insurrection and therefore he is not barred by the 14th Amendment. If one has decided one matter (is Trump an insurrectionist?) then that decides the other matter. If it is established that one is an insurrectionist then one is ineligible to “hold any office, civil or military, under the United States”. This was the logical finding of the Colorado Supreme Court.

It has also been stated by Laurence Tribe and other judicial scholars that the 14th Amendment is “self-enforcing” – that without the mentioned two-thirds vote of each House, the candidate in question is necessarily ineligible under the Constitution, just as one is ineligible to run for President at younger than 35 years old, and just as, under the federal Constitution, Arnold Schwarzenegger could run for Governor in California under its laws but not run for US President because he was not born in this country.

The Amendment is however not self-enforcing in that it has not clearly been established that Trump (or some other person) has committed insurrection, which is why the courts need to take this up. So, had Trump by his actions concerning the 2020 election, “engaged in insurrection or rebellion against (the Constitution of the United States) or given aid and comfort to the enemies thereof”?

Well, after Mike Pence refused to certify Trump’s fake electors, Trump twitted that “Mike Pence didn’t have the courage” to do right by him and suddenly the crowd at his rally got even more violent and started chanting “HANG MIKE PENCE!” Coincidence? Well, given how many of these people thought to bring zipties, riot gear and a hanging scaffold to the proceedings, probably not.

Of course given that, as with Schwarzenegger being elected Governor, states can do as they will in their own sphere, the appeals court or SCOTUS could simply uphold the Colorado ruling as applicable only there (and Colorado is a liberal state where all the Supreme Court justices were Democrat appointees, so not like Trump was likely to win there anyway).

But wait – wouldn’t leaving the matter up to individual states mean some keep Trump on the ballot and some wouldn’t? Wouldn’t that undermine the chances of winning the Electoral College even if Trump states affirmed his right to run? Wouldn’t that be CHAOS? Well, Samuel Alito has made clear that it is not his job to care about the direct consequences of taking a national matter and leaving it to be decided by individual states, it is only his job to rule as he sees fit. Fiat justitia ruat caelum.

It is assumed (by Trumpniks and liberals who take them seriously) that any ruling against Trump’s sacred right to run for an office that he plans to abolish once he gets power will undermine Americans’ trust in government. Of course every time the Party of Trump says that no one trusts the government, they are eliding the question of who is generating that mistrust. Contrary to their position, the feds are not going to turn McDonald’s vegan, and they are not forcing white girls to have sex with dark-skinned guys who will get them pregnant, arrange for government-funded abortions, and then raise the abortions as trans. If anything, you talk to the “progressives” and they will tell you that the Biden Administration isn’t radical leftist enough. Perhaps because the Administration, unlike the radical leftists, do not think that the radical left in America is a majority with a mandate.

The reason that no other candidate is being treated like this is that no other candidate has acted like this, because other candidates knew that acting like a five-year-old wannabe Czar was not going to work. As I say, we are not dealing with white privilege, we are dealing with orange privilege, because not even other rich white people get a free ride as much as Trump does. Ask Sam Bankman-Fried.

And then there’s the otherwise valid matter that we should be leaving the matter of Trump’s fitness for voters to decide. First off, this is blanking out the point that the people DID vote on Trump after he was impeached the first time, and they wanted him out.

Republicans say, we’re not allowing “the people” to vote? Are these the same Republicans who sneered at Clintonoids when they lost the Electoral College that “it’s a republic, not a democracy”? Aren’t these the same Republicans who whined when the Dollar Store Duce got impeached the first time, wailing that Democrats were “thwarting the will of the people”? Weren’t they the same ones who supported their boy after the January 6 coup attempt, thereby showing what they think of the popular will AND the Electoral College?

In fact, the whole reason we have all these counter-majoritarian institutions like the Electoral College and the 14th Amendment – and liberals, you need to read this too – is precisely to make sure we do not elect a criminal (and/) or unqualified moron President just because he got the most votes.

The irony being it used to be “conservatives” who correctly assessed liberals in government granting the President and federal government all sorts of powers they did not have in the original interpretation, while liberal Justices and legal scholars interpreted the Constitution as “a living document” that could be interpreted according to contemporary mores, in practice meaning, however the people in charge wanted government to be. Now in practice it’s the alleged conservatives who are interpreting the Constitution according to their contemporary standard, not “presidents have term limits”, “presidents are subject to the law” or “insurrectionists are ineligible to serve in federal office”, but according to the living document of the Republican Constitution, which is “Donald Trump was sent to us by Heaven, like Vishnu incarnating as Lord Buddha to enlighten the masses, lo, he shall reign o’er us forever and ever- ergo, Donald Trump can do whatever he wants.”

You can only rely on this Court to do what it thinks best for this Court, and most of the time that means a reactionary agenda. But again – you can count on the three liberal women to vote against Trump. You can count on Thomas and almost certainly Chief Justice Alito to go for Trump. That means the balance is with the other four, Roberts, Gorsuch, Kavanaugh and Barrett, who are certainly willing to promote the reactionary agenda but also seem to have some grounding in reality. And that means asking themselves if the reactionary agenda is best served by allowing a candidate who would almost certainly make the Court obsolete if he is allowed to run again and gets back into power. And they, like every other “conservative” who had a chance to call Trump to account and refused to do so before now, have to ask if they’re any safer as Trump’s step-and-fetch boys than standing up to him and risking the wrath of Meal Team Six. Ask Mike Pence and Lindsey Graham how that works.

If “conservatives” didn’t want to be in that situation, well, maybe they shouldn’t have put all their bets on the horse who is not only a raging authoritarian but a raging incompetent at it.

Happy Festivus, everyone. The Airing of the Grievances will continue until Trump is put in prison where he belongs.


EDIT: The case that SCOTUS sent back to the Court of Appeals was not the Colorado 14th Amendment case, it was the case on Trump’s claim of presidential immunity.

I regret the error. Specifically, the error of Trump being president.

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