It’s easy to forget that Neil Gorsuch wasn’t the only beneficiary of Mitch McConnell’s plan to steal a Supreme Court seat. The Republican senator kept the seat vacated by Antonin Scalia’s death open for over a year to prevent Barack Obama from appointing his successor, which led to Gorsuch taking over the mantle. But someone else benefitted — Allison H. Eid got Gorsuch’s old seat on the 10th Circuit when he moved to Washington, D.C., and it looks like she learned a lesson about how judicial politics really works.
The 10th Circuit recently heard an appeal of a case brought by a plaintiff who sought to keep Donald Trump off the 2024 presidential ballot. The plaintiff lost at the trial court level, and Trump appeared on the ballot and wound up winning the election. The majority held, inter alia, that the plaintiff’s claim is moot because Trump is serving his second term and the 22nd Amendment means he won’t be appearing on the presidential ballot again.
But where’s the self-serving attention in that? Incredulously, Judge Eid went out of her way to slam her colleagues for “opin[ing]” on the 22nd Amendment, then called the question of a third Trump term in office a “novel and complex constitutional question.”
This is actually not a difficult or complicated legal question at all — the 22nd Amendment is pretty dang clear.
Trump cannot, constitutionally, run for the presidency again. And with Donald Trump already making noise about a third term in office, Eid’s words don’t read like that of a circumspect jurist. No, it *looks* like she’s taking a page from James Ho’s book and letting Trump know just how useful she’d be on the Supreme Court. Like Ho, Eid clerked for Clarence Thomas and this short but effective concurrence may be enough to signal Eid has some interest in replacing her old boss on the Court.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].