On the other hand, there were certain anecdotal “hints” about where certain of the Justices might presently sit on the nbC issue. Candidly, they are not in your humble servant’s view particularly encouraging…, but if he is wrong in that evaluation, it would not be the first time.
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And yet in the Anderson oral argument, Justice Sotomayor references (O/A transcript, p. 23) “other qualifications” in the Constitution bearing upon one’s presidential eligibility, including age and “citizenship.” Again, while her words may be imprecisely chosen, it is clear that she was referring to Art. 2, § 1, Cl. 5 and the “nbC” eligibility definitional restriction.
[Usual "DeMaio"
snipped.]
But Justice Sotomayor was not the only jurist utilizing less-than-precise language to describe the nbC personage. Justice Gorsuch, in addressing whether a state could remove or ignore certain requirements from those listed in the Eligibility Clause, Art. 2, § 1, Cl. 5, referred (O/A transcript, p. 82) to “age and citizenship.”
Justice Gorsuch, in questioning the attorney for the Colorado parties, stated (id.): “Nobody’s talking about whether he’s [i.e., Trump] 35 years old or a natural born, whatever, right, not at issue, okay.” (Emphasis added). Again, clearly when Justice Gorsuch was referencing a “whatever,” he was referring to a “natural born Citizen” as set out in the Eligibility Clause. As with Justice Sotomayor, Justice Gorsuch was plainly referring to the Eligibility Clause and the “nbC” restriction, again, there being no “natural born citizenship” neologism in that clause or, for that matter, anywhere else in the Constitution.
Justice Gorsuch also refers (O/A Transcript, p. 79) to the requirements set out in Art. 2, § 1, Cl. 5 as elements of the “Qualifications Clause.” Again, the preferred nomenclature would be the “Eligibility Clause,” because that is what it is . . . .
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As with Justice Sotomayor, Justice Gorsuch’s use of the term “citizenship” might also be interpreted as “hinting” that he too believes that all that is needed to satisfy the Constitution’s nbC restriction is that one be possessed of U.S. “citizenship” under the 14th Amendment consistent with the Court’s flawed decision in the WKA case. Again, with due respect, if that is his belief, your servant posits that he is wrong as well.