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Saturday, November 28, 2020

We have not pulled back from the edge

Molly McKew argues that we did, if barely. But evidence suggests we still are heading off the cliff.

The election was close, no massive repudiation of the person who history will show as a worse president than the guy who started the Civil War and the guy who allowed the South to win. Jeff Greenfield argues that the past month has revealed the vulnerabilities in the political and electoral systems; it is a blueprint for a future authoritarian who is more competent, represented by better attorneys, able to come up with better facts, able to influence more state and local officials, and working with a marginally closer election. Trump has succeeded, aided by state and local officials, in convincing majorities of Republican voters that the election was stolen, through repetition and oathless hotel-ballroom show "hearings"* at which fanciful allegations are presented and accepted as true (unlike in court, where there are penalties for lying). Republicans--the same Republicans who have enabled, supported, and never abandoned the President through his antics, no matter how fanciful and dangerous to the democratic process--gained in the House and Senate, giving them a stronger position come January. The ongoing national political sorting reflects badly on Democrats' long-term prospects in Congress.

[*] A new one has been announced for Arizona for Monday.

The Biden Presidency is DOA. Some percentage of voters, egged on by Trump and Republican officials at all levels of government, do not believe Biden legitimately won the presidency (or won it at all), because the election was irretrievably tainted by overwhelming (if unpresented or unreliable) evidence of fraud. Large numbers of people, including those holding the levers of political power, will wield this "lost cause" narrative y to oppose everything he attempts for the next four years.* There will be no legislative action, as McConnell has no incentive to work with Biden to actually govern for the benefit of the public. Has any president appointed zero judges?** Might McConnell attempt to reinstate the filibuster for appointments, neutering the few Republican Senators (Collins, Murkowski, Romney) who might vote to confirm Biden nominees? Federal courts and ex-officials (hi, Bill Barr) will discover previously unknown limits on unilateral executive power, including the use of acting cabinet members. Universal injunctions are looking good again. And suspicions and aspersions will be cast on every future election.

[*] Any comments comparing the lonely tilting at windmills by John Lewis and a handful of other will be deleted. Save us both the time.

[**] There are no current appellate vacancies. But Marin Levy has shown that approximately 60 active Democratic-appointed circuit judges are eligible for senior status. A critical mass of this group taking senior status could reshift the court balance. But any vacancies will remain unfilled until a Democratic Senate or a Republican President. Which do we think is more likely to happen first?

McKew recognizes that the answer to her question is not clear, presenting two options.

The election of Joe Biden is still, in a way, a condemnation of America — a defeat of Trump, but not Trumpism, a small-minded, self-centric view of the world that is anti-system rather than collaborative, brittle rather than resilient, hollow rather than vital, and fundamentally defined by the idea that others must suffer for you to do well.

With any luck, this particular red-hatted cult madness will wane, its power less effective when it is viewed in the rear view mirror, a neon-lit road-side mirage that seemed so marvelous in the night, but now garish and rusted and cheap in the light of another day. A realization that the identification of problems is not enough to solve them, that if dehumanization and cruelty are the “policies” you like, maybe you need to have a look at what that says about you.

But Trumpism could also become sharper with smarter, less lazy champions of its dark and anti-democratic ideals. Personalities who are more acceptable, and better able to hide the intention behind cruel policies. While many were drowned by the surging tide of Trump, and others seemed to ride with him a while only to be smashed into the rocks when he crashed into the shore — there were a small number who rode the wave, never at the crest, never subsumed, but surfing, surfing the edges, carried along by the madness, now alighting unscathed, and waiting, waiting to fight for the crown that Donald Trump never attained but made real for too many who should know better and want more.

Other than Biden's comfortable-but-closer-than-expected-and-hoped-for victory, the answer, to me, is the latter rather than former. The results of this election and the post-election madness, aided-and-abetted by most Republicans, supports that answer. And the early 2024 contenders (Cotton, Cruz, Hawley, Rubio) are practicing their mini-Trumps, as is Trump himself, all convinced that this is the path to political victory.

Posted by Howard Wasserman on November 28, 2020 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink


.1% in battle ground states.

More Dems voted in safe Dem districts and ran up the tally.

.1% in battle ground states

Fewer than 16% of counties voted for Biden.

Sectionalism is BACK, baby.

Posted by: thegreatdisappointment | Nov 30, 2020 11:35:00 AM

I don’t even know what a “mandate” really signifies in this day and age. It seems like a mandate and $1 will only get you a budget app download.

That said, in the PV to a large extent, and somewhat in the EC, it’s certainly about the same mandate that Clinton or Obama got on those occasions.

Unquestionably, it’s far superior to any supposed mandate ever claimed by Shrub or Trump.

Plus, he (Biden) decisively knocked out an incumbent singlehandedly, i.e. without any substantial help from a 3P candidate, e.g. Perot. I think that adds to the significance of the accomplishment.

Posted by: hardreaders | Nov 29, 2020 8:11:39 PM

"In no universe is a 306 Electoral College win and an over 51% collection for a winning candidate in the popular vote "close." Biden won in a landslide. He has a mandate."

I'll take it as a "mandate" but he went against a really horrible person who was horrible included in the time of a pandemic. "Landslide" there to me means more than winning over 51%. That is barely a majority.

Trump had to win the Electoral College. He lost PA and Michigan firmly. But, not so much the third state he won. As Paul Campos noted on another blog, in that quarter, it was rather close -- less than 50K to avoid a tie. (This was as of a few days ago.)

Posted by: Joe | Nov 29, 2020 5:49:00 PM

In no universe is a 306 Electoral College win and an over 51% collection for a winning candidate in the popular vote "close." Biden won in a landslide. He has a mandate.

That you feel it should have been an even bigger landslide doesn't change the definition of a landslide victory.

Posted by: facts not feelings | Nov 29, 2020 1:41:22 PM

"The Biden Presidency is DOA."

The presidency is too powerful for me to deem this as correct.

I am seriously bothered by the election. There is reason to. It is not just defeatist talk by Democrats who "can't admit they won anything." The Republicans expanding their seats in the House is not THAT surprising. Local races in conservative leaning districts (often with women candidates, sometimes people of color, who probably attracted various voters, if in a somewhat ironic way for the Trump enabling party) are tough to hold on to.

But, Biden did win the presidency, including in Georgia and Arizona. Without the benefit of incumbency, it very well might be possible to defeat a Republican presidential candidate in North Carolina. The race was close enough there. Florida always seems a tease to Dems, but that too is not a lost cause, probably. More voting rights there might help.

The presidency has broad powers, including regulations and in foreign affairs particularly. The courts and Congress will be bothersome there, but only up to a point. Judges or Congress, e.g., can't force the Biden Administration to execute people. And, the veto and at least for a few years, control of at least one house of Congress will stop legislation that would tie his hands more.

But, we have cause to worry. I don't know how much. A lot can happen in a a few years. Biden in the White House will alone change the situation somehow. That might actually HELP Republicans since voters often split ticket and in marginal cases now they will feel safer to do so. But, we shall see. This includes how much the Republicans continue to play hardball in the Senate with at most a two person majority.

Posted by: Joe | Nov 28, 2020 5:55:54 PM

Just a comment that the GOP lost worse than we all expected in the senate, but unquestionably lost seats and did not "gain."

Posted by: Ben | Nov 28, 2020 10:36:21 AM

How does this post square with your belief that Breyer will retire by spring of 2022? Doesn't it make sense for him to hang on (assuming Ds don't take both Georgia Senate seats) and see how things unfold after the 2022 midterms (which pose a tough Senate map for Republicans)?

Posted by: PJG | Nov 28, 2020 9:43:19 AM

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