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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie?
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I feel like crap. How are you?
J. Aughenbaugh: I'm sorry to hear that.
N. Rodgers: Every time the seasons change, I sound like this. I'm sure that long-time listeners are like, it's the spring cold, it's the fall cold because it's just a function of my body going, 'I don't like weather of any kind.' Part of me wants to move to San Diego and live where it's 72 degrees all the time. But then I think, 'But they have no seasons.'
J. Aughenbaugh: I like seasons.
N. Rodgers: Yeah. I just have to deal with but I'm glad you don't have a cold and people will know we're not recording like we used to in the very tiny, small space in the library where you have to sit close together. So yay for Aughie, he's not going to get this cold.
J. Aughenbaugh: Well, I'm not going to get it from you.
N. Rodgers: All right. I mean, you have an 11-year-old that's going to Critter Camp so anything could happen. She could come up with, I don't know, rabies. She might come up with rabies and you'll have something even worse.
J. Aughenbaugh: I see. Yeah, let's not go there because there's a bunch of shots, she'll really dislike me. I'm sorry you're feeling poor. I'm physically feeling all right, but I'm feeling a little disqualified.
N. Rodgers: I'm going to just say, we're going to here to talk in case people are wondering from the title. Like burning a house in the name of fire safety, it's a weird time in American politics.
J. Aughenbaugh: Yes.
N. Rodgers: Listeners will be hearing this in early spring of 2024 and Donald Trump has just been, the Colorado Supreme Court by a 4 to 3 vote said you can't be on the ballot. I went 'huh' and then my first call was to Aughie, can they do that? Aughie was like, well, it's complicated.
J. Aughenbaugh: Complicated.
N. Rodgers: Because that's his usual answer to everything. When he doesn't say it, Chris Saladino says it. Somebody in poly is, it's their job on any given day to say, well, it's complicated, and they all just take turns saying it to you. Tell me how this is the thing.
J. Aughenbaugh: By the time this episode airs, the number of states that will have ruled will go up significantly because the day we are recording, which is a few days before the start of the New Year, there are at least 16 cases in the United States where individuals or groups.
N. Rodgers: In the system, right?
J. Aughenbaugh: Yes.
N. Rodgers: In various stages of the system.
J. Aughenbaugh: Yes, whether it be state courts or federal courts have filed lawsuits challenging former President Donald Trump being on their state's election ballots for next year. Now listeners are probably aware that with our presidential election process, there are two stages and gratuitous self-plug for the podcast. This podcast will be doing a number of town hall events next year related to the 2024 federal elections.
N. Rodgers: Yeah, because this one's going to be exciting.
J. Aughenbaugh: They have submitted challenges to remove former President Trump from the, typically right now, the primary ballots in the various states.
N. Rodgers: Does this go back to the constitutional phrase that you have tried to teach me over and over and see, I'm going to have a partial use of it, and you're going to go, no, Nia. Time, place, and manner of elections are determined by the states?
J. Aughenbaugh: That is correct, yes.
N. Rodgers: This is the basis under which a state is saying I have the right.
J. Aughenbaugh: To decide who's on the ballot. That's right.
N. Rodgers: I got it right. Yay, see? You are teaching me, it's only taken four years.
J. Aughenbaugh: No but there's another part of the Constitution that these challengers to Trump being on the ballot are using.
N. Rodgers: Because normally you're challenged on the ballot for things like, you didn't get your stuff in on time, you didn't have enough signatures.
J. Aughenbaugh: That's right.
N. Rodgers: There's technical reasons why people don't end up on ballots it's not usually something.
J. Aughenbaugh: Constitutionally driven. These challenges are all driven by a clause of the 14th Amendment that probably most Americans before these challenges were unaware it existed. Well, with the exception of those unfortunate souls who took my constitutional law civil rights, civil liberties.
N. Rodgers: Which I have not taken and by the way, I was one of those many multitudes of Americans that was like, wait, there's an insurrection clause?
J. Aughenbaugh: Yes.
N. Rodgers: I don't get to be surprised that there's an insurrection clause because I don't have the Constitution memorized, but what does it actually say?
J. Aughenbaugh: The 14th Amendment was passed after the Civil War. Section 3 of the 14th Amendment, the infamous Insurrection Clause, and here's a quote. If any of my students or former students are listening, yes, there's actually a quote, even though I'm not a big fan of quotes. Section 3 reads, ''No person shall be a senator or representative in Congress, or elector of President or Vice President, or hold any office civil or military under the United States or under any state who have previously taken an oath as a member of Congress or as an officer of the United States, or as a member of a state legislature, or as an executive or judicial officer of any state to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.''
N. Rodgers: The 14th Amendment was ratified in 1868.
J. Aughenbaugh: Yes.
N. Rodgers: There are quite a number of years on. Like I was thinking, it's a revolutionary thing but it's not. It's a Civil War thing.
J. Aughenbaugh: Yes.
N. Rodgers: It's a response to the Civil War, it's not a response to the revolution. It comes much later.
J. Aughenbaugh: Yeah. The drafters of Section 3 of the 14th Amendment were pretty clear when they were debating.
N. Rodgers: They go into pretty strong detail here.
J. Aughenbaugh: Yeah, but they were very clear when they were debating and discussing the proposed 14th Amendment that Section 3 of the Amendment was designed to punish those Confederate officers who had previously sworn an oath to uphold the US Constitution who might want to regain government employment after the Civil War ended.
N. Rodgers: Well, yeah, because it paid well.
J. Aughenbaugh: Probably the individual or case that really drove the inclusion of Section 3 of the 14th Amendment was the case of Alexander Stevens.
N. Rodgers: There's always a guy.
J. Aughenbaugh: Yeah. He was at one point the Vice President of the Confederate government. He wanted to rejoin the United States Congress. Many of his former members in the Congress were like, whoa, dude, you can't on one hand, swear an oath to uphold the US Constitution, but then go ahead and join the Confederacy.
N. Rodgers: To secede.
J. Aughenbaugh: To secede and then when you guys lose, you want to go ahead and rejoin a body of a government that you try to take now.
N. Rodgers: I don't think that's unfair. I'm of the opinion that well, you can't get to, what do they call that? Double dipping with your chip.
J. Aughenbaugh: Yeah, right.
N. Rodgers: You stay out of the bean-dipped twice with that tortilla there, buddy.
J. Aughenbaugh: It's like when you play pool and your opponent.
N. Rodgers: Sometimes you just have to lose and then walk away.
J. Aughenbaugh: Yeah, when you're playing pool and your opponent says, I want to do over.
N. Rodgers: You're like, no.
J. Aughenbaugh: No, you don't get a do-over.
N. Rodgers: Not if you're playing for steaks, if you're playing for Fritos or something like M&Ms, we used to play poker when I was a kid. My parents let us play for M&Ms because there's not a gambling addiction involved with M&Ms, usually there's chocolate addiction, but whatever. On the serious level of being a Senator or being a Congress person, and then going away and not only going away but being the Vice President of the thing, he's not even a basic foot soldier. He's high up in the hierarchy. I can see why they'd be offended. I would have been offended too. I've been like, no. Why are you just making me crappy?
J. Aughenbaugh: To be clear though, Section 3 of the 14th Amendment is hardly ever been used. In part because most of the former Confederate officers had no desire to return to the US federal government or even state governments.
N. Rodgers: They were true believers in the cause.
J. Aughenbaugh: Yeah, they were true believers in the cause and they're the ones who fomented if you will, in the late 1800s, early 1900s, very segregationist policies, resistance to the US federal government post-Civil War.
N. Rodgers: These guys go on to make Jim Crow, basically.
J. Aughenbaugh: Yeah. In my research, I found three instances where it was used. Now, interestingly enough, the most recent was in 2022. A county commissioner in New Mexico, Couy Griffin, I love that name. He actually participated in the riot/insurrection at the US Capitol on January 6, 2021. Afterwards, he was disqualified from his position per Section 3 of the 14th Amendment. Now, Congress has only used it twice. They used it in the 19-teens to remove an anti-war lawmaker, Victor Burger, because he did not support the United States joining the World War I, if you will, effort. But then before that, and I love this name, the only other time it was applied was to a former Confederate officer, Zebulon Vance.
N. Rodgers: Zebulon. Lovely city in North Carolina.
J. Aughenbaugh: You don't get a lot of Zebs anymore. Certainly, you don't see very many Zebulons but interestingly enough, he later on was allowed to rejoin government service.
N. Rodgers: Vance or Burger? Or both?
J. Aughenbaugh: Both were.
N. Rodgers: But interesting that this guy, this commissioner in 2022 was not.
J. Aughenbaugh: Yeah.
N. Rodgers: He was booted because he was perceived to be an insurrectionist. You're going there to overthrow the electoral process of the United States.
J. Aughenbaugh: Yes. Now, he actually, was a part of the mob who broke down doors, entered the Capitol, etc. The Trump situation is different. Because with Trump, he didn't go to the Capitol. Instead, he gave a speech.
N. Rodgers: Then at the end of his speech, he said let's go, and then he got in his car and drove back to the White House. Wait, what? It's funny to me that they showed up and there was no Donald Trump and they went ahead and did it anyway. I would have been pissed. I would have left. I would've been, heck with that guy.
J. Aughenbaugh: Yeah. I mean, our leader's not here, I'm going home.
N. Rodgers: Exactly. I don't know. My fervor doesn't run that deep, I suppose.
J. Aughenbaugh: I got coffee to drink and movies to watch.
N. Rodgers: Exactly. I got to get up in the morning and go to work. This is not happening.
J. Aughenbaugh: Here's what's interesting, Nia. There are, if you will, three prominent legal issues with the Trump case. One, does Donald Trump's behavior qualify as an insurrection or giving aid to the enemies of the United States? Specifically, what's the issue is his speech on January 6.
N. Rodgers: That's quite a debate. Because the question there is, does interrupting the electoral process constitute insurrection? This is where words actually matter.
J. Aughenbaugh: Yes.
N. Rodgers: When people were describing it day of, and then they're describing it later. This is where words actually matter, where intent is important. What are you trying to do? If you are trying to overthrow election results, that looks like an insurrection.
J. Aughenbaugh: Is that an insurrection? Or, conversely, as Trump has been charged by Special Prosecutor Smith, he's never been charged with insurrection. Nia, we know that there is a specific legal definition in the Federal Code in regards to insurrection because of our Constitution Day lecture this past fall. If any of our listeners want that, send me an email, or send Nia an email. There is a recording of that lecture and you can go ahead and watch it.
N. Rodgers: You can probably find it on YouTube but yes, we're happy to help you locate that.
J. Aughenbaugh: What Trump has been charged with by Special Prosecutor Smith, is obstructing an official proceeding. Because, what was to occur on January 6th, was that the United States Congress was to ratify, the Electoral College votes taken in the 50 states.
N. Rodgers: That's an easier thing to prove than insurrection would be because insurrection is subjective.
J. Aughenbaugh: But then it begs the question. Is obstructing an official proceeding a form of insurrection, or is it giving aid to the enemies of the United States?
N. Rodgers: Either way, it's not a good look.
MALE_1: No, it's not a good look.
N. Rodgers: I'm going to say but either way, it is not a good look.
J. Aughenbaugh: The second legal issue has caused quite a bit of conflict and debate. Is the president of the United States, and remember, on January 6, 2021, Donald Trump was still the president.
N. Rodgers: Because he's president until January 21 or 20th?
J. Aughenbaugh: January 20th. Is the president an officer of the United States? Some of you might be saying, well, of course he is but go back to the language of the 14th Amendment, Section 3, the Insurrection Clause. Of all the people who are listed, in Article 3, the President of the United States is not listed.
N. Rodgers: I would argue that they just assumed that because the President stands up and takes the oath of office in front of a freaking metric ton of people.
J. Aughenbaugh: Now, there is quite a bit of scholarly debate on this. For instance, Josh Blackman argues that the President is not an officer of the United States. Whereas other scholars like Will Body and Ilia Samin claim that historically and commonsensically, to your point, Nia, the President has to be an officer in the United States. That it was simply an error of omission, not commission.
N. Rodgers: They just left it out because they just made the assumption that it was obvious or whatever.
J. Aughenbaugh: Yeah. The third legal issue is, do state courts have jurisdiction to determine if a candidate is covered under Section 3 of the 14th Amendment? Again, this is confusing. On one hand, the 14th Amendment rather specifically applies to state governments. The framers of the 14th amendment were concerned that the former confederate states, southern and border states, after the Civil War, would not grant equal protection under the law, due process, privileges, and immunities, to their citizens, particularly African American males, post Civil War, that they would want to return to the conditions pre Civil War, where African Americans had no legal and political rights. However, Section 5 of the 14th Amendment says, only Congress can pass laws that implement the first four sections of the 14th amendment. Well, if Congress has not passed a law or passed a resolution removing Trump from any of the state ballots, do state courts have any jurisdiction?
N. Rodgers: In terms of insurrection.
J. Aughenbaugh: Okay, but again Nia, that's what the clause focuses on.
N. Rodgers: But what I'm saying is, they can consistently keep him off the ballot for other reasons.
J. Aughenbaugh: Well, they could, because that goes back to the first point that you made in the podcast episode. There's another clause in the US Constitution that says the time, place, and manner of elections is to be determined by the states.
N. Rodgers: What you're telling me is there are contradictions in the Constitution.
J. Aughenbaugh: Oh my goodness. Shocking.
N. Rodgers: No. There cannot possibly be gambling in this establishment.
J. Aughenbaugh: Establishment. Those are the three main legal issues.
N. Rodgers: Okay.
J. Aughenbaugh: Now let's get to.
N. Rodgers: So the Supreme need to solve this.
J. Aughenbaugh: Well, okay.
N. Rodgers: Because if it comes down to a question of do the lower courts have the right to judge, that's going to have to be a Supreme Court answer, isn't it?
J. Aughenbaugh: Well, any of these three legal issues are going to have to be addressed by the United States Supreme Court.
N. Rodgers: You're going to love that.
J. Aughenbaugh: In particular.
N. Rodgers: Jay Rob somewhere, is like bring me another margarita. I just need another gallon of margaritas to get through this.
J. Aughenbaugh: I fully imagine that for Christmas dinner, okay?
N. Rodgers: He hates tums.
J. Aughenbaugh: Okay. I was going to go.
N. Rodgers: What are you having, I'm having tums.
J. Aughenbaugh: I was going to go a little bit further Nia. He went ahead and turned to his spouse and said, can I have a second helping of zenax please?
N. Rodgers: Exactly.
J. Aughenbaugh: Okay.
N. Rodgers: zenax and tums.
J. Aughenbaugh: In particular, I think the Supreme Court has to take this case.
N. Rodgers: Yeah.
J. Aughenbaugh: Because there's conflict.
N. Rodgers: For one of these cases.
J. Aughenbaugh: Because there's conflict between the state courts that have already ruled or state government officials who have ruled. For instance in Maine. The authority to decide who is on the ballot rests with the main Secretary of State.
N. Rodgers: She just recently said Donald Trump.
J. Aughenbaugh: The day we are recording, the night before, the Secretary of State for Maine said what Trump did was an insurrection, and therefore her Section three of the 14th Amendment, he cannot appear on the main ballot. What generated this podcast episode was the Colorado Supreme Court ruling, which as Nia described, was a four to three ruling, concluding that what Trump did was an insurrection. Therefore per the 14th Amendment Section three, he cannot be on the Colorado primary ballot in the spring but Nia of the day we are recording, there are at least a handful of states that have ruled differently.
N. Rodgers: And then dismissed the cases.
J. Aughenbaugh: Michigan, Minnesota, New Hampshire.
N. Rodgers: He can be on the ballot. Can we shout out Lafamedia? Can we take a second and shout out Lafamedia.org?
J. Aughenbaugh: The Lafa blog, has what Nia?
N. Rodgers: Has a map that Aughie found that is wonderful. It's wonderful in the sense that it tracks the litigation in really nice colors. You can click on a State and see what the name of the case is that's going through the courts. They have pending, voluntarily dismissed by plaintiff dismissed pending appeal, and Trump disqualified decision stayed pending appeal. There's all kinds of layers here. There's stuff to look at. This project was created by Hyman Hahn and Caleb Benjamin on October 30th, 2023. Shout out to them because that's great work that they're doing out there. We will put a link to it on our guide so that you can follow. Because this will not be the last we will hear of this. There will be more states, surely it seems unlikely that this will not spread to the other states. Even if it's pro forma in some of the states in the deep red states where we know he's going to be allowed to be on the ballot, it's still probably going to go through the system so that they can declare themselves because this is a real question. This is a serious question.
J. Aughenbaugh: There are 16 states. Now, before we get to the politics of this, I just want to go ahead and because I've been asked by a number of current and former students, even a couple other media organizations. What might the Supreme Court do Nia? Well, on one hand, you would think that the Supreme Court's got to take the case and rule on the merits. They got to go ahead and decide these three legal issues, or at least one of them. Because if they go ahead and say that what he did was not an insurrection.
N. Rodgers: Everything else goes away.
J. Aughenbaugh: Everything else goes away. However, as you pointed out, I can see easily one or two of the Supreme Court Justices wanting to avoid ruling on the merits of this case. They may understand that they have to take these cases, but they want to figure out a way to avoid issuing a ruling on the merits. Go ahead.
N. Rodgers: I think they're likely just tell me if I'm wrong, please. I think they're likely not to answer the question of whether it was insurrection or not. I think they're likely to answer the question of whether a state can take someone off of a ballot. If this applies to the presidency, if section three applies to the presidency, then it's up to the states to decide if somebody was an insurrectionist or not. I think that's how they're going to go. I think they're going to make it as convoluted and complicated as possible. Because it's a hard question to answer. We never faced this question with Nixon.
J. Aughenbaugh: Yeah.
N. Rodgers: Because he went away.
N. Rodgers: Yeah.
N. Rodgers: He resigned. If he had not resigned, this would have been one of the questions we would have faced with Nixon. Did the President, is what the President did criminal?
J. Aughenbaugh: Does it satisfy the definition of insurrection or giving aid to the enemies of the United States?
N. Rodgers: Because he was trying to set the election, he was trying to upset the reelection.
J. Aughenbaugh: I could see the Supreme Court ruling for Trump on technical grounds. What I mean by that listeners is they go ahead and say, we are staying, we're issuing a stay that basically delays all current litigation until special prosecutor Smith's case gets adjudicated. Special counsel Smith's case gets adjudicated. Because again, if Trump is found guilty of obstructing an official proceeding, then I could see the Supreme Court saying, well, he gave aid to the enemies of the United States.
N. Rodgers: He's disqualified from running.
J. Aughenbaugh: Then he's qualified from running but what this allows them to do is punt for a few months.
N. Rodgers: It's only for a few months. Because hasn't special prosecutor Smith asked them for a review of his case?
J. Aughenbaugh: Special prosecutor.
N. Rodgers: Didn't he asked them for something special?
J. Aughenbaugh: Or special counsel Smith earlier this month, and again, we're recording in late December early this month. Special counsel Smith went ahead and asked the Supreme Court to rule on whether or not Donald Trump had immunity from lawsuit because he was still president. Because part of Trump's defense in this case. In the special prosecutor counsel's case, is that as President, he was trying to make sure that the election results were fair and accurate. That's his claim. Therefore, because there were.
N. Rodgers: Even though his lawyers are jumping out of the way of that.
J. Aughenbaugh: But never call it. It's what he believes.
N. Rodgers: It's what he's saying in court. I don't know what he believes. Yes.
J. Aughenbaugh: But again, that's part of the intent. Smith's going to have a really difficult time in regards to intent because at some point in time, he's going to call a whole bunch of Trump's former lawyers, many of whom have cut deals in other cases, and say, what did the President believe? What did you hear him express? But that's his argument. Smith asked the Supreme Court to rule on whether or not Trump had immunity and the Supreme Court said, we're not going to answer that question. That is a motion that needs to first be heard by the Trial Court Judge. Then if either party wants to appeal the DC Circuit Court of Appeals, that's the normal process. Well Nia, what that does is call into question the Trial court's timeline. The judge in that case, in the DC Case, because this is where it's filed. The judge in that case wanted the trial to occur in March. Realistically, just the appeals on whoever loses on that immunity motion is going to push this now into the summer. At that point, Trump can very realistically go ahead and file another appeal and say, this trial can't go on while I'm trying to campaign for the Presidency.
N. Rodgers: Yep.
J. Aughenbaugh: This could all get dragged out until after the November 2024 presidential election.
N. Rodgers: Not only could it, it is likely to, because Donald Trump is not a person who concedes in court ever.
J. Aughenbaugh: No. He'll file an appeal, and if he loses on the immunity, he will appeal the whole way to the US Supreme Court. He'll force the court to go ahead and address that issue but that will take months, if not a full year. Because by the time it goes back up to the Supreme Court on the immunity issue, the Supreme Court will more than likely be near the end of its term. Unless it decides to hear a case during the middle of the summer, can go ahead and push it off until the next Supreme Court term. They may not hear oral arguments in that case until December or late November. Nia, when does the presidential election in 2024 occur?
N. Rodgers: The first Tuesday after the first Monday in November.
J. Aughenbaugh: Yes. The end game for Trump.
N. Rodgers: Although the president is not seated until January.
J. Aughenbaugh: That is true.
N. Rodgers: The president, if he were elected and then disqualified, I don't know what that would do. Would that mean that we'd have to have another election? Would that mean that his vice presidential?
J. Aughenbaugh: Well, what that would require if the Supreme Court has stayed the 14th Amendment Section 3 cases, then that litigation would start a new after the election.
N. Rodgers: But what I'm saying is, let's just say for the sake of argument that Donald Trump won the election, but then was disqualified afterwards.
J. Aughenbaugh: But you're jumping ahead two or three steps. But the United States Congress could go ahead and act. Let's just say, for instance, Trump wins the 2024 presidential election, but the House and the Senate are controlled by the Democratic Party, could they go ahead and disqualify him? Well, there's already precedent for it. That's what they went ahead and did to one of those other characters that we talked about earlier.
N. Rodgers: Yeah, but that person wasn't elected president of the United States. That's a big move. That's a big bold move to decide that you're going to.
J. Aughenbaugh: Or they could do impeachment again.
N. Rodgers: Which is relatively toothless in this country. People are found guilty all the time and not punished or not found guilty. I do have a question for you though about, do political scientists at this point, are they starting to refer to the United States political system in the same way they refer to the political systems of third-world countries where it's just such a mess that it's almost incomprehensible? This is not a thing that when I was a kid, people thought would ever happen.
J. Aughenbaugh: Yeah, there's a growing number, growing body of political scientists from Levitsky and Ziblatt, How Democracies Die, in fact, they just got a new book out talking about the United States specifically. You have other political scientists who worry that if Trump gets elected to a second term, that he's going to use the power of the Office of President to engage in behavior that typically you see from authoritarian regimes in third-world countries. In some of his campaign speeches this fall, Trump has said that he's going to target his enemies.
N. Rodgers: He's alluded to personal vendettas.
J. Aughenbaugh: I mean, that's the thing you typically see with authoritarian regimes in third-world countries. There's a growing body of political science literature on that point.
N. Rodgers: I just feel the need to say this. I know this may upset some listeners and I'm sorry if it does, if it upsets you but I don't think this is a good idea. I don't think having the courts solve this question is a good idea. I don't like the idea of the courts disenfranchising voters. If you want to vote for Donald Trump, then I think that that's how democracy works. If enough people vote for Donald Trump, that they vote him into office, which did not happen in 2020, by the way, that election was not stolen, it didn't happen but if it had happened, then that would be how things work. There's been plenty of presidents in my lifetime, that I was like, that's how I felt about them. There's not been a president in my lifetime that I thought, that's it, I'm moving to Canada but I've been pretty antipical about some, but mostly just generally mad about them. That's how politics is supposed to work, that's how elections are supposed to work, is that there is an opportunity for people to vote. I don't like this idea that the courts can say, yep, that guy's not on the ballot. I don't know. Am I crazy or does that feel like disenfranchisement?
J. Aughenbaugh: I don't think you're crazy.
N. Rodgers: About this, we both know jury is out on most of the rest of my life.
J. Aughenbaugh: But I share your skepticism, Nia. Again, mind you, I'm a courts person. I'm an institutions person but I'm concerned when we attempt to use the law in the courts to disenfranchise a whole bunch of Americans in part because we don't trust their judgment.
N. Rodgers: But we're going to trust the judgment of non-elected courts to, I don't know, that just seems sketchy.
J. Aughenbaugh: There are some analogs here that I find to be ironic, bordering on hypocritical. Nia, on this podcast, we have discussed a couple different times how the Electoral College gets criticized for being antidemocratic because theoretically, a bunch of elites can second guess or overturn the will of the majority in a particular state. One of the criticisms we hear is that the Electoral College needs to be removed. I'm like, okay, but are we not with these lawsuits going to court and in many instances, relying upon unelected government officials to second guess or overturn the judgment of a whole bunch of our fellow citizens. That's one. Two, if you're that afraid of a second term of a Trump administration, then why not run a candidate with a platform?
N. Rodgers: Thank you. Beat the individual. If you can't beat the individual, it's because you don't have a strong enough argument on your side. You're not attracting enough voters to your side, run a better candidate.
J. Aughenbaugh: Run a better candidate.
N. Rodgers: That's the answer. Run a better candidate. There's a part of me, we were talking about this during our George Santos episode, like dude, you can't run somebody against that guy and beat him. Hello, if not, then you deserve to lose. There's some instances where, I don't know.
J. Aughenbaugh: There's a couple of fears that I have. I share your skepticism but I have a couple of fears. One, going to court and trying to remove Trump from the ballot continues to feed the narrative that we have heard from Donald Trump.
N. Rodgers: That the deep state is out to get him and the media is out to get him.
J. Aughenbaugh: This is like throwing raw meat to his supporters. They have bought it, locks, stock, and barrel, why do we continue to go ahead and feed that narrative? I have a fear that that's how it's going to be perceived particularly if he loses.
N. Rodgers: Along those lines, those people will lose even more faith in those institutions. They already have low faith in those institutions, they will have no faith in those institutions, and the longer that goes with people not respecting the Supreme Court, not respecting the court system in general, that is more disastrous in the long run than any presidential run of any chucklehead or turkey head or whatever you want to call them. President Aughenbaugh and President Rogers, I am looking at you. It would be way worse to have people lose their faith in the Supreme Court than to have either one of us be president for four years. You know what I mean?
J. Aughenbaugh: Yeah. You're talking about the institutions, here's my second fear. Let's say these challengers who want to use the 14th Amendment, Section 3 are successful. Can you imagine what's going to happen?
N. Rodgers: Unless somebody has a very clear definition of what insurrection is, we will see this battle play out over, and over.
J. Aughenbaugh: For me, there's a couple analogs. We've already seen this. You mentioned this a few moments ago, Nia with impeachment. Impeachment has been used.
N. Rodgers: It's too close.
J. Aughenbaugh: It's now a joke.
N. Rodgers: I've been impeached practically. You know what I mean? I don't think that presidents even blink anymore. I think they go, yeah, whatever.
J. Aughenbaugh: Any in particular, because when the impeachment fails, when the effort fails.
N. Rodgers: Then it just looks political.
J. Aughenbaugh: Not only does it look political, but in a couple instances, the person, the President, who was the target of the impeachment, their support goes up.
N. Rodgers: Clinton.
J. Aughenbaugh: Think about Bill Clinton example.
N. Rodgers: More than loved afterwards. After having an affair that comes to light, and most people would find that repulsive.
J. Aughenbaugh: He lies under oath in a deposition but because the Republicans who wanted to impeach him did not have enough votes in the Senate, failed. Afterwards, he leaves at the end of his second term with some of the highest public approval rankings of any second term President since we've been doing polling.
N. Rodgers: It's crazy.
J. Aughenbaugh: Trump is impeached twice and it has not discouraged his supporters, if anything, it's fed that narrative.
N. Rodgers: I think you make a really important point there that I would like to bring out again before we close out the episode. Which is that if you play this game, it only opens the door for the other side to play this game harder. There's a reason that Americans that our national sport is not badminton. It's a slow, gentle game. For the most part, it's really hard to take somebody's head off with, I can't even shot a cock. You can't even hit that thing hard enough to really hurt an opponent. You know what I mean? Unless you got very lucky. What we do when we do this is we turn it more and more into my beloved hockey, which is just a fight in which occasionally somebody scores a goal. The more you make this a contest of oh, yeah, really. Hang on. Somebody hold my beer for a minute, then you turn into this, so you're talking about red states who will make it hard for Democrats on the ballot and blue states that will make it hard for Republicans to be on the ballot, and then you just get gerrymandering at a statewide level instead of or rather a nationwide level.
J. Aughenbaugh: But to your point, we've already seen this with Supreme Court nominations. We've discussed this on this podcast. Countless numbers of my students have heard me say this over and over again. We're at a point now to where very qualified candidates don't ever get considered. Because of the way the Supreme Court nomination process has become politicized, it has become a game of, oh really, you do this, well, we're going to do this. It's a game of tit for tat.
N. Rodgers: One-upmanship.
J. Aughenbaugh: Where's the endpoint? Because neither political party right now has states people who are willing to go ahead and say okay, to their supporters.
N. Rodgers: You know why a school bus can't go 90 miles an hour? Because there's a governor on it. There's a governor on the engine, on the accelerator that prevents you from going 90 miles an hour. It's because they don't want a 16-year-old driving a bus with a bunch of eight-year-olds in it careening down the highway at 90 miles an hour. Exactly. All the windows down and their heads hanging out. They don't want that for good reason.
J. Aughenbaugh: Yes.
N. Rodgers: We seem to lack a governor and by that, I don't mean governors of the states, I mean governor like the one on your accelerator where everybody just needs to slow down. It always comes back to me to the argument of we should get rid of the-.
J. Aughenbaugh: Electoral College?
N. Rodgers: No, when you talk in Congress endlessly.
J. Aughenbaugh: The filibuster.
N. Rodgers: Filibuster. We should get rid of the filibuster. I'm like, no, we shouldn't. You think that now because your side's in charge but you are not going to want that when you are not in charge and you will eventually not be in charge. That's the thing. Is that we seem to have lost our ability to say, oh that's right, this pendulum swings, and it doesn't stay on my side, it always goes to the other side. Maybe if I was a moderate, I would see the pendulum more often than I would if I was at the edges.
J. Aughenbaugh: Again, with a pendulum, unless you are a thrill seeker, most of us want that pendulum.
N. Rodgers: To make slow, gentle, and not very deep on either side.
J. Aughenbaugh: That's right.
N. Rodgers: We want a pendulum that swings just a little bit.
J. Aughenbaugh: I have some deep concerns about this. Again, listeners do not mistake.
N. Rodgers: This for being pro-Trump.
J. Aughenbaugh: Yeah.
N. Rodgers: Which is not the same thing. Did Donald Trump act badly on January 6th? I think we can pretty much all say yes.
J. Aughenbaugh: Yes.
N. Rodgers: I think even his supporters, if they were being honest, would say, well, he probably should have called that off sooner or whatever, you know what I mean? But I'm not sure that we should go to this place.
J. Aughenbaugh: To this place, because again, I am reminded by decades of civil rights movement who wanted people of color, people who had been discriminated against in the political arena, an opportunity to be on the ballot and for their votes to count. By using this process, you are basically saying to a whole bunch of Americans. Again, I may understand why you distrust the voting decisions, but they are citizens with voting rights. You are basically taking it out of their hands, and I'm like, but this is not what we had in part the civil rights movement for.
N. Rodgers: Be careful about this, because what it means is that people who have the money to fight these cases.
J. Aughenbaugh: This litigation takes money.
N. Rodgers: They will have a heavier thumb on the scale than we want them to have because states with money can do this. I love Mississippi, but it doesn't have any money. It can't fight a case like this. When you're talking about lawyers to go to the Supreme Court, you're talking about a lot of money, that's a big investment.
J. Aughenbaugh: You're talking about special interest groups, who have generated millions of dollars every year for litigation. Again, contrary to popular belief or accepted wisdom, you have groups on both sides of the ideological spectrum that fall into that category. That basically means most of us who don't have the resources, who don't have the time.
N. Rodgers: Are shut out of that system.
J. Aughenbaugh: That's right.
N. Rodgers: Then you take away my vote? Now you're just making me crabby all the way around.
J. Aughenbaugh: Again, if I had to venture a guess, if we had the election today, I seriously doubt that either one of us in this podcast would be like, oh yeah, I can't wait to vote for Donald Trump. If that says where we are. Sorry, listeners. If this offends Trump supporters as listeners, I apologize. But that's only my personal belief about who I want, but I want that choice.
N. Rodgers: Just as a side note, I'm not chomping at the bit to vote for anybody in this election, so far.
J. Aughenbaugh: Oh, my God, no.
N. Rodgers: My choices are a deep pit or a large fire. Awesome. The whole cylind carribeaness, I never understood that until adulthood. Now I'm like, oh, I totally get that. I typically get.
J. Aughenbaugh: Nia, we are a long way from 2008 in 2012 when I actually thought we had honest to goodness, realistic. I can be positive about the direction of this country choice for president.
N. Rodgers: I'm starting to think that I should jump into the election because I don't know how I could do worse than the candidates that I've seen thus far.
J. Aughenbaugh: But using the legal process again.
N. Rodgers: This feels, and it also feels a little slimy.
J. Aughenbaugh: Slimy.
N. Rodgers: Like that's just not how we should be doing it. My mom regularly says to me, we need term limits. I'm like, we have term limits. They're called elections. Like you can get rid of people. Just because you don't doesn't mean you can't. I know that incumbents win something like 99.78% of the time or whatever it is. Some huge amount.
J. Aughenbaugh: It is a huge amount.
N. Rodgers: But that's how this works, that's how the system works. And if you really rise up against people and turn them out of office, somebody should ask what was his name? Paul Ryan.
J. Aughenbaugh: Yes.
N. Rodgers: How did that feel there, buddy? Or the guy from Virginia who Dave Bratt replaced.
J. Aughenbaugh: Eric Cantor.
N. Rodgers: Eric Cantor who had been in Congress for approximately 9,000 years. He got turned out, it happens, so I don't know. I want to put my faith in the people, not in the courts necessarily. I think the courts have an important role in our society, and I don't mean to slam the courts. I love the courts but I don't think they should be deciding elections. I think voters should be deciding elections. If my candidate pales in comparison to your candidate, then that's how it goes. I come around next time with somebody better.
J. Aughenbaugh: When you go to court, courts pick winners and losers, right?
N. Rodgers: Right. Well, actually everybody loses. It's just by how much.
J. Aughenbaugh: I say this to my students with some regularity, you know when you go to court to get the change that you want, understand that you may not get as much change as you hoped for but what it does to the losers is that they have no desire then to work with you going forward.
N. Rodgers: Way to be alienating an entire party of people here.
J. Aughenbaugh: Even those who may not be Trump supporters. I think you and I have outed ourselves, as in the past, not being huge fans of Donald Trump as a political candidate.
N. Rodgers: Although we do try to be.
J. Aughenbaugh: Fair.
N. Rodgers: Relatively fair to him. We try to be.
J. Aughenbaugh: But nevertheless, taking away the preferred candidate, and I'm just using the 2020 presidential election results of 70 million Americans.
N. Rodgers: Hello?
J. Aughenbaugh: To me, that strikes me as undemocratic.
N. Rodgers: Un-American.
J. Aughenbaugh: Again, you give them no reason to go ahead now to trust you.
N. Rodgers: Or the system.
J. Aughenbaugh: Or the system or the institutions within the system, because now they think the system is rigged against them. Again, this takes me back to various civil rights movements that we've had in the United States. We can't trust the system. The system is rigged. We just want a legitimate shot to participate in the political life of the country. We want to vote.
N. Rodgers: I'm sure we'll be back with this map and with more cases as they get settled or with the Supremes as they decide what they're going to do about all this.
J. Aughenbaugh: Yes.
N. Rodgers: Because this is not a mess that's going away unless someone in this dies an unforeseen and tragic soon death. Which we do not wish by the way on anyone involved in this process but unless that happens, unless Donald Trump passes away, this is here to stay. This complicated question in all these court cases and all this stuff, it's not going away.
J. Aughenbaugh: Nia, you've heard me say this off-recording a number of times. I would not want to be a Supreme Court justice having a rule on these issues.
N. Rodgers: No kidding. I recused myself for the next three years. I'm going on sabbatical. I've been thinking about something I want to run by you as an idea. I'm going to just put it out now and then we'll talk about it later in another episode. What do you think about having a Supreme Court Emeritus where we put it in like you need to retire by a certain age, but then you're on the Emeritus court and if somebody is recused, we call the Emeritus court and bring somebody in.
J. Aughenbaugh: I actually think it's an idea that we should consider.
N. Rodgers: Other courts have extra.
J. Aughenbaugh: Expert judges. And it would address one of the reasons why the Supreme Court says they cannot recuse themselves as often as lower court judges, which is that there's only nine of them.
N. Rodgers: If we had the Emeritus court. Let's say you make the retirement age 75. You have to retire from the court at 75, but you're perfectly mentally healthy. You can work. So you hear all the cases but you don't actually rule on them unless somebody has to recuse themselves.
J. Aughenbaugh: Well, you don't even get pulled in unless a justice recuses himself. Think about it, right now, we have three former Supreme Court Justices alive and by all accounts they are healthy and they did not retire because they were losing their mental faculties. I'm talking about Justices Souter, Kennedy, and Briar.
N. Rodgers: Why not use those guys?
J. Aughenbaugh: In Soutor's case, he has been serving in lower federal court cases by designation when they've needed an extra federal court judge.
N. Rodgers: See. There we go. That's what we're going to run on that's organized platform.
J. Aughenbaugh: Yes.
N. Rodgers: Is we're going to have a retirement age for the Supreme Court and then we will use them as extras.
J. Aughenbaugh: Yeah. And we could probably extend that even to the bureaucracy.
N. Rodgers: Ex-presidents.
J. Aughenbaugh: Well, no I was thinking about is if you can't find somebody to get accepted by the Senate to run a particular federal agency, we have a cadre of former executive branch officials who are good man.
N. Rodgers: Can be interims.
J. Aughenbaugh: Who can be interims. In many instances they are non-political. These are the generalists of the past that you've heard, Nia, Bill Newman, and I talk about. Folks like Bill Ruckelshaus and others of that kind but nevertheless, that might be a future episode for us to go ahead and consider. The Rogers Ogen bag Federal Government Reform Commission. It's like some of the commissions we discussed in our previous podcast series.
N. Rodgers: There we go. We just make up one and then say what we would do with it.
J. Aughenbaugh: Yes. I think it's an excellent idea because we don't have enough work. Anyways, Nia. Thank you.
N. Rodgers: Thank you, Aughie.
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