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Some Democrats Are Working on Plan B

On Tuesday, 45 Republican senators voted against tabling a motion from Sen. Rand Paul (R-KY) that would have declared Donald Trump's upcoming impeachment trial to be unconstitutional. That means that 55 Democratic/independent/Republicans were able to kill the motion, but it also means that those 45 Republicans have given a strong signal that they will vote for acquittal on the basis of a technicality. This will allow them to avoid taking a politically difficult stance on the question of whether or not Trump is guilty of sedition. Clearly, these folks have been watching Chief Justice John Roberts and taking notes. And now that those 45 Republican senators have essentially declared the upcoming trial to be unconstitutional, and have carved out a politically salable position, Democratic hopes that Trump will be convicted at the trial beginning Feb. 8 have dropped to almost zero. So, some of them are now working on Plan B.

To start, Sen. Tim Kaine (D-VA) is working on drafting a resolution that would condemn Trump. He thinks it might be able to get more than the 55 votes that Tuesday's vote got. Since censure is not mentioned in the Constitution, it would be tough to argue that censuring an ex-president is unconstitutional. And though the Senate has never censured an ex-president, they have censured sitting presidents (Andrew Jackson, James Buchanan, and William Howard Taft), so there is no argument that only members of the Senate can be censured. And depending on how the censure motion is worded, it could be tricky for Republicans to vote against it. "You were not willing to go on record as saying that a sitting president should not suborn insurrection?" is what their 2022 (or 2024, or 2026) opponents will say.

Another possibility would be for the Senate to invoke the Fourteenth Amendment, which says that people who have participated in an insurrection against the United States may not hold public office. It will not be easy for them to do this by decree, at risk of being smacked down by the courts, but they do have means of referring the matter to a U.S. Attorney or other prosecutor for resolution.

That said, thus far Majority Leader Chuck Schumer (D-NY) is planning to go forward with Plan A: the trial. It could be a short trial, however; just long enough to get all 100 senators on record. If Trump falls out of favor in a year (possibly due to being convicted on state charges), having voted to acquit could hurt some Republican senators. One of the supporters of a trial is Sen. Joe Manchin (D-WV), probably the most conservative Democrat in the Senate. It is also possible that after a Senate trial, Kaine's censure motion will be offered and passed by a majority. (V & Z)

Trump's Targets

Now that it is clear that Donald Trump won't be convicted by the Senate unless something very unexpected happens at his trial, he is looking for his next targets. He is not the kind of guy to bide his time until a possible 2024 race. So what might he do while tearing pages off the calendar? There are a multitude of options available for him.

The unexpected vacancy for an Ohio Senate seat is a big one. Trump clearly prefers Rep. Jim Jordan (R-OH), one of the most outspoken Trumpists in the House. Jordan was one of the key Republicans in Trump's first impeachment hearings, strongly attacking every Democratic witness. He is clearly Trumpier than Trump, so the Donald could spend some time helping him get the Republican nomination for the seat of departing Sen. Rob Portman (R-OH).

Another bit of low-hanging fruit is Sarah Huckabee Sanders, who lied her sweet heart out for Trump as press secretary. Surprisingly, sometimes even he can show a bit of loyalty. She is running for governor of Arkansas against several Republicans far more qualified than she is, so she could use a bit of help. Trump's case would be: "Yes, Lt. Gov. Tim Griffin (R-AR) and Attorney General Leslie Rutledge (R) are far more experienced than she is, but she is the most loyal to me, and that is the only thing that matters."

Probably Trump doesn't actually give a hoot who is governor of Arkansas, assuming he can even find it on a map. But his real interest is never helping "friends." His true love is punishing his enemies. So while he might give Jordan/Sanders some of his time and attention (after all, you can only golf so many rounds a day), we think he will focus on defeating the 10 Republican representatives who voted for his impeachment. This will mean finding and encouraging the Trumpiest Republicans possible to challenge them in primaries. If he can manage to defeat all 10 of them, it will make every Republican in the country quake in their boots. They won't fear the tweet of death, since @realDonaldTrump is no more. But they will certainly fear having Trump get involved in their primaries and actively working to defeat them. This will give him absolute control over the Republican Party.

But this also comes with a downside. If Trump is damaged by criminal or civil trials in New York and/or Georgia, and possibly a federal trial as well, his potency may be reduced. And if he gets deeply involved in the 10 GOP House primaries and most of the incumbents win, he will quickly be labeled a paper tiger and all his power will be gone. Such an outcome is not impossible as Sarah Longwell, who ran the RVAT Project, is trying to raise $50 million to help the "anti-Trump ten." But Trump is not the kind of person who will think this out carefully, commission a few focus groups, and then make a decision. He is more like a toddler. He hates the ten traitors and wants to get even, and right now. (V)

The Pentagon Wants Its Money Back

The Pentagon was never happy with Donald Trump diverting billions of dollars that Congress had appropriated for military projects in order to build a wall on the Mexican border. Now that Trump has gone south, the Pentagon wants its money back. Specifically, Trump declared an emergency that he claimed gave him the authority to divert funds from military construction projects to wall construction. Joe Biden has now undeclared the emergency, so there is now no plausible legal basis for diverting the funds and the Pentagon wants its $3.6 billion back.

The Pentagon probably won't get the $922 million that has already been spent, but potentially it could get the rest back. Projects that were abruptly put on hold included a new fire station at a Marine Corps base in South Carolina and a new fire crash rescue station at an Air Force base in Florida. Also stopped were a new submarine pier in Washington, a missile field in Alaska, and a new Marine Corps battalion complex in North Carolina. Other projects supported military readiness, quality of life for the troops, and dealing with national security threats abroad. Dozens of projects in 14 states, three U.S. territories, and five foreign countries were halted by Trump's order.

There are also political implications of giving the Pentagon its money back. Under Trump's plan, most of the money was going to be spent in Arizona and Texas, which would have created construction jobs there. Now that more wall is not going to be built, the construction projects will be spread over states from Alaska to Florida and from Oregon to Maryland. The senators from those states will be able to crow about the jobs created there as a result of Biden's move. (V)

Democrats Need to Move Fast

Joe Biden has pointed out that he has four crises to deal with at once: the pandemic, the economy, climate change, and racial justice. He doesn't have a lot of time to deal with them. Basically, he has about one year. Starting a year from now, everyone's focus will be on the midterm elections. Congress will be paralyzed and do nothing, something it is quite good at. Could Biden carry out part of his agenda in 2023-2025? If the Democrats do well in the midterms, yes, but if they lose the House, obviously not. Let's take a quick look at the midterms.

The Democrats will have three factors working against them in 2022: history, reapportionment, and turnout. First, history. The president's party usually gets whacked badly in the midterms. Here is how they have done since 1938. When the bar below the president's name is the opposite color from the president's name and below 0, that means the president's party lost seats; when it is the president's color and above 0, his party gained seats.

The only times the president's party gained House seats in the midterms since 1938 were 1998 and 2002. Most likely those were reactions to Congress impeaching Bill Clinton and the 9/11 attacks. Absent something extraordinary like that, the president's party typically loses 15 to 60 seats in the House. Biden knows that since he had a front row seat to the "shellacking" the Democrats took in 2010 when they lost 63 seats.

Second, reapportionment. Even if all noses are counted, including those belonging to undocumented immigrants, blue states in the North are going to lose seats and red states in the South will gain them. Texas and Florida together are likely to gain 4-5 seats. Since Republicans control the trifectas in both states, they will make sure that all the new districts favor the GOP. There is nothing the Democrats can do about this. This alone would be enough to give the Republicans the majority in the House.

Third, turnout. Midterms have had lower turnout than presidential years for over a century. Here is a graph from Statistica showing presidential turnout in blue and midterm turnout in black since 1798.

In recent decades, Republican turnout has been higher than Democratic turnout in midterms because young voters and minority voters tend to skip the midterms. That said, suburban professionals tend to be among the most reliable midterm voters, and those folks are breaking for the Blue Team these days.

Another thing the Democrats might have going for them in 2022 is that elections (except possibly Senate elections) have become nationalized. Tip O'Neill was wrong. If Biden and the Democrats can really deliver and solve some of the crises, that could allow them to campaign on slogans like: "We beat the pandemic, righted the economy, rejoined the Paris Accords, and made a start on racial justice." That could override history. But they really have to deliver. Excuses like "We tried to be bipartisan but those nasty Republicans wouldn't let us" are not going to cut it. Voters want results, not alibis.

Jamelle Bouie has a column in the New York Times entitled "Democrats Should Act as if They Won the Election" that makes this point, only without the above data. It is also worth noting that when George W. Bush won in 2000 by winning Florida by 537 votes and a grand total of 271 electoral votes nationwide (only one more than needed), he didn't populate half his cabinet with Democrats or try to work across the aisle. With the narrowest of victories, including a loss in the popular vote, he simply rammed through his agenda. If the Democrats fritter away 2021 while the Republicans stall in the middle of four crises, the Democrats will get what they deserve in 2022.

The easiest path forward for the Democrats is to use the budget reconciliation process to repeal the 2017 tax cut (which would produce $2 trillion in revenue) and use the money to fully implement Biden's stimulus bill and a bit more. The effects would be felt in time for the 2022 election, and there is nothing like a roaring economy to help the president's party. Republicans would howl to the moon, but couldn't block this. Biden seems to understand this and has ordered his team to do a full-court press with Congress and the media.

Sen. Bernie Sanders (I-VT) said that the Senate should go directly to reconciliation and not waste time looking for 60 votes. But this isn't just Bernie-the-crowd-pleaser talking. It's Bernie-chairman-of-the-Senate-Budget-Committee talking. As such, he has the power to start the reconciliation process and he is planning to do precisely that, probably as early as next week. Sanders will now get the opportunity to show that he can legislate as well as give speeches.

In parallel, the Democrats could make a deal with Sens. Joe Manchin (D-Coal) and Kyrsten Sinema (D-Old White Retirees) that in return for "updating" (not abolishing) the filibuster (e.g., disallowing it on statehood bills or requiring actual filibusters, adult diapers and all), there would be goodies down the road for their states. But no matter how they do it, if the Democrats want to avoid another shellacking in 2022, they had better produce results. (V)

The Art of the Presidency

Each incoming president is free to decorate the Oval Office as he wishes. Usually that is done very carefully to send a signal to the media about what the president considers important. Donald Trump's choice in art included portraits of Andrew Jackson, a populist who followed six very establishment presidents from Virginia and the Northeast. As an added attraction, Jackson was a white supremacist and ruthless to minorities, especially in initiating the Trail of Tears, wherein tens of thousands of Native Americans were removed by force from their historic homelands in the South and exiled to the underpopulated West. It was not exactly deporting recent immigrants, since the Native Americans had been there for at least 15,000 years, but for Trump, it probably seemed similar.

So, who got Jackson's spot in the Oval Office? It is Benjamin Franklin.

Why Franklin? As every child knows, Franklin famously flew a kite with a key on it during a thunderstorm to learn whether lightning had something to do with electricity. In other words, among his many accomplishments, Franklin was a scientist. In addition, he was a strong supporter of vaccination to stop the smallpox epidemics that were then common. Gee, a scientist who pushed hard for vaccinations; hard to see why Ben Fauc...er, Franklin might be relevant today. To top it off, his approach to foreign policy was diplomacy, not buttering up dictators. Franklin's efforts were the main reason France recognized the newly formed United States during the Revolutionary War, thus greatly helping the young nation achieve independence. Wonder what Biden sees in all that? As an added bonus, Franklin was also a long-time Pennsylvanian.

Also, in case anyone missed the pro-science, pro-an-active-federal-government message, the President also had a moon rock put in the Oval Office. He's the second president to do so; Bill Clinton also had one in honor of the 30th anniversary of Apollo 11. It might also be a tip of the cap to Donald Trump, since Trump probably thinks half the moon gets no sunlight, and he spent half his term with his head stuck where the sun doesn't shine. Or maybe Biden picked a 3.9 billion-year-old object so there would be at least one thing in the Oval Office that is older than he is.

In addition to the Franklin painting, Biden has selected a large portrait of FDR to hang over the mantelpiece. Around it are smaller paintings of George Washington, Thomas Jefferson, Abraham Lincoln, and Alexander Hamilton. That means that Biden has given places of honor to two Franklins: Benjamin Franklin and Franklin Delano Roosevelt. So if the Trump administration might be characterized as "Jacksonian," the Biden administration might be characterized as "Franklinian." (V)

Biden Has Created a Commission to Study the Judiciary

During the campaign, Joe Biden punted on the question of whether to pack the Supreme Court. He said he would form a commission to study reform of the federal judiciary. He has now made good on that promise and created such a commission and is now staffing it up.

Early appointees are Cristina Rodriguez of the Yale Law School; Caroline Frederickson, the former president of the American Constitution Society (the progressive counterpart to the Federalist Society); and Jack Goldsmith of the Harvard Law School. The full commission will probably have between nine and 15 members.

Packing the Supreme Court is but one of many issues the commission will weigh in on. Another is whether judges should have lifetime appointments in an era where that can mean 40-50 years on the bench.

Packing the court would engender a massive amount of resistance from Republicans, but there is a possible alternate approach that might engender slightly less opposition because it is not a direct attempt to nullify Trump's appointments. Art. III Sec. 2 Clause 2 of the Constitution reads:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make (our italics).

Note that the Constitution specifically grants Congress the power to limit the appellate jurisdiction of the Supreme Court. This means Congress has the power to create a seven-judge Constitutional Court, inferior to the Supreme Court but superior to all the appellate courts and whose only authority is to handle constitutional cases. The law creating such a court would strip the Supreme Court of jurisdiction over constitutional cases. It would continue to have appellate jurisdiction over other cases. Since the Constitutional Court does not currently exist, Joe Biden would get to name all seven judges, subject to confirmation by the Senate. This would de facto nullify the three Trump appointments to the Supreme Court without packing it. Biden has said that he is no fan of packing the Court. Going this route would solve the Democrats' problem without forcing him to reverse course on that position. An additional argument in favor of this approach would be that so many cases come up from the appellate courts that this would effectively double the judiciary's capacity to handle them. (V)

Tens of Thousands of Voters Have Ceased to Be Republicans

More than 30,000 voters who had been registered as Republicans have changed their party registration since the Capitol riot. The real number is certainly much larger because only a handful of states report on changes in partisanship on a weekly basis, while others don't actually register people by party, meaning there will be no evidence of a "change of heart" in those places until the next election. Anyhow, many of the reported changes are in key swing states.

In Pennsylvania, for example, 10,000 voters have left the Republican Party so far in January 2021. Almost 3,500 became Democrats. The rest registered as independents or with another party. In contrast, only about 3,000 people left the Democratic Party in January.

In Arizona, 5,000 people are no longer Republicans. In North Carolina, the GOP lost 6,000 voters. The number of Republican defectors in Colorado is 4,500. In Maryland it is 2,300. In all those states, the number of Democratic drop-outs is a small fraction of the former Republicans.

Normally, large numbers of changes in partisanship occur only before primary elections, when people want to vote in some other party's primary. But there are no primaries in any of these states in 2021, so something else is going on. Prof. Michael McDonald of the University of Florida, who had his 15 minutes of fame tracking the early voting last October, said that the switchers are likely to be high-information voters who follow politics closely and know how to change their registration. Anyone who changes their party registration over a year before any primary is almost certain to vote when the time comes.

Some of the data suggest that the changes are happening in precisely the suburban counties where Donald Trump alienated the upscale voters. Changing one's registration doesn't sound like "I like Republicans except for Trump." It sounds much more like "I have had it with the entire Republican Party." The number of voters who have changed their registrations is a small fraction of all the voters, but it could be just the tip of the iceberg. (V)

Federal Judges Are Starting to Retire

Some federal judges have wanted to retire or take senior status for a while, but didn't want to do so while Donald Trump was president and would nominate their successors. Now that he can't, they are starting to call it quits. The first to go was U.S. District Judge Victoria Roberts, who waited only 90 minutes after Joe Biden was sworn in to announce her plan to take senior status (a kind of semiretirement that allows Biden to name a replacement). Since Wednesday a week ago, five federal judges have (semi-)retired, giving Biden the opportunity to name their successors. Many other judges appointed by Jimmy Carter, Bill Clinton, and Barack Obama are expected to follow. But George H.W. Bush and George W. Bush appointees may also retire simply because they feel they are too old to do the job now, and perhaps because they suspect there won't be another Republican in the Oval Office anytime soon.

Biden is reviving an old practice. He is asking Democratic senators to provide him with names of possible judges from their states. The idea here is that the senators have a better idea than Biden of who might be a good candidate by talking to local people, including state judges, deans of local law schools, and the head of the local Bar Association.

Most of Donald Trump's judicial appointees were white male right-wing ideologues he found by picking up the phone and calling the Federalist Society. Biden is expected to appoint a more diverse set of judges. He promised to appoint a Black woman to the Supreme Court at his first opportunity. The smart money is betting that if Justice Stephen Breyer retires, Biden will pick Breyer's former clerk, district judge Ketanji Brown Jackson of the D.C. circuit. (V)

North Carolina Senate Race Heats Up

One of the biggest Senate battles in 2022 will be for the seat that Sen. Richard Burr (R-NC) is vacating. Donald Trump carried the state by only 1.4 points in 2020. Sen. Thom Tillis (R-NC) beat Cal Cunningham by 1.8 points, and part of that was probably due to Cunningham's zipper getting stuck in the open position. There will be multicandidate primaries in both parties in such a close state.

One candidate who has already jumped in is state Sen. Jeff Jackson (D-Charlotte). He is in his fourth term in the state Senate. Before getting into politics he was a county prosecutor, captain in the U.S. Army Reserve, and an Afghanistan War veteran. He plans to do the full Grassley and then some, visiting all of North Carolina's 100 counties during his campaign. Iowa is easier; it has only 99 counties.

Jackson originally wanted to run in 2020, but now-Majority Leader Chuck Schumer talked him out of it to clear the field for Cunningham. In a leaked recording, Jackson said that when he told Schumer he wanted to hold rallies in 100 counties, Schumer told him that was the wrong approach. Instead he was told to spend 16 months in a windowless basement room raising money.

Jackson isn't the only announced Democrat. Former state Sen. Erica Smith, who is an outspoken progressive, is also running again. She lost the primary to Cunningham in 2020.

On the Republican side, former White House Chief of Staff Mark Meadows, who used to represent North Carolina in the House, said he is not running. However, Lara Trump, the wife of Eric Trump, has been considering a run. She is a native of the Tarheel State. A run by her would be a test of how infectious Trumpism is. Does it work only for Trump himself, or also for relatives? That is something Don Jr. and Ivanka are quite curious about. (V)

Senate Republicans Worry about More Retirements

The abrupt announcement that Sen. Rob Portman (R-OH) won't run for reelection hit Senate Republicans like a bolt out of the blue. No one saw it coming. Now Senate Republicans are all thinking: Who's next?

So far, Sens. Portman, Richard Burr (R-NC), and Pat Toomey (R-PA) are definitely not running in 2022. All eyes are on Sen. Chuck Grassley (R-IA), who would be 95 at the end of his term if he runs again in 2022 and wins. Even in Senate years that is getting to be a bit long in the tooth. Many people expect him to call it quits after this term. Iowa has become redder than it was in the past, but part of that could be the Trump effect and might not guarantee a Republican win for an open seat with Trump not on the ballot.

Another potential open seat is that of Sen. Ron Johnson (R-WI). When he initially ran, he said he would serve two terms. Did he really mean it? He could change his mind. Johnson recently said: "I'm not a fan of this place. I think this place is horribly dysfunctional." That doesn't sound like a happy senator. Wisconsin is definitely a swing state and Democrats would have at least a 50-50 shot at an open seat there, though less if Johnson decides to run again.

Another potential retiree is Sen. Richard Shelby (R-AL), who would be 94 at the end of another term. However, unlike Iowa, where an open seat would be very competitive, if Shelby decides to call it quits, the only race that would be competitive would be the GOP primary, in which multiple football coaches would probably bang heads. Whichever was the Trumpiest would be the new senator.

One other senator about whom there are rumors of retirement is Roy Blunt (R-MO). There is no particular reason to speculate about him—except that he has been coy about saying he plans to run for reelection. Normally senators say that very early on in the cycle and Blunt has been mum.

On the Democratic side, no retirements are likely, outside of a possible early retirement from Dianne Feinstein (CA), who would surely be replaced by another Democrat in the special election that would trigger. Here is the 2022 Senate map. (V)

Scott Will Back Rubio for Reelection

Sen. Rick Scott (R-FL), who is chair of the NRSC, said that he plans to back Sen. Marco Rubio (R-FL) in 2022. This is just "Dog bites man," right? After all, it is hardly unusual for one Florida Republican to help the other one gain reelection, especially when the backer is in charge of a large pot of money.

The only reason we even mention this is that there is a lot of speculation that Ivanka Trump, who has moved to Florida, is thinking about challenging Rubio in the GOP primary in 2022. If she is planning to get into politics, only three offices are high enough to be worthy of her attention: governor of Florida, senator from Florida, and president. In 2022, she could run for either governor or senator, since both Gov. Ron DeSantis (R-FL) and Rubio are up for reelection. Running for governor would be a steeper hill because running a big state isn't easy and she's never run anything other than her personal company. DeSantis would say: "She's a nice lady, but she doesn't know how to run a very diverse state with 21 million people." Also, Florida requires 7 years of residency to run for that office, and "I stayed at Mar-a-Lago on occasion" probably won't get it done. In contrast, backbenchers in the Senate can just sit on their...bench and keep their mouths shut for the first 20 years. She might qualify for that.

Waiting for 2024 to run for president has two problems for Ivanka. First, Dad says he is running and she certainly can't make any moves until he says he is not running. Second, if she is unqualified to be governor of Florida, she is utterly unqualified for the office of president. And in 2024, she won't be able to play the "woman card" if Nikki Haley runs, as expected. Haley has executive experience as governor of South Carolina and foreign policy experience as ambassador to the United Nations. "I'm a Trump" probably wouldn't get her through the GOP primary because she doesn't diss women, minorities, immigrants, and the disabled, as Dad does. So the Senate is by far the easiest target for her. Rubio is no doubt scared witless, but if Scott really means it when he says he would back Rubio in a battle with Trump, that might be enough to scare the former First Daughter off. (V)

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