Dem
51
GOP
49
It is very likely that Donald Trump picked Alina Habba as one of his lawyers for five very good reasons: (1) She is pretty, (2) she is young (39), (3) she is conveniently located (her law office is a 6-minute drive from his Bedminster club; just turn right out of the gate and follow Lamington Road for 3 miles and you're almost there), (4) she graduated from a law school ranked in the top 160 law schools in the country (but barely, at #159) and (5) she was willing to take him on as a client. We don't know for sure, but we suspect her hourly rate is less than someone who graduated from Stanford (#1), Yale (#2), or Chicago (#3). After what she said on Friday, we're not so sure she was a great choice, even with five important things going for her.
Specifically, on Fox News she was asked about what she thought the Supreme Court would do in the case where the Colorado Supreme Court disqualified Trump from the primary ballot on the basis of the Fourteenth Amendment. She confidently said: "I think it should be a slam dunk in the Supreme Court; I have faith in them. You know, people like Kavanaugh who the president fought for, who the president went through hell to get into place, he'll step up." No doubt she really hopes that Kavanaugh will step up, but telling him in public "You owe us one" might not be the best way to tackle the problem. Maybe at Widener University Commonwealth Law School they teach the students to butter up the judges they are facing. However our view (and again, we are not lawyers) is that this remark puts Kavanaugh under pressure to vote against Trump to show the country that he is not bought and paid for. Later Habba tried to walk her statement back a little, but the damage had already been done. Here is the clip:
The three Democratic appointees can easily conclude that Trump participated in an insurrection against the United States, and thus the literal wording of the Fourteenth Amendment disqualifies him.
Then it all comes down to the chief, John Roberts. Nothing Roberts has done so far in cases involving Trump suggests that he likes Trump even a tiny bit. If we had to guess, we think his favorite president since World War II is probably George H.W. Bush, a principled, intelligent, conservative who respected the rule of law. We know (because Roberts has said it in public) that he sees himself as an umpire who just calls balls and strikes. In reality, most of his decisions seem to make Republicans happy and Democrats unhappy, so to balance things out and get some cred with Democrats, once in a while, he has to toss a few crumbs to them. Taking Trump off the ballot would be a very large crumb and get him a GOP candidate he could vote for in good conscience in November.
On the other hand, both Kavanaugh and Roberts know that a decision to disqualify Trump would tear the country apart. Justices read the newspapers. Consequently, although they might have their reasons for finding against Trump, they might decide to avoid the firestorm on a technicality, like ruling the Fourteenth Amendment applies only to insurrections begun before it was ratified in 1868 or it is not self-executing. This would get them off the hook. This is probably going to be the Court's toughest decision so far and it is impossible to predict what it will do. The Constitution is irrelevant here. Arguments can be made both ways on what the Fourteenth means. It is all about the politics and the public reaction and they know that very well. (V)