How Could So Many Great Lawyers Have Been So Wrong?

Legal lions largely saw President Trump’s disqualification as as a done deal, but the Supreme Court had some questions.

AP/J. Scott Applewhite
The Supreme Court at Washington, October 7, 2022. AP/J. Scott Applewhite

After the Supreme Court’s shredding of Colorado’s effort to block President Trump from the ballot in the Centennial State, we’ve been thinking of the debacle of a case called Rumsfeld v. Forum for Academic and Institutional Rights. It centered on Columbia University’s fight to exclude ROTC from campus. It came to a head in 2005. Thirty-six law schools and hundreds of law professors sided with Columbia against the military. They lost eight to zero.

It looks like that kind of humiliation is in store for the army of law professors and other sages plumping for the idea that Colorado can, single-handedly, block Mr. Trump from the ballot under the 14th Amendment. This time the whole country listened as the lawyers for Colorado and a group of citizens floundered before the Nine. It might yet turn out that Colorado’s decision to disqualify Mr. Trump will find nary a single justice’s support.

If that happens, the question will become: How could so many of the greatest legal luminaries and journalistic sages have been so wrong? How could they have missed that the 14th amendment’s disqualification clause  doesn’t cover the president? That it isn’t self-executing? That a single state couldn’t act on its own to throw the whole national election into disarray? And that — to mark Justice Jackson’s wonderful poser — it could ignore the voters?

The runup to the Supreme Court yesterday included all sorts luminaries of the law bruiting about how Mr. Trump was soon to be disqualified. One of them, Judge Michael Luttig, characterized as “fatuous” the arguments made to the Supreme Court opposing disqualification. No less a figure than Professor Laurence Tribe agreed with Judge Luttig that the pro-disqualification arguments were “unassailable.” 

Those cringe inducing quotes have been well marked by Jonathan Turley. Law professors Michael Baude and Michael Stokes Paulsen, in a dispatch for the University of Pennsylvania’s law review, write that reports of the demise of the disqualification cause are “greatly exaggerated.” They reckon that the disqualification clause is a “valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution.”

Messrs. Baude and Paulsen lauded the clause’s consequences as “breathtaking.” They took the position that Mr. Trump “is no longer eligible to the office of Presidency.” On MSNBC Thursday, Judge Luttig went so far as to call Trump v. Anderson the “most historic constitutional and political case in all of American history.” Never mind Marbury. He warned that the “Supreme Court finds itself in a very precarious position.”

Judge Luttig predicted the justices would be “looking for all legitimate off-ramps to decide that the former president is disqualified.” Far be it from us to gainsay all these worthies, but the justices sounded like the off-ramp they sought is one leading to a reversal. Asked Justice Kagan: “What’s a state doing deciding who other citizens get to vote for president?” Justice Jackson declared that “they were listing people that were barred, and the president is not there.” 

Why, that is the very position of the constitutional scholar Donald J. Trump, who understands that neither he nor any other president is an “officer of the United States” subject to disqualification. We asked another scholar, Joshua Blackman, a skeptic of disqualification, what accounts for the seemingly misplaced certainty of the learned sages. He chalks it up to “elites who travel in the same circles” having become convinced that Mr. Trump is “automatically disqualified.”

Professor Blackman dubs as “whacko” the idea that the court’s liberal flank, so vigilant on voting rights, would countenance the bludgeoning of the central role of the voters — and their interests. Congressman Jamie Raskin, though, told CNN in respect of disqualifying Mr. Trump that the “plain text of the Constitution could not be any clearer.” He marked this moment as one that presented the Nine the opportunity to “behave like real Supreme Court justices.” 

Which brings us back to Rumsfeld. At the high court yesterday, we heard real justices, of every ideological stripe, leave the case for disqualification in ribbons. Justice Sotomayor may yet side with Colorado. It would be in the spirit of the Great Sanhedrin, which wouldn’t hand down a capital sentence if the rabbis were unanimous — lest the absence of a dissent indicate an inadequate defense. So maybe our leftist law professors have a role after all.


This editorial has been expanded from the bulldog.

The New York Sun

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