Tweet Share Share Comment Last Thursday, the Supreme Court heard oral arguments in Trump v. Anderson—a case raising the question of whether the state of Colorado could take former President Donald Trump off the ballot as a result of its determination he had participated in the insurrection on Jan. 6, 2021, seeking to keep the 2020 election from being certified. Those oral arguments revealed a lot about the justices’ declared commitments to the primacy of originalism and also reflected a newfound obsession with consequences. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, joined Dahlia Lithwick on this week’s Amicus to discuss why his organization pursued what many deemed to be a long-shot case and what it looked like when the court appeared ready to knock it away for pragmatic, as opposed to 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 to have the first question at oral argument come from Clarence Thomas, whose wife was at the rally that day and sending texts to Mark Meadows and trying to get state representatives to change slates of electors. This is the bread and butter of what your work has been throughout the Trump era—this kind of ethics question. It seems as though, hovering over this conversation about what the court will do and should do as the court was being asked to let Colorado take Trump off the ballot, there’s a side conversation that is not somehow a center conversation about Justice Thomas hearing this case. And it’s a side conversation because there’s nothing to be done about it.
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Noah Bookbinder: CREW has been very, very clear about our views of recusal and Supreme Court ethics in the past. I think right now we are looking at this as litigants, and we are hoping that all of the justices who are considering this case, they are considering it fairly and with an open mind. And we believe that they will.
The last thing I will say, though, is that this question—and the answer I’m giving, frankly—is an illustration of why the system of leaving it up to litigants to challenge justices as potentially conflicted doesn’t make any sense. Of course that’s not going to work. And leaving justices to make that determination doesn’t make any sense. You need to have some kind of outside body who can evaluate those kinds of questions. Do you know people who don’t have an interest in a particular case? People that that will actually make life easier for the justices? They’re in an impossible position of judging their own objectivity. This doesn’t make any sense, to leave it to the person whose case is going to be decided by a judge, to raise the issue of whether that judge is the right person to decide it, and it would be good to have a different system.
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Read More I want to ask you whether this lawsuit—which I think we can agree was hardball by anyone’s standards and not, I think, what CREW initially conceived of as its mission—I’m wondering if, after arguments, it feels like it was worth it, even if it cannot or will not or may not establish the former president as an insurrectionist, or actually put into effect the drafters of the 14th Amendment’s clearly stated goal of keeping those who swore an oath and then attacked the country from having a second chance to do that? You’ve said so eloquently: “We did this because we had to do it. It had to be done.” I wanted to give you a chance to end where you began, which is by answering: What did this litigation mark and achieve, not just for you as CREW, but for the country, in a way that is more important than whether it turns out to be 7–2 or 6–3?
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We are still very much hoping that the justices are going to go back and read those briefs and consider that argument and ultimately do what we believe the Constitution requires. I know that wasn’t the takeaway from most analysts, but that’s 100 percent where we are.
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Secondly, I do not waver for a moment on this having been worth everything that went into it. And there are a number of reasons for that. One is that, regardless of what happens, this issue of Donald Trump having worked to keep himself in power after losing an election and inciting a violent mob to do that, which is the antithesis of what democracy stands for, is going to continue to be put in front of the American people as something central they need to think about with regard to Donald Trump, and with regard to American democracy.
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Everybody’s tendency is to look away from this and pretend it didn’t happen, and one of the functions of this case is that it makes it impossible to look away and pretend it didn’t happen. That, in and of itself, is incredibly powerful. I also think that this brings this provision of the Constitution back, and regardless of whether it’s used in this case, it’s going to be litigated, it’s going to be legislated about, it’s bringing life back to this part of the Constitution that was put in there specifically to protect democracy.
Doing this work keeps it from becoming dormant in many ways, regardless of what the Supreme Court decides. I do not think they’re going to decide it in a way that ends this as an active piece of American law. And the final piece, I will say, is that the threat to American democracy is existential. And I do not think that anybody’s going to look back and regret the things they did to try to save democracy. People may look back and regret the things they didn’t do.
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Tweet Share Share Comment Last Thursday, the Supreme Court heard oral arguments in Trump v. Anderson—a case raising the question of whether the state of Colorado could take former President Donald Trump off the ballot as a result of its determination he had participated in the insurrection on Jan. 6, 2021, seeking to keep the 2020 election from being certified. Those oral arguments revealed a lot about the justices’ declared commitments to the primacy of originalism and also reflected a newfound obsession with consequences. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, joined Dahlia Lithwick on this week’s Amicus to discuss why his organization pursued what many deemed to be a long-shot case and what it looked like when the court appeared ready to knock it away for pragmatic, as opposed to 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 to have the first question at oral argument come from Clarence Thomas, whose wife was at the rally that day and sending texts to Mark Meadows and trying to get state representatives to change slates of electors. This is the bread and butter of what your work has been throughout the Trump era—this kind of ethics question. It seems as though, hovering over this conversation about what the court will do and should do as the court was being asked to let Colorado take Trump off the ballot, there’s a side conversation that is not somehow a center conversation about Justice Thomas hearing this case. And it’s a side conversation........
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