DCHawk1 wrote: ↑Thu Feb 08, 2024 1:12 pm
jfish26 wrote: ↑Thu Feb 08, 2024 1:07 pm
DCHawk1 wrote: ↑Thu Feb 08, 2024 1:03 pm
Agreed.
The Colorado solicitor was...well...not good.
You asked earlier if I would be sad if the Court finds against my view. I will absolutely say that I found it sad that the Colorado SoS was
significantly stronger in a post-arguments interview than her lawyers were in front of the Court.
What I was getting at -- too snarkily -- is if it will change your mind at all if the majority includes more than just the "conservatives" (i.e. Roberts) and even more than the R-appointees. If Kagan makes it 7-2 or Kagan and Sotomayor make it 8-1, does that give the decision legitimacy?
And my response - too snarkily, also - could also have been that I think you're really asking multiple related questions that, to me, do not necessarily have the same answer.
Let's take the Court's legitimacy
generally off the table; I think you and I might have differing opinions on things like whether the Court's composition at present is fundamentally legitimate, whether Thomas should have recused, and so on.
So, just the matter at hand.
I think there is a difference between an incorrect holding, and an illegitimate one; I think holding that Trump is not disqualified is incorrect, but not necessarily illegitimate. Conversely, I think holding that Trump is categorically immune from criminal culpability would be illegitimate (in addition, obviously, to being incorrect).
So my opinion on this holding will be dependent on what is actually, specifically
held. I would be very surprised if what is actually, specifically
held is something I consider illegitimate.
But my opinion will not be dependent on the scoreboard, or who is on what side. As you know - almost certainly better than I do - how I would interpret the Constitution here is really more consistent with traditional
conservative principles than liberal ones. So, no, Kagan (or Brown-Jackson or Sotomayor, or a combination of some/all) finding "against" my interpretation would not necessarily sway me.
And that's for primarily three reasons.
First, as I've been clear from when we started discussing this, I am
expecting the Court to - whether or not it is willing to say it out loud - succumb to political motivations not to be seen as "deciding" the 2024 election, at least
on the facts and posture presented by this case. Especially with as poorly as the Colorado side did today, why exactly
would a disqualification-leaning justice (whose side doesn't have the votes) stick her neck out? Strategically, the play is probably to let this holding be issued on non-substantive grounds (and keep powder dry for a possible second (or third or ninth) look, but on different facts and posture).
Second - and you may ALSO know this stuff better than I do - oral arguments are not where the real work here is done. I've read both sides' briefs, and certain of the supplemental briefs. My confidence in the thoughtful, sober, historical and legal analyses contained in the supplemental briefs authored by conservatives in favor of disqualification would not necessarily be shaken by a holding with a
result contrary to the result called for in those analyses.
Third, and of course I'm allowed to
say whatever I want, but I am being genuine: I am not looking at this issue from a partisan standpoint; I have made no secret that I do not want ANY R to win in 2024. The Court holding in "my" favor on this matter would be detrimental there. So the composition of HOW the nine votes are divided is not really relevant to me.
My view isn't set in stone. It's based on my reading of 14A-3, as informed by the briefs and analyses I have read. It is certainly possible that the written opinion(s) will include analysis that changes my mind. And I have an open mind to that - regardless of author.