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trumping trump

These past four years have posed the most serious challenge to American Democracy since the Civil War. Donald Trump gained the presidency with substantial (albeit minority) popular support, and has used that support to sap the foundations of our constitutional order.

Now with scarcely more than a week until the election, it seems exceedingly unlikely that Trump can win this election, either with a popular majority or the Electoral College. If he does miraculously pull it out, we would not easily recover. It would fall to those of us who can, to oppose a consolidating tyranny, but it would be an uneven battle.

Fortunately, that grim scenario is the least likely. A second possible outcome is not so bad but scarcely good: a narrow Biden victory but without retaking the Senate. A Republican-controlled Senate can be counted on to block Biden’s legislative initiatives, judicial nominations, and even perhaps his cabinet appointments. Money for new projects would be hard to come by.

By abolishing the Senate filibuster, the Democrats could confirm judicial and cabinet appointments, create new judicial seats to be filled at the district and appellate levels, and pass legislation without obstruction. 

Biden would be in the position of Obama in his last six years, and Trump in his last two: he would control the executive branch, he could issue executive orders to roll back Trump’s orders that in their turn rolled back Obama’s orders. But he couldn’t do anything that a succeeding president couldn’t undo with the stroke of a pen.

This amounts to shifting the course of a country that Trump has steered toward the rocks. That would be significant, but not sufficient, when put up against challenges like climate change and the coronavirus pandemic. And Trump and his base would still be out there making trouble.

The third scenario is both the most likely and the best: Biden wins a substantial victory in both popular vote and electoral vote, and carries control of the Senate while holding the House. He and his party would then be positioned to enact legislation to undo the hundreds of harmful Trump executive orders and policies, and to set new courses on climate change, health care, voting rights, immigration and other areas in ways that couldn’t be so easily undone by the next president.

By abolishing the Senate filibuster, the Democrats could confirm judicial and cabinet appointments, create new judicial seats to be filled at the district and appellate levels, and pass legislation without obstruction. 

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If the newly enhanced conservative majority on the Supreme Court proves rigidly partisan in blocking Biden’s initiatives, the Democratic leadership could move ahead with shifting the balance on the Court by adding new seats. But that shouldn’t be the first move. Steven Pearlstein has recently suggested that hearings could be held on expanding the court, and a bill to do that could be reported favorably and held by the Speaker as a cudgel against excessive conservative judicial activism.

Two features of the Constitution systematically favor the smaller states (which at present are largely Republican) as against the larger (and largely Democratic) states: the Senate and the Electoral College. Changing either would require a constitutional amendment, and that will probably be beyond reach. Indeed, the Constitution itself, in Article 5, stipulates that no amendment may deprive any state of its equal representation in the Senate, without its consent. So the Senate is off the table, barring the writing of an entirely new constitution. But legislation could decisively mitigate the worst evils of the Electoral College, either by stipulating that each state’s electoral votes be allocated proportionate to the popular vote, or by stipulating that all electoral votes be cast for the winner of the national popular vote.

Thus could we seize the opportunity to move the country decisively in a progressive direction, for the first time since Lyndon Johnson’s magical year of 1965. Half a century of relentless conservative pushing to roll back the New Deal and the Great Society will have finally reached its high water mark and begun to recede.

But obstacles: there will be obstacles. The Supreme Court will top the list, but as noted, if the conservative majority are recalcitrant, the Court could be expanded. 

If Trump loses badly, he will probably not be as potent in rallying his base. Even though Trump might be liable to prosecution on various charges, Biden would be wise to avoid setting the precedent of prosecuting one’s predecessor. Trump talked constantly about that, but he didn’t actually do it. Indeed, he might opt for exile as a defense against possible prosecutions.

But the base will still be out there, as hostile as ever to what Biden and the Democrats stand for, and hostile as well to any attempt by traditional Republicans to recapture the Republican Party. That party, indeed, will be in for a long civil war. We could end up with two rightist parties, a white-nationalist, quasi fascist party, and a Conservative party something like the European Christian Democrats. Such a split would obviously cut to the advantage of the Democrats.

If Biden and the Democrats play this opportunity well, producing tangible benefits for many people and doing it quickly, there is the potential to lay the foundation for a new progressive era, carrying well beyond 2024.

impeachment unavoidable

If they fumble the ball, then like Clinton, Obama and Trump, they could lose control of Congress in 2022, after just two years in power.

John Peeler