Biden can’t win. Can Democrats avoid defeat?
BACKGROUND
See,
(1) Michael S. Schmidt and Mark Mazzetti, “Schiff Warned of Wipeout for Democrats if Biden Remains in Race; Representative Adam B. Schiff of California told attendees at a Democratic fund-raiser that the party would lose the Senate and miss a chance to take the House if the president did not drop out,” New York Times, July 16, 2924 (10:32 a.m. ET).
(2) Doug Sosnik,”Biden’s Path to Re-election Has All But Vanished,” Washington Post, July 12, 2024 (Graphics by Quoctrung Bui).
Mr. Sosnik was a senior adviser to President Bill Clinton from 1994 to 2000 and has advised over 50 governors and U.S. senators.
(3) James Rowles, “Gavin Newson and Gretchen Whitmer: The Democrats' winning ticket is sitting on the bench,” Trenchant Observations, July 11,2024.
(4); Peggy Noonan, “Biden Can’t Spin His Way Out of This; The president’s handlers think he can plow ahead, but his position will only get worse. What a tragedy,” Wall Street Journal, July 3, 2024 (5:27 pm)
On July 12, 2024, Doug Sosnik published a fascinating op-ed piece in the Washington Post. In it Sosnik demonstrated persuasively, with poll numbers and charts of historical trends, why it is extremely unlikely that Joe Biden can win the presidential election on November 5, 2024.
Meanwhile, Schmidt and Mazzetti of the New York Times reported that Rep. Adam Schiff (D-CA) had raised the critical questions about Biden’s continued candidacy at a fundraiser in the Hamptons. They wrote:
Representative Adam B. Schiff, the California Democrat who is running for Senate, warned during a private meeting with donors on Saturday that his party was likely to suffer overwhelming losses in November if President Biden remained at the top of the ticket, according to two people with direct knowledge of Mr. Schiff’s remarks at the meeting.
If Mr. Biden remained, not only would he lose to former President Donald J. Trump, he could be enough of a drag on other Democratic candidates that the party would most likely lose the Senate and miss an opportunity to win control of the House, Mr. Schiff said at a fund-raiser in New York.
“I think if he is our nominee, I think we lose,” Mr. Schiff said during the meeting, according to a person with access to a transcription of a recording of the event. “And we may very, very well lose the Senate and lose our chance to take back the House.
Schiff, a leading Democrat in the House, currently has a wide lead in his race for a Senate seat in California.
Joe Biden is in total denial regarding his poor chances in November and the grave concerns which exist among Democrats following his disastrous performance in the presidential debate with Donald Trump on May 27, 2024.
He does have supporters. Among the strongest are Donald Trump and leaders in the Republican Party, who obviously think he will be easiest Democratic candidate to beat.
As Schiff asserted, the elections in November are about much more than whether Biden wins reelection and defeats Trump.
It is possible that Biden could eke out a narrow victory over Trump, but America could still lose.
If the Republicans win the Senate, they will be able to block Biden nominations to the Supreme Cour, leaving the current right-wing majority in control.
If the Republicans win the Senate and the presidency, they might be able to appoint several more right-wing ideologues to the Supreme Court increasing the prospects that the present rogue Supreme Court will continue to thwart Democratic initiatives and to turn the Constitution on its head.
The Court has demonstrated that it is the firm control of a right-wing extremist majority in three important recent decisions.
First, in Dobbs v. Jackson (June 24, 2022), the Court overthrew Roe v. Wade (January 22, 1973) and the constitutional right to abortion, jettisoning some 50 years of constitutional jurisprudence.
In the second decision, Trump v. Anderson (March 4, 2024), the Court read Section 3 of the 14th Amendment out of the Constitution. In that case, the U.S. Supreme Court reversed a decision by the Colorado Supreme Court upholding the finding by a Colorado jury that Donald Trump had supported an insurrection and that under the specific language of Section 3 and state law he could not hold any federal or state elected office.
As it did in Bush v. Gore in 2000, the Supreme Court ignored precedents holding that it should defer to state supreme court decisions interpreting state law, here the law regulating who can be on the ballot.
The principal limitation on this principle is if the case involves the violation of a U.S. constitutional right. In Bush v. Gore (2000) the Court invented one, never mentioned before and never to be cited as precedent in the future, in order to hand the presidency to George W, Bush.
In Trump v. Anderson, by reading paragraph 3 of the 14th Amendment out of the Constitution, the Court allowed Donald Trump to appear on the Colorado ballot and in effect on ballots throughout the country.
It is hard to fathom why the three liberal justices on the Court went along with the majority opinion. Perhaps they were afraid of the consequences in the street if they banned Trump from the ballot. As a matter of constitutional law, their acquiescence with the decision of the majority was a blatant abdication of their duty to uphold the Constitution.
Leading constitutional scholars and former judges, both liberal and conservative, both Democratic and Republican, were firmly of the view that Section 3 applied to Trump and that he should be barred from the ballot. The legislative history and contemporary understanding of the reach of Section 3 when the 14th Amendment was ratified by the states clearly supported the conclusion that Section 3 was intended to apply to a case like that of Trump.
The third decision addressed the question of presidential immunity from prosecution. In Trump v. United Stares (July 1, 2024), the Supreme Court overruled a decision by a federal court of appeals, and held instead that the president is entitled to immunity from prosecution for any of his official acts, leaving it to the lower courts, and ultimately to the U.S. Supreme Court, to decide what actions were official acts. Moreover, tbe Court went even further, holding that evidence related to the president’s official acts could not be used by the prosecution in a criminal case even when the president was being prosecuted for non-official acts.
By holding that, in practical effect, the president is above the law, the Court opened the door to establishment of a dictatorship in the United States.
The immediate effect of the Court’s decision has been to delay the prosecution of Trump for the federal crimes for which he has been indicted in Washington.D.C. (the January 6 case), and in Miami, Florida (the classified documents case).
Further complicating matters, on July 15, 2024, Judge Aileen Cannon in Miami dismissed the classified documents case, on the ground that the Special Prosecutor, Jack Smith, had improperly brought the case because he had not been confirmed by the Senate. Her decision flew in the face of 25:years of settled precedent and Justice Department practice, even under President Trump. Smith will appeal the decision to the 11th Circuit Court of Appeals.
The Supreme Court’s immunity decision in Trump v. United States has even given Trump’s lawyers in the Stormy Daniels hash money case, in a New York state court, grounds for appeal and an extended delay in Trump’s sentencing for the 34 felonies for which a Manhattan jury found him guilty on May 30, 2024,
The November elections will determine whether Trump can further guarantee control by a right-wing extremist majority of the Supreme Court, for the rest of our lifetimes, or whether the Democrats can win the presidency, retain the Senate, win back the House, and adopt legislation that would expand the membership of the Court.
Should the Democrats win both houses and the presidency, it might then be possible for them to increase the number of justices on the Supreme Court, in a manner which restores balance to the Court’s interpretation of the Constitution.
In short, one of the biggest stakes in tbe November elections will be who controls the Supreme Court for the rest of our lives.
Second, the outcome of the November elections is likely to determine whether the United States continues to support Ukraine with military and economic aid, and whether it continues to lead the Atlantic Alliance (NATO) in opposing Russian aggression in Ukraine, thereby upholding international law and the U.N. Charter-based international legal order.
If Trump wins, the future of Ukraine will be placed gravely in doubt.
If Republicans retain control of the House, further aid for Ukraine is unlikely to be approved, or even if approved is likely to be greatly reduced.
We should not be stupid.
Viktor Orban of Hungary recently visited Trump in Mar-a-Lago. He then visited Vladimir Putin in Moscow, before subsequently visiting Xi Jinping in Beijing. On Monday, July 15, Trump chose Senator J.D. Vance to be his vice-presidential candidate. Vance has been an adamant opponent aid to Ukraine.
The pro-Russian Republican Party is no longer the party of Abraham Lincoln, Theodore Roosevelt, Dwight Eisenhower, Ronald Reagan, and George Herbert Walker Bush. It has become the party of the fascist movement in the United States led by Donald Trump.
Even if Biden ekes out a narrow victory, America could lose if the Republicans win the Senate and the House, or just the House.
It appears very clear that Biden can’t win, and that if he proceeds with his candidacy the Democrats may lose both the Senate and the House.
The question for the Democrats, therefore, and particularly for those up for election, is whether they can avoid defeat.
The only path for the Democrats to pursue to avoid defeat in the Senate and the House would appear to be replacing Joe Biden with a more viable candidate.
Vice president Kamala Harris might have better chances to eke out a narrow victory than does Biden.
But she is not a strong candidate in her own right. Strategists should remember how she failed to gain traction in the Democratic primaries in 2020. Voters didn’t like her. She would be unlikely to win the nomination in an open primary. She owes her position as vice president to Congressman Jim Clyburn (D-S.C.) and to the identity politics of the Democratic Party.
However, the November elections are not likely to be won on the basis of the identity politics of the Democratic Party.Given the stakes in the elections, and we have mentioned only the most obvious, the Democrats need to select the strongest possible ticket, and not merely aim at eking out a narrow presidential victory while losing the Senate and/or the House.
They need to put together a ticket that will blow Trump and his pro-Russian Republican supporters out of the water.
The opportunity for the Democrats is there, to not only avoid defeat but to resoundingly vanquish the candidates of Trump’s pro-Russian Republican Party, while at the same time dealing a mortal blow to the American fascist movement he leads.
As we have noted, such a winning ticket is sitting on the bench in the persons of Gavin Newsom and Gretchen Whutmer, the governors of California and Michigan respectively.
If the Democrats can use their imagination and name Newsom and Whitmer to the ticket, these might lead a successful crusade that rids the country of the curse of Donald Trump and the cancer on the body politic represented by him and his supporters.
That would be a campaign of hope, looking to the future. It should find a receptive audience among Americans who are tired of constant drama and anger, and who are looking for hope and the promise of a calmer, brighter future.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities. He is the author of The Rape of American Democracy: Republican Actions and Democratic Failures, 2016-2021. What We Knew and When We Knew It (forthcoming in August, 2024).
***
Support the Author
We encourage you to join the community that supports the Trenchant Observations newsletter.
You may sign up for a free subscription. But to receive all of the content as soon as it is published and to support the newsletter, please upgrade to a Paid or Founding Member subscription. To do so, click on the “Subscribe now” button below.
Alternatively, you may make a contribution to the author’s Go Fund Me appeal by clicking on the last button below. Go Fund Me does not take 10% as Substack does.