Thread by @rparloff

Some reactions to today’s 2-hr oral argument before the Colo supreme court on whether to keep Trump off ballot as insurrectionist. I thought 2 of the 7 were leaning to disqualify, but the others I couldn't read. (All 7 were appointed by Democratic governors.) ...
/1

If Trump wins, it won’t be on Judge Wallace’s grounds—that presidents aren’t covered by § 3 of 14th Am. Though I bent over backwards below to avoid calling those claims “absurd,” at least 2 justices were not as charitable ...
/2
bit.ly/3Ruyv2F

Justice Richard L. Gabriel asked: ~How is it not absurd to say that anybody who engaged in insurrection can’t serve except the president or the vice president? How is that not absurd?
/3

... Justice Monica Márquez: Return to absurdity argument. They set up a provision that punishes those who break a lesser oath—and not those that break the more stringent oath??
/4

...
Márquez: [Give me a] rational reason.
Trump lawyer Scott Gessler: The historical record is devoid of that discussion.
Marquez: There’s a lot of historical evidence to contrary. What’s the rational basis? A rationale? Why?
/5

...
Gessler: The president is different. If everyone in the country chooses him­—
Justice Maria Berkenkotter: So if everyone chose [Confederate pres] Jefferson Davis that would be fine under § 3? Consistent with its purposes?
Gessler: That would be the rule of democracy.
/6

My impression was that if Trump still wins, it will be on either technical state law grounds or “prudential” political question/justiciability grounds. Most justices didn’t seem to doubt that there was an insurrection & that Trump engaged in it. ...
/7

Justice William Hood III: I don’t know that we have to come up with a test that addresses all circumstances. Why isn’t enough that a violent mob breached the Capitol when Congress was performing a core Constit'l function. Why isn’t that a poster child for insurrection. ...
/8

... The 2 biggest hurdles seemed to be Colorado election law issues and federal justiciability issues, esp. concerns about “chaos” if some states have Trump on ballot & some don’t. Eric Olson, a @CREW atty rep’ing the voter-petitioners, struggled to allay these concerns....
/9

@crew Finally, Justice Hood, offered him a lifeline: Isn’t part of the answer that if we say he can’t be on the ballot, SCOTUS would step in [and decide the issues] & there wouldn’t be chaos? ...
/10

@crew ... Hood also suggested that failing to resolve this issue now might create even greater chaos in 2025. He asked: Isn’t it better to resolve this sooner than after next election?
/11

@crew ... Surprisingly to me, the justices did *not* spend much time on the claim that § 3 is not “self-executing” without Congressional enforcement legislation—the controversial 1869 holding of Chief Justice Salmon Chase acting as a circuit court judge. ...
/12

@crew ... Justice Melissa Hart noted that § 3 talks about how Congress can remove the disqualification, but says nothing about any need to *create* disqualification. Hart: Doesn’t that suggest [that disqualification] attaches independent of congress? ...
/13

@crew Trump lawyer Scott Gessler repeatedly returned to the idea that democracy must prevail. But @CREW atty Murray countered that Jefferson Davis had a lot of popular support too. He and his @CREW colleague, Eric Olson, emphasized the fragility the Constitution’s fragility. ...
/14

@crew Murray: [The Constitution] has no army. No police force.
Olson: § 3 is our Constitution’s self-defense mechanism. Those who took an oath, then betrayed that sacred duty by engaging in insurrection cannot again be entrusted with public office.
/15-end