Deinstitutionalization

Another bad night for a weak party.

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135
(via Getty Images)

In many cultures, holidays are celebrated in tandem, on consecutive days. Halloween is followed by the Day of the Dead; Christmas is followed by Boxing Day; Thanksgiving is followed by Black Friday; New Year’s Eve is followed by, uh, New Year’s Day.

There’s a special pairing for pundits: Election Day is followed by The Feast of Hot Takes.

On The Feast of Hot Takes, you gather piecemeal results spread across different regions from the previous evening and arrange them to form a mosaic that perfectly matches your priors. If you’re pro-choice, a good night for the pro-choice party means the election was about abortion. If you hate Donald Trump, a bad night for Trump’s party means the election was about Trump. If you can’t bear the plain truth that Joe Biden is now the underdog in 2024, a good night for Biden’s party means he isn’t actually an underdog.

Readers should take special care when consuming commentary on The Feast of Hot Takes, as those of us who make a living preparing it are never more blinded by our prejudices than today. The more cynical among us might have even prepared their reactions in advance of the results. 

Before succumbing to that blindness myself, I’ll resist it (a little) by pointing out that Tuesday’s results weren’t that bad for Republicans.

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  1. Avatar photo
    Ben Connelly

    “Democrats can promise to codify the Roe regime in a federal statute—making abortion legal again in all 50 states—and end the filibuster in the Senate if necessary to do.”

    And then, when some Republican eventually got into office, the Democrats would scream bloody murder about norms and the Constitution and wonder how on earth anyone could possibly have taken steps to dismantle checks on power that might possibly have served as stumbling blocks for the proto-fascist-Uber-ultra-super-dark-MAGA-postliberals (or whatever we’re calling it these days). Gee, I wonder how we got Trump?

    If Democrats run on eliminating the filibuster and codifying Roe, it’ll drive up turnout for Trump among the disaffected conservative crowd that otherwise would consider voting for the other side to keep him out of office. Half the Dispatch audience would consider a vote for Trump.

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    Delenda Est

    "It’s not just a matter of wanting to roll back Republican bans on the merits, I suspect, but an outlet for the accumulated frustration they felt as Trump went about appointing the justices who would obviously end up unmaking Roe. Their desire for revenge still hasn’t been sated."

    Let's not forget either the *manner* in which those Justices were appointed. For Democrats, the Roberts Court suffers from a decisive descent in legitimacy. Mitch McConnell engaged in an outright violation of the Constitution, in order to shutout Merrick Garland from being appointed to the Court by Obama; and then, owing entirely to Trump's nationally unpopular EC election victory, Republicans were able to stack the Court with Conservative ideologues. It's Kavanaugh that sticks in the craw for most Democrats, but in point of fact the legitimacy of Gorsuch and ACB are more in doubt: Gorsuch occupies the Supreme Court seat stolen from Obama, and Barrett was a last-minute installation which expressly contradicted the (fig-leaf) rationale that McConnell gave for refusing to recognize Garland or any other nominee that Obama would put forward.

    So Yeah, let's talk about "Deinstitutionalization." Republicans celebrate McConnell's Machiavellian genius in his Unconstitutional power-grab that kept Garland off the bench - which yet stands in the starkest possible contrast to the three decades of bitching and moaning the GOP gave us over the (bi-partisan!) votedown of judge Bork back in the 80's. Unlike Garland, Bork at least got a VOTE!

    I'm sure McConnell smugly believes that he stole a march for the power of the Senate over the Executive, with his shutdown of Obama's appointment-power. But all McConnell did was sow the seeds for a true Constitutional crisis, the next time a Senate majority leader attempts to pull his same move on a future President.

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    1. R

      It was clearly a break in precedent/protocol, but it was not unconstitutional for McConnell to withhold consent from a nominee that the majority party did not support. I never believed the 'fig leaf' rationalization, and no other intelligent observer at the time did either. I would have preferred he was honest about what he was doing, and why, but such is our politics these days that the 'fig leaf' is to be expected. But all of that said, unconstitutional it was not. The rules of the Senate mean the majority leader has every right to deny a vote on a nominee the majority party considers unacceptable. And while we're on the topic of precedent, this 'arms race' with respect to SC nominees absolutely started with the Bork nomination, vote or not.

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      1. Avatar photo
        Jconstantino199

        What McConnell did was set the precedents that no nominee from any future President will ever be allowed an up or down vote if the Senate is controlled by the opposing party. Period.

        This kind of brazen break from norms only works if you assume that your party will always be in charge of the Senate, because otherwise all McConnell succeeded in doing is locking out any future bi-partisan SC appointments.

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        1. R

          I fear you are correct about that. I have consistently been displeased when the left breaks norms on the assumption they will perpetually be in power; the various attempts to remove the filibuster, or the efforts to pack the SC, for example. My point was that this was not an unconstitutional act. Unwise, perhaps, but not unconstitutional, and in my mind that is a very important distinction. I also stand by my assertion that this arms race of norm-breaking began with the Bork hearings and has been escalating ever since.

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  3. Avatar photo
    Rdpulfer

    I think abortion is about to become Schrödinger's Tiger in 2024. One possibility: Trump successfully defangs abortion with concessions to moderates on the other issue, as Nick highlighted. The other possibility: Trump winds up causing another beating at the polls by either running his mouth off on abortion, or by alienating his own pro-life constituents.

    The big issue is, failing a turn in headwinds, Biden really can't do anything to affect a positive outcome here. He's betting Trump will be his own worst enemy - which he isn't exactly wrong about - while sleep-walking to his own possible defeat in 2024.

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      Jconstantino199

      Concessions won't work anymore because it is assumed that no deal offered by the republicans in the future can be trusted... that ALL are just deceptions on the path to a complete ban.

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      1. Avatar photo
        Rdpulfer

        Good point, but whether Trump accepts that is another thing altogether. He seems himself as the ultimate dealmaker and seems to believe people will just accept whatever he offers. However, to your point, it seems highly unlikely that many concerned with abortion would trust Trump no matter what he offers, if only because the cruelest and most extreme anti-abortion voices spawn from the very MAGA movement he's fostered.

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  4. RGS

    How ironic it is that the Left who fought so hard to maintain Roe now find it a boon to its election chances. I know there are those who sincerely believe abortion is murder. But for me, overturning Roe was a great victory for democracy: let the people decide, not nine judges, and they will decide they want access to abortion. Unfortunately, there may be a few states where draconian laws will prohibit abortion for many poorer women. But for the great majority of states, politcal pressures should afford continuing access, validating abortion in our democracy.

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  5. Dhafvens

    One counter-point on abortion: if the Democrats run hard on a federal law preempting state laws restricting abortion, it would be one of the few things that could actually convince me (a conservative evangelical) to vote for Trump again. Such a strategy hits hard on both morality (murder) and on federal overreach.

    Is there a formal term for the fallacy of thinking a large part of the electorate must be just like me?

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    1. Avatar photo
      Chris

      If the democrats make it an election between an bumbling strongman and national infanticide, I would find no moral issue with saying Trump is too stupid to actually achieve the terrible ideas he has and vote for him. Even outside of the pro-life voting bloc, the electorate generally is unwilling to stomach abortion when a viable birth is possible. The Democrats are not savvy enough to thread that needle correctly and will get dragged by their left wing into a national right to abortion that will likely be unpalatable to the middle. It would be really dumb of the dems to run abortion front and center, everyone knows you're killing a baby even if they want to lie to themselves when talking about it.

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    2. Scianti7

      I don't think they can realistically pass an abortion law either for or against. It is unrealistic to me. It would be foolish to push that line or make that promise. Unfortunately, I've been around long enough to witness unspeakable foolishness.

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  6. Avatar photo
    Soniak21

    There's something elegantly logical about what's happened on abortion post-Dobbs—more logical than many things in politics. It's a simple case of the country seeking equilibrium.

    Imagine a pendulum. For 50 years, Roe kept the pendulum further Left than the actual national consensus. (Given that Roe required fairly permissive abortion laws even in deep-Red states, this seems straightforward to me.) If voters wanted moderation, or to seek policies closer to the true national consensus, the pendulum needed to swing Right. Hence the success of the pro-life movement for many of those years: The desire for equilibrium favored their side. Even if the average voter didn't want hard-core pro-life policies, they generally wanted the pendulum to swing Right.

    The Dobbs decision, and the Republican response to it—and yes, probably also a dash of progressive scare-mongering—reversed that. Red-state policies took a sudden lurch to the Right... and of course Democrats were eager to play up the excesses. With a patchwork of policies and proposed policies, it's hard to be scientific about this—but there's now at least the impression that the pendulum has swung to the RIGHT of the true consensus.

    So... the pursuit of equilibrium now means the average voter wants the pendulum to swing LEFT (yes, even if they don't support hard-core pro-abortion policies).

    This explains both the string of pro-life losses—and also why the Right seems just a bit perplexed by it. They're used to a landscape where the basic political physics of this issue worked in their favor—i.e., voters during the Roe years wanted the pendulum to swing Right. This surely led a lot of pro-lifers to the simplistic conclusion that "the electorate is on my side."

    But it wasn't really. It just wanted a *correction.* Now that Republicans have OVER-corrected, the electorate has swung the other way.

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  7. Indisguise

    You mentioned what if China invades Taiwan as a reason to vote for Trump. That's another reason to vote for Biden. Trump is likely to call it a territorial dispute like he did Ukraine. Biden will defend Taiwan. He might be too slow. Maga will pull out the stops to help China like they did Russia.

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  8. Kbg

    For national elections, it is sad to say but very few of our votes even matter. Look at a map of every state and visually you see R/rural, D/urban is absolutely dominant. The population split between urbanization and rural then determines the political party in charge of the state with the exception of the swing states...which are usually balanced in this split population wise.

    To my point...I think the only polls that matter in terms of what might actually happen are those that target where the swings could happen. On presidential election nights the professional pollsters and politicos (like Karl Rove) do a great job of identifying what matters and where. To date, I haven't seen any polling focused on where it matters. Anyone know of some early polling along these lines?

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  9. Scarloc

    Are low poll numbers a year out the definition of “underperforming”? Does anyone believe the NYT poll that says Trump only losing the youth vote by 1% or getting upwards of 22% of the black vote? To quote Old Joe, “Cmon Man!”

    The polls that matter (taken Election Day) Biden and the Dems have fared pretty well. I mean he literally got the most votes ever, that has to mean something right?

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    1. Scianti7

      It meant something in 2020, in that situation with those circumstances. People are fickle & change over time as do circumstances. However, it is hard for me to understand anyone voting for someone who published a statement saying they think the Constitution should be revoked so they can return to power. That seem super duper unAmerican.

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    O.W.L.

    Biden is old, but he's physically in good condition, and he's been a word salad chef for as long as he's been in politics. His salads have some basis in reality. Trump is old, fat, and crazy as a rat in a coffee can. His endless replaying of the same old same old reminds me of grandpa just before we had to put him in memory care.

    The Democrats would be dumb to campaign on abortion as a specific issue. They'd be smart to use abortion as an example of how Republicans want to take freedom away from people. They should also hang the Project 2025 blueprint around the Republican neck and play lots of clips of the ghoulish Stephen Miller and the wackadoos Kash Patel, Russ Vought and all of the other little creeps that will be running our government if people elect Trump again.

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    1. Avatar photo
      Ed

      "Biden is old, but he's physically in good condition, and he's been a word salad chef for as long as he's been in politics. His salads have some basis in reality."

      *blinks*
      I do not think he is in good condition physically. The man can barely walk up stairs, wanders off stage at odd times, etc.
      He actually looks like the guy that needs to be committed, but his family (Democrats) is so dependent upon his largesse that they keep propping him up to roll him out one last time...

      "Trump is old, fat, and crazy as a rat in a coffee can"

      Pretty much true. I hate to admit it, but he might be smarter than I ever gave him credit for (which is a pretty low bar).

      I know many of us think this, but is this really the best we can do??!!!

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      1. Coyneric

        How often do you see Biden in person going about his daily routine? A few cherry-picked instances of bumbling, doddering and wandering caught on camera hardly reflect anyone's physical condition.

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          Ed

          Unfortunately, there are many, many instances of him bumbling, doddering, and wandering. Considering the limited number of appearances he puts in, the percentage is alarmingly high.

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