Last Thursday, the Supreme Court heard oral arguments Trump vs. Anderson– a case raising the question of whether the state of Colorado could remove former President Donald Trump from the ballot due to its determination that he participated in the January 6, 2021 insurrection, seeking to prevent certification of the election of 2020. These oral arguments revealed much about the justices’ stated commitments to the primacy of originalism and also reflected a new obsession with consequences. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, joined Dahlia Lithwick on this week’s Amicus to explain why his organization pursued what many considered a long-shot case and what it looked like when the court appeared ready to reject it. for pragmatic rather than constitutional reasons. Our conversation has been edited for length and clarity.
Dahlia Lithwick: I just wanted to give you a moment to talk about what it means that the first question during oral argument came from Clarence Thomas, whose wife was at the rally that day and was texting Mark Meadows and trying to ‘obtain state representatives. to change the electoral lists. That’s the core of your work throughout the Trump era: these kinds of ethical questions. It seems that above this conversation about what the court will and should do when asked to let Colorado remove Trump from the ballot, there is a parallel conversation that is somehow not a central conversation about Judge Thomas hearing this case. . And it’s a side conversation because there’s nothing that can be done about it.
Noah bookbinder: CREW has been very, very clear on its views on recusal and Supreme Court ethics in the past. I think right now we’re looking at this issue as litigants, and we hope that any judges who look at this case will look at it fairly and with an open mind. And we think they will.
The last thing I will say, however, is that this question — and the answer I give, frankly — is an illustration of why the system of leaving it to litigants to challenge judges as potentially being in conflict makes no sense. Of course this won’t work. And letting judges make that decision makes no sense. You need to have some kind of outside body that can evaluate these kinds of questions. Do you know people who are not interested in a particular case? People think this will make life easier for judges? They find themselves in an impossible position to judge their own objectivity. It makes no sense to leave it to the person whose case is going to be decided by a judge to raise the question of whether this judge is the right person to decide, and it would be good to have another system.
I want to ask you if this trial – which we can agree was tough by anyone’s standards and not, I think, what CREW originally intended as its mission – I wonder if, after the arguments, I feeling like it was worth it even if he can’t or won’t or can’t establish the former president as an insurrectionist, or actually implement the framers of 14th Is the clearly stated goal of the Amendment to prevent those who took the oath of office and then attacked the country from having a second chance to do so? You eloquently said, “We did this because we had to.” It had to be done.” I wanted to give you a chance to finish where you started, which is to say by answering: what has this litigation marked and achieved, not only for you as a CREW, but for the country, in a way that is more important than whether it turns out to be 7-2 or 6-3?
We still hope that the justices will read these briefs, consider this argument, and ultimately do what we believe the Constitution requires. I know that’s not what most analysts have said, but we are 100% on it.
Secondly, I have no doubt in my mind that this is worth everything involved. And there are several reasons for this. The first is that, whatever happens, the issue of Donald Trump striving to stay in power after losing an election and inciting a violent mob to do so, which is the antithesis of what democracy represents, will continue to be relevant. presented to the American people as a central element that they must think about in relation to Donald Trump and in relation to American democracy.
Everyone’s tendency is to look away and pretend it didn’t happen, and one of the functions of this business is that it’s impossible to look away and pretend it didn’t happen. was not produced. That, in itself, is incredibly powerful. I also think it brings back that provision of the Constitution, and whether it’s used or not in this case, it’s going to be litigated, it’s going to be legislated, it brings back life to this part of the Constitution which has been put in place. there specifically to protect democracy.
Doing this work keeps it dormant in many ways, regardless of what the Supreme Court decides. I don’t think they’re going to decide in a way that will end this law as an active part of American law. And the last element, I will say, is that the threat to American democracy is existential. And I don’t think anyone will look back and regret what they did to try to save democracy. People can look back and regret things they didn’t do TO DO.
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