En Bonkers Opinion

The meaning of words is up for grabs.

By and
139

Sarah and David attend to AO housekeeping before diving intoย some creative 20th Amendment theories. Plus:
โ€”The distinction between law violation and norm violation;
โ€”Trumpโ€™sย prosecutorial immunity and legal yay’s;
โ€”The role of Congress in determining eligibility for office;
โ€”A prosecutor working for both sides of the bench;
โ€”Judge Hoย concursย in an employment discrimination case;
โ€”More employment discriminationย out of the 11th Circuit; and
โ€”The misguided war on the SAT.


Show notes:
– Lake Beach 

By and
Comments (139)
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  1. Avatar photo
    Blake Fischer

    I just noticed something - who did you all pay to sort the Podcasts menu on TheDispatch.com to have Advisory Opinions at the top? Sure, some would point out that they're simply alphabetical, but none of the other menus are. Sneaky.

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  2. Avatar photo
    PaulH

    I am not sure that there has been that much confusion over the word "diversity" -- it has been used in academic and corporate hiring settings for decades to mean affirmative action based on race or other identity criteria (in, other words, discriminating in favor of certain groups). Whether this is good or bad or whether notions of diversity should be more encompassing has been debated, but I don't think there has ever been an disagreement (from either side) about what was meant in practice.

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  3. Jrtownson

    Sarah, Im hoping you are working on a deep dive into the Derek Chauvin trial and verdict. Given what I have seen and heard from The Fall of Minneapolis documentary and other podcasts it seem like Chauvin did not get a fair trial and there is plenty of reasonable doubt. Does he have a chance for another appeal?

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  4. Richard A Schafer

    The 20th amendment argument is interesting, but I'm curious: Section 3 says the VP shall act as President until a President shall have qualified, and that Congress can pass a law to handle the case where neither the President-elect or VP-elect have qualified and selecting a person to act as President "and such person shall act accordingly until a President or Vice President shall have qualified." Let's say both the President and VP fail to qualify because of 14th Amendment Section 3 and Congress refuses to remove that disqualification by 2/3 vote. How does "until a President or VP shall have qualified" work in such a situation? Does Congress get to tell the electors to vote for someone else, essentially redoing the election? Does the acting President serve the entire term because there's no way to qualify anyone as President or VP? Does Congress have to have passed the law before the event "to provide for the case" or can it pass an ad hoc law when the case happens? Can it amend a previously passed statute after the fact of disqualification? If a person has already served two terms as President, the 22nd says he can't be elected to the office? Could that person run and be voted for by the Electoral College and Congress then declare them as failing to qualify?

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    1. Graeme.Edgeler

      The obvious application I can think of for this is the election of a 34 year-old as President. We have seen the equivalent in other positions: Joe Biden was 29 when first elected the Senator for Delaware (he turned 30 between the election and taking office). The disjunct was even more clear with Rush Holt Sr. who was also elected at 29 years-old, and couldn't take office until the June after the November election, once he had turned 30. Similar could apply to a President.

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  5. The.Cullens

    Or any state government?

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  6. The.Cullens

    Out of left field. Why is the state of Colorado involved in who gets the Republican nomination for president?

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  7. Adam Rosser

    Thanks for another great pod.

    I have just finished a quick read of the comments here. Very enjoyable.

    My view as a non-American (notwithstanding my interest in this topic) is that insurrection is anything which fits a general understanding as such (no need for criminal prosecution or conviction) and is inconsistent with a prior oath of office to support the constitution. In this way, the insurrection needs to be something which touches on the public sphere, not just a private protest, even violent.

    In short, my view is that Trump and many many others should be disqualified.

    However, the thing I find most interesting is the assumption that SCOTUS will be looking for a principled way to keep Trump on the ballot. To my political instincts, the best of all the bad options is for a 9-0 decision disqualifying Trump. There are solid textual/originalist arguments for it that the conservatives could adopt (even if there are also counter arguments. What could be a stronger statement than such a decision from 3 Trump appointees. It would do a lot to demonstrate that SCOTUS is not a political tool.

    Finally, I wonder if recent comments from Trump's legal team about their expectations of favourable treatment from the Trump appointees will subconsciously push those justices towards a disqualification decision.

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    1. Avatar photo
      Scarlette Tarte

      The best thing for the court is to rule "we have looked at the clause and the remedy lies with Congress".

      Anything else, keeping him in the ballot, or taking him off, will roil our country and discredit this court, forever. It will take years and years and these justices being gone to rebuild trust in it.

      The remedy IS with Congress. The court should stay out of it. They should have never taken the case. Buts since they did, they should rule very, very narrowly.

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  8. Avatar photo
    Seth B

    Getting a case before the Supreme Court is a tricky ๐‘’๐‘› ๐‘๐‘Ž๐‘›๐‘shot.

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  9. Erobrobbins

    I just wanted to respond to Sarah's comment about not knowing what sort of process the Maine Secretary of State had for disqualifying Trump. On the most recent episode of the New York Times Podcast "The Run Up" Astead Herndon conducted an excellent interview of Maine's Secretary of State in which she discusses the procedure used and thought process behind the disqualification. Might not answer all questions, but I found it helpful. The interview starts at about 26:45. Here is a link: https://www.nytimes.com/2024/01/04/podcasts/run-up-trump-eligibility-supreme-court.html?

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  10. Brab608

    I agree Bubba is not a racist term, nor is it limited to men, Southern or otherwise. My father has called me Bubba since I was a baby quite a few decades ago. It was short for Bubba Louie, the sidekick of the cartoon character. Quick draw McGraw. When I was about 30 years old, I realized Bubba Louie was a donkey! My father is 94 and Iโ€™m 62 and he still calls me Bubba. And Iโ€™m fine with that.โค๏ธ

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