Election 2024: Paradigm Shift

Two events in the space of five days altered the contours of the fall national election and the stakes for the survival of the Republic in 2025 and beyond. To avert catastrophe, anti-Trump forces must shift their focus from the presidency to Congress.

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.

That line from then-Special Counsel Robert Hur's report released in February on President Biden's own "Documentgate" scandal prompted an outpouring of attacks and vitriol from the Biden White House and his allies in the House and Senate. After Biden's cataclysmic debate performance against former President Trump on June 27, Hur's assessment of Biden's cognitive abilities looks positively charitable. And Biden's follow up sit down with ABC News seems to have only made things worse.

As of Saturday morning (July 6), the number of House Democrats calling on Biden to exit the race has climbed to five, and by Sunday key House Democratic committee leaders had told Minority Leader Hakeem Jeffries (D-NY) that Biden had to exit the race. Senate Intelligence Committee Chairman Mark Warner (D-VA) is reportedly talking to his Democratic colleagues about how to get Biden to bow out. 

Warner is not a man prone to political panic attacks, which is why his current effort is a clear indicator that he believes Biden could drag down some Senate Democrats who in other circumstances would likely coast to reelection.

Biden's seeming political implosion was followed on July 1 by a Supreme Court decision that will go down as one of the most anti-constitutional, ahistorical, and demonstrably ludicrous exercises of legal gymnastics in U.S. history. It is also the most reckless and executive power friendly decision ever issued by the nation's highest court. I'm speaking of course of Trump v U.S., the case in which former President Trump asserted, and pretty much got, "total presidential immunity" for anything he or any successor might do while in office. 

You can read a pretty good summary of the effect of the decision here, and you can find here a reminder of what Trump wanted to do with his presidential power against protesters the last time he was in office.

He has since reaffirmed his intent to go after his political opponents, and has since added the potential option of military tribunals for them as well. There is also his intent to round up and put into concentration camps illegal migrants (and perhaps others), purge federal agencies and departments of career civil servants and replace them with political sycophants, and consolidate presidential control over relatively independent agencies.

As a result, the new battle over who will be the Democratic Party presidential nominee has been intensified by the Trump v U.S. ruling and Trump's almost daily threats to effectively crush those who oppose him.

But that internal party battle has another component, one that is even more important than whether any Democrat nominated to face Trump can beat him: control of at least one chamber of Congress. This is important for two reasons: the need to reshape the composition of the federal judiciary, and the imperative to deny Trump the funds he needs to carry out a domestic reign of terror. I'll start with the federal judiciary problem.

Our Founders may have had many flaws, but the one thing they all understood is that concentrated power was the single greatest threat to the survival of a republic, especially if that power fell into the hands of someone utterly unscrupulous. That knowledge informed their decision to create a form of government with, at least ostensibly, separate centers of power. The Founders believed that such a system would create restraints on the Executive branch such that a monarchial-style tyranny would be impossible.

As we've discovered, those assumptions were well intentioned but flawed.

Over the last 100 or so years, successive Presidents and supporters of presidential power have been successful in eroding those ostensible checks and balances. One of the clearest examples of that is how heavily populated the federal judiciary with former executive branch legal advocates.

First released in 2019 and updated in 2021, this study of the backgrounds of federal judges demonstrates that the ratio of federal judges with executive branch backgrounds (former lawyers in federal departments/agencies, former U.S. Attorneys, etc.) versus those without federal experience is anywhere from 10 to 1 to 12 to 1, depending on how you slice the data. This is especially relevant as it pertains to then-President Trump. As the study notes:

As will likely come as little surprise to his detractors, President Trump made the situation worse—indeed, markedly worse. As documented below, Trump exacerbated the already substantial disparity on the federal bench between judges who used to represent government in court versus judges who used to challenge government in court. Indeed, Trump appointed over twelve times more judges who had worked exclusively as government advocates than judges with backgrounds in criminal defense or plaintiff-side civil rights litigation.

In the Trump v. U.S. "total presidential immunity" case just decided by the Supreme Court, five of the six Justices in the majority opinion are former executive branch legal advocates. I don't believe for a moment that's a coincidence in terms of how this case came out. The only solution to this radical and dangerous pro-presidential power tilt in the federal judiciary is to change the criteria for the appointment and confirmation of federal judges.

We need a system that explicitly prohibits the appointment or confirmation of judges with executive branch-only professional backgrounds. The only way we have a chance of getting a system like that is if Democrats accept that this is an existential problem that must be fixed. I'm guessing that in the wake of Trump v. U.S., it's probably going to be easier to make that case now.

In the short to medium-term, it will be imperative that Democrats maintain control of the Senate if at all possible, or at least the ability to mount sustainable filibusters against any and all Trump judicial nominees, in order to prevent further executive branch subversion of the federal judiciary.

And because there's a real likelihood that Democrats will lose control of the Senate, it makes retaking the House just as imperative, if not more so.

Here's one thing that won't change if Trump does manage to beat the rap and regain the White House: he'll need money to carry out his plans. Lots of money.

By retaining control of either the House or Senate, Democrats can deny Trump the money he needs to try to go after his political opponents, create new concentration camps for illegal migrants or others, etc.  

Even if he succeeds in purging the federal bureaucracy of loyal civil servants and installing hundreds or even thousands of Trumpist sycophants, those individuals will still need to eat, pay their rent/mortgage, etc. And they can't do that if they're not getting paid.

It's amazing and terrifying that in the summer of 2024 those of us opposed to a potential Trump tyranny have to think in these terms, but we must. And we should also remember that no matter what a clearly compromised Supreme Court has said, America's national legislature retains the power to deny Trump the financial resources he needs to carry out his insane plans. All that is required for that to happen is for people like me and you to vote for House and Senate candidates opposed to Trump and his agenda.

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