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If Biden Knew Now What He Didn’t Know Then

If a Democrat as audacious as Mitch McConnell was president, they’d point out we increased the size of the Supreme Court to 9 justices in 1869 because there were 9 federal judicial circuits. The population was 38 million. Now that there are 13 circuits and the population is 338 million, the president would say we need 13 justices. The president would deny any other motive and Democrats would immediately add 4 Democrats to the Court. But that’s not the president we have.

How bad is it? How bad will it get? Brian Beutler of Crooked Media lays it out in an edition of his Big Ten newsletter:

Sometimes I wonder what would happen if we could travel back in time to 2019 or early 2020 and tell Joe Biden he’d be the next president, but that under the governing approach he’d laid out for primary voters—pro-filibuster, anti-court reform, conciliatory to a fault with the GOP—he’d oversee the abolition of the right to abortion, the hollowing out of the regulatory state, the imposition of an imaginary constitutional right to concealed carry, the disintegration of his policy agenda, an inability to marshal a federal response to a violent coup, and perhaps, right before his re-election campaign, the constitutionalization by five rogue Supreme Court justices of the January 6 strategy to steal elections for Republican candidates. 

What if anything would he do or say differently? … If Biden had rethought his institutionalism, what different steps would he have taken to rally Democrats around a new and (by necessity) more partisan approach to governing, to insure against rapid democratic backsliding and maybe even the end of the republic?

The answer may actually be “none.” All of these things have come to pass, and Biden still at least claims faith in the institutions that are steering the country toward an authoritarian takeover. 

But I suspect this is not the presidency Biden wanted or imagined for himself. I think he really did want to save the country … and preside over an American renewal. I think (because nothing else really makes sense) that he drove himself into a cul-de-sac by running on the idea that his victory would largely solve these problems automatically, that retrofitting the country’s democracy wouldn’t require using carrots and sticks and tireless persuasion to change what it means to be a Democrat. That as a calm, unimpassioned figure, his mere presence would quiet national unrest and refasten the bonds that used to hold the country together. By the time he realized he’d handed Joe Manchin and Kyrsten Sinema all the justifications they’d need to stand in the way of responding to new threats, it was too late.

Obviously this is a multi-layered counterfactual, of limited probative value. Maybe if Biden had been open to more procedurally radical ideas, he would’ve lost the election; maybe no amount of cajoling from the leader of the party—no matter how early and heartfelt and persuasive—would’ve changed what Manchin and Sinema thought they could get away with. If you’re intent on concluding that Biden played a bad hand perfectly, and we were always destined for the abyss, it isn’t hard to reason your way there.  

But the problems swallowing Biden’s presidency were easily foreseeable. For one thing, I foresaw them! In October 2019, I wrote that candidates who cling, like Biden, “to the view that a golden era of compromise will dawn once T____ is gone… will lock themselves into a mode of governing that can not work anymore. Their supporters and intra-party critics will be demoralized, their presidencies will stagnate, and they will waste precious time grasping for a better approach.”

Around the same time, I pleaded with Democrats to begin leveling with their voters about the dangers of the Supreme Court, and the need to dilute its power, because, “If Dems don’t preemptively expand the courts, Republican judges, with their lifetime appointments, can simply wait until the elected branches are divided again and then implement the disastrous judicial agenda they’ve been building toward for 40 years.”

That actually proved a little optimistic, because what happened in reality is those justices waited until the Democratic Congress gave the high sign that it would under no circumstances intervene to check them, and they got to work right away….

Obviously we can’t go back to 2019 to travel roads not taken, we can only move forward from where we are. That’s why I’ve been going on for months about what Democrats should do if and when the Supreme Court overturns Roe v. Wade. Well, that happened a week ago now, but the simple idea remains the same: Level with voters about the party’s current limitations, stemming from its narrow majorities, and make a simple promise to codify Roe as a first order of business next year if voters manage to give them two more Senate seats and a House majority. 

…but at the same time I know that even on the off chance that this strategy works out perfectly—that Democrats make the midterms a referendum on Roe, and win the majorities they need to codify it—we’ll still be plagued by those earlier failures. 

Without movement to reform the courts, it’s easy to see how a hard fought victory could turn pyrrhic. If Dems codify Roe in January 2023, without taking any steps to insulate it from the illegitimate judiciary, I give it a few weeks before Republicans find a corrupt judge, probably a T____ judge, to enjoin it nationwide on some laughable pretext. I’d give it better-than-even odds that this same Supreme Court would make up a basis for voiding it. 

That doesn’t mean the thing I keep badgering Democrats to do isn’t worth it….It’s easy to get yourself spun up about how things might go wrong, and then use the likelihood of future setbacks as an excuse to do nothing now. Even if Democrats never get that court-reform religion, codifying Roe next year would be better than retreating tactically. If a judge enjoins it, that’s a new opportunity for the same Democratic majority to consider checking and balancing the judiciary.

But Democrats aren’t going to get there so long as the Democratic president is aggressively opposed to expanding the court. The Dobbs ruling didn’t change their minds, the subsequent opinion stripping EPA of the power to regulate climate pollution didn’t change their minds. Why would a ruling that voids the Women’s Health Protection Act change their minds? Their minds will start to change when the leadership stops being scared of going to war with the courts. I gather they’re scared that if they blur the abortion issue with the cause of court reform, the public will reject it. But the thing to do then isn’t to say ‘I’m not for expanding the court,’ it’s to say the court has lost its legitimacy, and it needs to be restored one way or another.

I guess what I’m trying to get across is that it’s critically important for Biden and Dems to understand what has happened to them, why it happened, and to abandon the disastrous thinking that led them here. 

Personally, I think someone with Biden’s ear should tell him he’s perhaps four months away from going down in history as the president who lost democracy without throwing even a half-hearted punch.

On Friday, this same rotten court announced that it will hear a case that was cooked up specifically to constitutionalize the GOP’s January 6 strategy for stealing elections. Needless to say, if the Alito 5 rule the way D____ T____ wants them to rule (and they very well might) that’s likely game over for the republic.

And the worst part is, that isn’t the kind of wreckage that Democrats can fix by codifying this or that. Democrats have to expand the Court before these ghoulish justices hear or decide that case, or they will corrupt the 2024 election, and we’ll likely never get another chance.

Mr. Beutler continues here.

We Should Criticize the Home Team When They Deserve It

Two articles today have a common, negative theme:

Why Are Democrats Letting Republicans Steamroll Them? (Politico)

The Fall of Roe Is the Culmination of the Democratic Establishment’s Failures (The Washington Post)

The Politico article says the two parties have very different approaches to national politics:

The simplest way to summarize the situation is that Democrats value democratic norms over policy achievements, and Republicans feel the opposite….

This is a pattern we’ve seen repeated ever since. Republicans attempt some unprecedented and shocking move; horrified Democrats respond by trying to be the adults in the room; and then the Democrats go unrewarded for it.

To be sure, a country is probably better off with one responsible party than with zero. But in important ways, this kind of asymmetry can be dangerous, making the government less and less representative of its people….

We’re seeing this dynamic again in the wake of the Supreme Court’s decision to overturn Roe v. Wade. This ruling, while opposed by most Americans, was a longstanding goal of Republicans … And Democratic leaders had, thanks to [the] bombshell disclosure of the draft opinion, ample warning that it was coming. And in response, they have done … virtually nothing.

There are actions Congress could take (although with likely opposition from the two “Democratic” roadblocks, Manchin and Sinema); or the House could take by itself; or the president could take. Some of these might be considered norm-breaking and deemed too aggressive by Very Serious People. But as the Politico author points out, game theory tells us that the best way to deal with an uncooperative opponent is to stop cooperating. Otherwise you’ll be  taken advantage of over and over.

The Washington Post article by Perry Bacon, Jr., says Democratic leaders are simply too damn old:

The overturning of Roe v. Wade, and the underwhelming reaction from senior Democratic leaders to that huge defeat, make the case even clearer that the party’s too-long-in-power leaders — including President Biden — need to move aside. On their watch, a radicalized Republican Party has gained so much power that it’s on the verge of ending American democracy as we know it.

It’s a gerontocracy. Biden is 79; Nancy Pelosi is 82; her second-in-command, Steny Hoyer is 83; the House’s third-ranking Democrat, James Clyburn is 81; Senate Majority Leader Chuck Schumer is only 71, but his second-in-command, Dick Durbin, is 77. (I’m slightly younger than all of them but understand it’s too easy for politicians to overstay their welcome.)

Mr. Bacon continues:

Party leaders … spent 2021 downplaying Republican radicalism while emphasizing building roads years from now. No matter what happens this election cycle, their previous defeats, lack of new strategies and open disdain for the party’s activists is too much to allow this group to remain in charge. The Americans who will most suffer from entrenched GOP rule … deserve leaders who will fight as hard and creatively as possible for them, not a leadership class so invested in defending its own power, legacy and political approach….

There is a real ideological divide between the center-left and left in the Democratic Party. But I think an equally and perhaps more important fissure is between the political approach of the Old Guard and those who embrace a modern style of politics [among whom he includes Elizabeth Warren, who’s 73] …  I sense that they understand how politics in 2022 actually works. Unlike Biden and Pelosi, they are not wedded to polls and bipartisanship and do not constantly distance themselves from the party’s activists. They are much more open to new thinking.

I agree with both of them, but I’ll add another factor: money. There is nothing on the left that matches the number of billionaires and less than billionaires who fund right-wing organizations, Fox News being the prime example. But that imbalance doesn’t excuse the failure of Democratic leaders to effectively deal with the Republican menace.

President Biden’s biggest failure has been his inability to get 50 senators (all of whom caucus with the Democrats) to support his agenda, even on matters that don’t require reforming the Senate filibuster. Depending on how things work out, his appointment of the cautious Merrick Garland may be his second biggest failure. If you need a recent example of his perspective on Washington politics, here’s what President Biden said in February regarding duplicitous turtle-face Mitch McConnell, the guy who packed the Supreme Court that’s now running the country:

You’re a man of your word, you’re a man of honor. Thank you for being my friend.

What Democrats Could Do

Lots of people are giving Congressional Democrats advice. One such person is Perry Bacon. He writes for The Washington Post. Here’s his suggestion (with commentary from me):

The Republican Party isn’t fit to lead, and most voters know it — that’s why Joe Biden won the presidency. But all those 2020 Biden voters shouldn’t be expected to turn out for two more years of Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) blocking most legislation in the Senate, sometimes joined by moderate Democrats in the House….

Democrats should level with voters. . . . There was never really a Democratic “trifecta,” because Manchin and Sinema are more independents than they are Democrats.

They should be clear about the solution: a Senate with at least 52 Democrats and a House with at least 218 Democrats [they would actually need more than 218, since that would give every Democrat in the House veto power, just like Manchin and Sinema have had in the Senate for the past two years]. If they get that, they can say, they will pass a specific agenda, something like this:
  1. Eliminate the filibuster.
  2. A national law guaranteeing a right to an abortion in the first trimester and in all cases of rape and incest.
  3. A democracy reform law mandating independent commissions to draw state and congressional districts lines free of gerrymandering; vote-by-mail and two weeks of early voting; proportional representation through multi-member congressional districts; and measures to prevent election subversion.
  4. ban on the sale of military-style weapons such as AR-15 rifles and high-capacity magazines, along with universal background checks for gun sales.
  5. A minimum income tax of at least 20 percent on billionaires.
  6. A ban on members of Congress buying individual stocks.
  7. National marijuana legalization.
  8. A climate change plan that puts the United States on a path to net-zero carbon emissions by 2050.
  9. A required civics and life-skills course for high school seniors, with the same curriculum throughout the country.
  10. Voluntary term limits of 12 years in Congress for all Democrats (six terms in the House, two in the Senate) [A better idea would be a voluntary retirement age, say 70 years — airline pilots have to retire at 65, some state judges have to retire at 70]
  11. What connects these ideas? First, many of them are already popular….

Second, they directly confront America’s biggest problem: the radicalized Republican Party and how our political system gives a small bloc of GOP voters, the party’s donors and its elected officials veto power over the preferences of most Americans, including many Republicans.

Third, they acknowledge this stark reality: The United States is experiencing a non-military, uncivil war that the Democrats must win.

The Republican agenda of expanding gun rights, narrowing voting rights and functionally abolishing abortion rights doesn’t seem coherent or logical until you view it as an agenda of White male Christian hegemony. Then it fits together perfectly. The Democrats must stop trying to duck the so-called culture wars and instead fight hard to win them. There is no middle ground between White male Christian hegemony and multiracial, multicultural social democracy — and the Democrats shouldn’t be shy about using their power to impose the latter, since it’s what a clear majority of Americans want.

[These proposals would be] an acknowledgement that America’s economic and political establishments have failed and need to be changed.

Unquote.

Mr. Bacon didn’t include any strictly economic proposals or any ideas for court reform, although he mentions “the proposal of legal writer Elie Mystal to create a 29-member high court” (others have suggested a smaller number, like 13 or 15). But it’s a pretty good list and would remind some voters what would be possible with more Democrats in Congress. 

How To Fix “Our” Problems, Including Guns

After our two most recent massacres, a group of senators is discussing federal gun control legislation. There’s no reason to think they’ll come up with anything that enough Republican senators will support (it’s not even clear that the Senate’s most conservative Democrat — from rural West Virginia — will support something that upsets the gun cult). 

So consider the final paragraphs of today’s New York Times editorial:

In Washington, D.C., there is talk that Republican and Democratic lawmakers might make a deal on some type of national red flag law, which would allow the police to take guns away from people judged to be an imminent danger to themselves or others.

Senator Chris Murphy, Democrat of Connecticut, has been leading a bipartisan group of senators that is considering establishing a more comprehensive federal background check system, a reform supported by 88 percent of Americans.

We have seen these bipartisan efforts on gun safety measures come and go without results. Still, in the face of Republican intransigence, Democrats — Mr. Biden, in particular — should do whatever they can. Senator Murphy, who has led the charge for tougher gun regulations since Sandy Hook, put it well on the floor of the Senate this past week:

“What are we doing?” he asked his colleagues. “Why do you go through all the hassle of getting this job, of putting yourself in a position of authority” he wondered, if the answer is to do nothing “as the slaughter increases, as our kids run for their lives?”

It’s a question that speaks to the Senate directly and the entire system of American government more broadly. Yes, the country’s democratic system represents the diversity of views in this country on guns. But as currently structured, Congress is fundamentally unresponsive to the needs of its most vulnerable citizens and has been corrupted by powerful interest groups, allowing those groups to block even modest changes that the vast majority of Americans support.

We Americans all share this vast country and need to figure out how to make it better and keep one another alive and thriving. Right now, we’re failing at that primary responsibility. There are glimmers of hope, especially at the state level, that things are changing. But even there, progress is agonizingly slow and won’t be enough for the hundreds of Americans who will be shot today and tomorrow and every day until action is taken.

Unquote. 

The Times editorial board says we Americans” are failing. Earlier in the editorial, they say the United States is failing. In other editorials, they’ve said Congress is failing. They only once suggest that it’s Republican politicians who are resisting gun control legislation (“in the face of Republican intransigence”), and that their resistance is causing “we Americans”, the United States and Congress to fail.

The Times doesn’t suggest it, but there’s one way to address “our” failure. There are already so many guns in circulation that the problem might never be sufficiently addressed, but there’s a sure-fire way to make a dent in it:

  1. Elect Democratic presidents.
  2. Elect a Democratic majority in the House of Representatives.
  3. Elect a Democratic majority in the Senate, a majority that includes enough senators willing to abolish or reform the Senate filibuster (the Senate’s absurd rule that permits 41 senators to stop the other 59 from passing most legislation).
  4. After taking care of the filibuster, the Democratic president and Democratic Congress will be able to do lots of things, including gun control legislation.
  5. Among all those things will be adding four qualified justices to the Supreme Court, the number of justices needed to restore sanity there.

If that sounds too complicated, there’s a simpler solution:

  1. Nobody ever votes for a Republican again.

At the Heartbreak Hotel on Desolation Row

Let’s consider the Supreme Court’s radical right Gang of Five. They’re trying to take America back to 1953 or so, if not earlier, ignoring what the majority of Americans want.

Three of them (Gorsuch, Kavanaugh and Coney Barrett) are the only three justices in US history who were both (1) selected by a president (D____ T____) who lost the popular vote and (2) approved by a group of senators who represented less than 50% of American voters. (That particular president took office only because the national news media was fixated on the email practices of the Democratic candidate and the director of the FBI broke his agency’s own rules by releasing “news” that harmed the Democrat a few days before the election.)

One (Gorsuch) took his seat on the Court after Senate Majority Leader Mitch McConnell blocked consideration of Barack Obama’s nominee, Merrick Garland, for a record 293 days, saying the upcoming election precluded any talk of a nominee.

McConnell got another one of them onto the Court (Coney Barrett) when he reversed the “rule” he’d invented for Garland. She was nominated by T____  just 38 days before the 2020 election (when votes were already being cast) — another record.

The fourth member of the Gang of Five (Alito) was nominated by a president (George W. Bush) who lost the popular vote the first time he ran. He might have also lost the Electoral College if the five Republicans on the Supreme Court had allowed Florida to keep counting votes (just think, President Gore would have meant leadership on the climate crisis and no Iraq war).

Alito is the author of the draft decision overturning Roe v. Wade, which he called an “egregiously bad” decision. He apparently came to that conclusion after his 2006 Senate hearing, during which he told the US Senate that he’d look at abortion with an “open mind”.

The fifth justice (Thomas, nominated by George. H. W. Bush) ascended to the Court after lying to the US Senate about his bad behavior (the senators didn’t believe Anita Hill). He was the first Supreme Court justice approved by senators from states representing less than half the country. Although his wife openly supported the January 6th insurrection, he proceeded to cast the only vote in favor of keeping insurrection-related emails secret.

All five of the Gang are Catholics, as is the sixth Republican on the Court (Chief Justice Roberts, the second justice chosen by Bush #2). None of them told the Senate they would overturn Roe v. Wade if given the chance.

Meanwhile, the Republican justices have been making our politics less democratic, less representative of the nation as a whole, by allowing more money into politics, weakening the Voting Rights Act and refusing to do anything about the rampant gerrymandering of congressional districts. All of this has made it less likely Democrats will be elected and much less likely that conservative institutions like the Court, the Senate and the Electoral College will ever be made more responsive to public opinion.

In other words, we’re screwed.

The American journalist Alex Pareene explains why, furthermore, electing more Democrats might not make much difference:

One of the more consequential contradictions of the Democratic Party is that the vast majority of its staffers, consultants, elected officials, and media avatars, along with a substantial portion of its electoral base, are institutionalists. They believe, broadly, in The System. The System worked for them, and if The System’s outputs are bad, it is because we need more of the right sort of people to join or be elected to enter The System. . . .

Institutionalists, in my experience, have trouble reaching an anti-system person, because they think being against The System is an inherently adolescent and silly mindset. But believing in things like “the integrity of the Supreme Court” has proven to be, I think, much sillier, and much more childish.

In the beginning of Joe Biden’s presidency a lot of very intelligent people tried to come up with ideas for how to change the Supreme Court, which is poised to spend years eroding the regulatory state and chipping away at civil rights. Expand it, perhaps. Or marginalize it. President Joe Biden, a committed institutionalist, formed a commission of legal scholars—from across the ideological spectrum, of course—to investigate what ought to be done about it. They failed to come up with any answers. “Lawmakers,” the commission wrote, “should be cautious about any reform that seems aimed at the substance of Court decisions or grounded in interpretations of the Constitution over which there is great disagreement in our political life.” You might be mad at the Court because of the decisions it produces, but it’s essential that everyone still trusts the processes that led to them.

This was a white flag. I think some people in the White House have some sick hope that the end of Roe will galvanize the midterm electorate. Something like that may indeed happen. But if they wish to understand why the president has been bleeding youth support for the last year they should try to imagine these young people (and “young”, at this point, has expanded to like 45) not as the annoying and hyper-engaged freaks they see on Twitter every day, but as ones they don’t see anywhere, because, having been urged to pay furious attention by people in the party, they discovered that those people had absolutely no realistic plans to overcome entrenched, systemic obstacles to progress. . . . 

The legitimacy crisis is that our institutions are illegitimate. For my entire adult life, beginning with Bush v. Gore, our governing institutions have been avowedly antidemocratic and the left-of-center party has had no answer for that plain fact; no strategy, no plan, except to beg the electorate to give them governing majorities, which they then fail to use to reform the antidemocratic governing institutions. They often have perfectly plausible excuses for why they couldn’t do better. But that commitment to our existing institutions means they can’t credibly claim to have an answer to this moment. “Give us (another) majority and hope Clarence Thomas dies” is a best-case scenario, but not exactly a sales pitch.

Unquote.

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