So, What’s Going on With Clarence Thomas These Days?

Next week marks the last week of oral arguments in this Supreme Court term, leaving little more than a sprint through the remaining decisions left unsettled. As of this writing, some heady matters remain unresolved. The ruling on the abortion pill has yet to be decided; there is a consequential gun rights case on the docket; and as always, the fate of the administrative state hangs in the balance. For many ordinary people, it will be another white-knuckle stretch, as they hope for narrow rulings that might limit the potentially life-altering—and precedent-shattering—damage.

For Democrats, the 6–3 split on the high court is a generational problem. At least, that’s how it’s often framed. In a recent post, my colleague Matt Ford stated the matter pretty starkly: “By some estimates, liberals may not have a chance to appoint a majority of Supreme Court justices until the 2050s. If Barrett stays on the court until she is the same age as Ginsburg, she will serve until at least 2059.” To think about this dilemma in these terms is to resign oneself to the idea that the solution won’t be arriving for several decades. But a lot can happen between now and 2059, and perhaps even sooner, because of another immutable law that holds that “shit happens.”

With that in mind, has anyone noticed that something seems to be up with Justice Clarence Thomas lately?

This past Monday, it was reported that Thomas was absent from the court and not participating remotely in the oral arguments of the day, with Chief Justice John Roberts assuring everyone that Thomas would get the full range of “briefs and transcripts” after the fact, ensuring that he’d be able to participate in the cases. Thomas doesn’t miss many days of work, and unlike a previous instance two years ago in which he missed a number of sessions during a hospital stay, no reason for his most recent absence was offered.

Into this blank space in the story, allow me to remind everyone that Thomas, 75, is the oldest of the justices, the longest-serving member of the court, and while I don’t doubt that Harlan Crow’s Garden of Dictators may be the venue for eldritch incantations of all varieties, there is no reason to believe that Thomas is immortal. In other words, he is still subject to the vagaries of the Universal Law of Shit Happening. (Fun fact: Samuel Alito is only a year younger than Thomas.)

It’s really no one’s fault that the comings and goings of sitting Supreme Court justices can be such a macabre business. Given the opportunity to amend the Founders’ work, I imagine that ending the whole “lifetime appointments for wizened, unaccountable elders in robes with the final say over American life” arrangement would be near the top of the list of improvements. But Democrats are probably too physiologically incapable of stating the potential stakes of the upcoming election to their voters in terms as stark as “Clarence Thomas might not be long for the bench; send Biden back to stem the tide of far-right jurisprudence.”

It’s not as if taking the high road hasn’t led anywhere: As The New Republic contributor Simon Lazarus has pointed out several times, a combination of consistent pressure and high-minded critique from liberals has, over the course of the past few terms, seemed to play a role in the justices taking a more tempered approach to their rulings. This strategy may yet bear more fruit this term, and forestall the kinds of extreme rulings that the conservative bloc’s two elder statesmen might hope to wrangle.

Still it’s weird to watch how some on the left are raising the salience of the justices’ mortality: by urging Democrats to bring Justice Sonia Sotomayor’s career to a premature end, the better to install a younger jurist now while Biden is still president. In that aforementioned article, Ford took a dim view of this way of thinking and suggested instead that Democrats might be better off simply winning elections. Regardless, this is a debate worth moving on from. It’s silly for Democrats to be divided in an election year over anything, let alone Sotomayor’s career, and anyway, no one’s run this plan to pull a late-in-the-day switcheroo past Senators Joe Manchin and Kyrsten Sinema, whose permission is still required for such stunts.

Nevertheless, there is definitely a ruthlessness gap between the parties in this regard. Republicans have had enormous success in dispensing with the polite traditions that govern the high court’s promotions and relegations. That the GOP went to elaborate lengths to prevent Obama from appointing Merrick Garland to the bench was, during that ongoing folderol, evidence of how far they were willing to go to consolidate power. But it is also a reminder that there was once a time when the makeup of the Supreme Court wasn’t in their favor and they were staring down the tunnel of the same kind of generational problem that Democrats now face.

But the right has benefited from the happenstances of the Shit Happens Law, as well. The misfortuned timing of Ruth Bader Ginsburg’s death created the opportunity for the 6–3 split and provided the catalyst for the Democrats’ recent agita over Sotomayor. Still, the lessons of the recent past—combined with all this recent talk of court-vacancy gamesmanship—illuminates a simple idea that Democrats should perhaps find the courage to speak aloud, regardless of the grisly implications: Elections matter, because you never know when the chance to appoint a new justice might arise. There is a clear mission at hand: Don’t let any of the court’s elder conservatives have the opportunity to make their escape through the safe harbor of a Trump presidency.

For as long as they have existed, No Labels have wanted one thing: to matter. But these self-styled centrist “problem solvers,” who’ve yet to advance anything resembling a political solution, have always faced substantial obstacles, mainly that they’re a venal gaggle of cosseted Beltway elites with no real constituency in the broader public. That they’ve been allowed to persist with their cotton-headed paeans to bipartisanship is a testament to structural problems with our political system (which is awash in money and enables too many people who care about nothing but maintaining power to come to Washington) and the commentariat (which is packed to the brim with thunderously credulous dolts).

But after more than a decade cashing checks from the biggest fools in the donor class (and some of the biggest assholes as well), No Labels’ demise finally appears imminent. The Wall Street Journal reported on Thursday that the group has abandoned its plan to field an independent third-party presidential ticket on account of the fact that no actual candidate wanted to have anything to do with the effort. That means the fear that the group might play spoiler and hand the White House to Donald Trump—which it seemed to want—is over. In a statement, No Labels founder Nancy Jacobson said the organization “would remain engaged in promoting unity and giving voice to America’s commonsense majority.” Here’s a thought: Quit instead.

This has been a stupendously silly journey. A month ago, after prevaricating for the better part of a year, No Labels announced that they were moving “forward with the process of forming a presidential ticket to run in the 2024 election,” which everyone thought they had already been doing all this time. And yet, it made headlines. Give these terminally inside-the-Beltway toffs some credit: You can’t become a Washington lifer without mastering the art of making news out of nothing at all. If you can successfully pass activity off as achievement in This Town, more often than not the gravy train will keep on running.

But behind the scenes, matters were considerably more grim. In leaked audio that TNR’s Greg Sargent obtained, it became clear that the organization had “no idea whether it will be able to move forward” with its electoral ambitions. “No serious candidates appear interested,” Sargent reported at the time, “and there’s no sign that this is changing.” A month on, matters had not improved. In mid-March, Geoff Duncan became the latest in a long list of candidates—including GOP primary also-ran Nikki Haley, West Virginia filibuster fanboy Joe Manchin, and former Maryland Governor Larry Hogan—to decline to be the organization’s sacrificial lamb, ending any or all opportunities to finally answer the question: “Who is Geoff Duncan?” (He is apparently the former lieutenant governor of Georgia, but I invite you to double-check.)

Meanwhile, the group was considerably hampered by the recent death of founding chairman Joe Lieberman, whose stalwart defense of the organization was fully in keeping with the former Connecticut senator’s quarter-century-long conniption fit. As the Associated Press reported, Lieberman’s passing “not only mark[ed] an irreplaceable loss for No Labels, it inject[ed] a new level of uncertainty into the organization’s 2024 ambitions.” According to the AP, Mitt Romney, Chris Christie, and Brian Kemp had also turned down the chance to be the organization’s presidential candidate. So many people have rejected this group’s advances that I honestly have a hard time keeping track. (Did you turn down the chance to be the No Labels presidential candidate? Let me know!)

In an effort to prove that there is no way of taking No Labels seriously, Politico’s Alexander Burns offered some last-ditch the tongue-in-cheek advice that the organization should enlist some entertainer or outside-the-Beltway “provocateur” to be its standard-bearer instead of the “bloodless and gray” career dweebs it’s approached. As former Jesse Ventura strategist Bill Hillsman told Burns, No Labels’ efforts were “misconstrued from the beginning,” arguing that “few voters” would be inclined to see “a unity ticket forged from within the political establishment as an answer for their grievances with the system.”

I can’t stress enough that an organization led by Lieberman and Beltway donor doyenne Jacobson is physiologically incapable of imagining an outsider in its ranks. Perhaps that’s why a former Bush administration official recommended in a Hill op-ed that the group go ahead and put Lieberman on the ticket, even though he’s dead. (Come to think of it, a Weekend at Bernie’s presidency would be preferable to a second Trump term.)

At any rate, I have a better idea: No Labels should fold. This organization has a sad and decrepit legacy of timidity and corruption, and as Meredith Shiner reported in 2014, it isn’t even sincere in its core beliefs: Internal documents revealed that its leadership was “banking on more political dysfunction in an attempt to find ‘opportunity’ and relevance for itself.” And let’s face it: The day the organization handed Trump its “problem solver” endorsement during the 2016 presidential primaries should have marked the end of taking it seriously.

Alas, two presidential cycles later, these lowlifes’ grift persists. But now that their “unity ticket” plan to doom the republic has come to naught, all of the people who’ve hitherto been fleeced by them, financially or ideologically, should wise up and pull the plug. The rest of us can only be grateful that No Labels’ last hurrah—much like all of their grand designs—foundered without bringing ruin to us all. Still, it’s a searing indictment of the United States that people with such bad ideas can ascend to such great heights that they could help trigger our democracy’s demise.

This article was adapted from Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

Last August, TNR’s Matt Ford took a look a year ahead, saw that former President Donald Trump would be competing in a Republican primary while serving as a semiprofessional defendant in no less than four trials, and declared that it was destined to “get pretty weird along the way.” A healthy dose of weirdness has, truly, been delivered. Trump now owes something in the vicinity of $500 million in legal fines, bringing us closer to the answer of an age-old question: “Does Donald Trump have $500 million?” The certainty of this burden, and the evident frustrations of the former president as he seeks out a sucker to take his bond, have stuck him in the teeth of a pay-up-or-shut-up deadline, one that may well unmoor him. I don’t think Trump minds being thought of as corrupt even one bit—but he hates being thought of as broke.

But to liberals’ considerable consternation, Trump is in a strong position both electorally and legally. While he owes E. Jean Carroll and the state of New York some mountains of money, he’s catching a lot of breaks elsewhere in the legal system, notably in the form of procedural delays that threaten to push his various criminal trials much later in the year and potentially past Election Day. For those who have been eyeing polls suggesting that President Joe Biden would benefit if Trump caught a conviction, each delay has been greeted as a damaging wound to Democrats’ hopes. But there may be an upside: Democrats will stop waiting for someone else to save them.

The Trump era revealed a certain myopia among Democratic elites, who reacted to Trump’s election as if it were an aberration, a foreign object injected into the bloodstream of the body politic—one that our democracy’s immune system would surely recognize and destroy quickly. And so liberals yassified Robert Mueller without regard for how difficult the task of convicting a sitting president of crimes truly was. They threw their back into impeachment proceedings without regard for the fact that Republican senators do, in fact, exist. Now, I fear, too many have put their hopes on Jack Smith—the dark, gritty Robert Mueller reboot who will finally finish the job. 

But with the Supreme Court’s decision to take up Trump’s presidential immunity case—and back-burnering it until April—it’s an open question as to when Smith will even get started on his January 6 insurrection case. Most observers believe there is no way to wrap things up by November. So be it. There is no deus ex machina coming to save Democrats, no miracle cure for Trump. But rather than lapse into another long sorrow session, Democrats should be glad to be unburdened of the colossal expectations that the judicial system would save them, and get up off the fainting couch to mount the nimble and powerful campaign that our democracy deserves. 

It begins with an attitude adjustment: Instead of being despondent that Trump can’t be convicted by Election Day, be damned glad that he won’t be acquitted before America casts its votes. Because Trump getting off scot-free was always a possible outcome. What was the plan, exactly, if those hoped-for judicial punishments ended up being a series of exonerations for Trump to crow about?

The good news is that Democrats don’t actually need courts to hand down a bunch of verdicts to make hay out of Trump’s legal woes. Everything that Trump is standing trial for remains a live issue, and in the absence of breaking news stories about the latest courtroom blowup or legal setback, Democrats have a free hand to feed the media beast with derogatory information related to these trials (the insurrection, the attempted Georgia election coup, his rampant fraud, the stolen documents), as well as other scandals (the foreign money he’s pocketed, his role in Roe’s demise, his plans to transform the civil service into an instrument of personal retribution). 

As Brian Beutler notes in a recent edition of Off Message, there are plenty of creative ways “for Democrats to draw attention to Trump’s corruption even if he’s able to delay official legal proceedings.” They just need to break with some old habits:

Democrats put serene faith in the power of paid advertising to convey information like this, so much so that they devote almost no strategic thought into generating free media around these disqualifying liabilities. Meanwhile, everything Trump’s doing can be viewed as an effort to dodge the free-media penalty of being a criminal, a rapist, and a fraud. 

Democrats really can’t afford to lapse into thinking that the media, the scales finally loosed from its eyes, will eventually notice the merits of their case and come out in support of it. They have to recognize that the political press prefers to be met on the proverbial low road, and get over the crass implications of participating in a politics that’s less high-minded.  

Into the vacant space left by delayed trial proceedings, Democrats need to tell the story of how Trump came to be so entangled in the first place, reminding people that this man paid hush money to an adult film star with whom he was having an affair, illegally took classified documents and stored them at Mar-a-Lago as if they were spare toilet paper (then lied about it and obstructed justice), also lied about his net worth to defraud others of countless millions, led a “criminal racketeering enterprise” to overturn the 2020 election result in Georgia, and of course directed a mob of thousands to attack the Capitol. 

And above all, they must remind voters that Trump is seeking the presidency precisely because he wants to dodge responsibility for all of these crimes. This is the bumper sticker: Joe Biden is running for office; Donald Trump is running from the law.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

Our little experiment in multiracial democracy rarely leaves an encounter with the Supreme Court unscathed, but Monday’s 9–0 decision in Trump v. Anderson—in which the justices ruled that Colorado could not keep Donald Trump off the ballot—has left a deeper wound than most. As The New Republic’s Matt Ford explained soon after the unanimous, unsigned per curiam decision was handed down, the ruling is an absolute cock-up that willfully misinterpreted the plain text of the Fourteenth Amendment, seemed to misunderstand how either the Constitution or most elections in the United States work, took up questions that hadn’t been brought before the court in the first place, and found terrible ways to answer them.

The American people began the day armed with a constitutional fail-safe that provided them with the means of keeping an insurrectionist off the ballot. By noon, the court had ruled that they weren’t entitled to that tool, that it would be up to the voters themselves to decide whether an insurrectionist can hold higher office, and that their decision was subject to review and reversal in the form of a subsequent insurrection. Seems like a bad way to run a country.

As far as the legal matters in play are concerned, the ruling is, for the lack of a more polite descriptor, hot garbage—a sentiment, as Ford documented, shared by many people, including those who actually believed Trump should remain on the ballot. But outside of the jurisprudential hash left steaming on the courthouse steps, there is a rather savage truth sitting there, sub rosa, in the decision: It seems the Roberts court unanimously agrees that the Republican Party is truly, and despicably, lawless.

“How could the court butcher the ruling so badly?” asked Ford. “The simplest answer appears to be fear.” Fear was especially apparent in Justice Amy Coney Barrett’s admonition of the liberal trio’s fiery concurrence. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she wrote. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” It’s a bit rich coming from one of the justices whose rulings, most notably on the abortion rights front, have done a great deal to elevate that “national temperature,” and sow considerable chaos along the way.

But as New Republic contributor Jess Coleman quipped, “Things definitely tend to get messy when a political party unequivocally chooses an insurrectionist as its nominee.” It’s on this precise front that the court curiously avoided taking an obvious escape hatch: disputing that Trump had, in fact, aided an insurrection. Trump’s legal team provided that off-ramp, arguing that the former president was innocent of such treachery. Still, as Ford told me, most of the constitutional arguments that Trump’s lawyers advanced in his defense “only apply if, all other things being equal, he did participate in an insurrection.” That the Supreme Court chose to try to resolve the matter along constitutional lines suggests an admission: They believe Trump to have done the very thing that the Fourteenth Amendment forbids. From there, their mission became to backfill a rationale in support of the notion that Colorado’s remedy would cause too much pandemonium if it were to be administered.

But as they put themselves to this task, the court continued to quietly snitch out the GOP for their misrule. At one point, the court warns in its unsigned opinion of an “evolving electoral map” that could “dramatically change the behavior of voters, parties, and states across the country, in different ways and at different times,” potentially leading to the nullification of the people’s will. Here, Ford said, the court was “essentially caving to threats”—chief among them the ones raised in amicus briefs from a “coalition of Republican-led states” that darkly hinted at the possibility that “some states might exclude other presidential candidates from the ballot if Trump were disqualified.”

Naturally, it’s hard to see why anyone should fear a Republican secretary of state citing the Fourteenth Amendment in an effort to remove a Democratic candidate who had participated in an insurrection. I daresay that I am 100 percent in favor of such Democrats being barred from higher office. Here, however, the justices seem to be implying that the GOP will have reckless disregard for the law, and kick off candidates who cannot be said to have contributed to the sort of crimes that the Fourteenth Amendment inveighs against.

Indeed, we can foreclose the possibility of Democrats abusing their power in this fashion. For starters, at least one Republican secretary of state, Jay Ashcroft, had already issued such a threat, the cited reason simply being that he was upset that Colorado and Maine had moved to keep Trump off the ballot. Meanwhile, there is no such behavior among Democrats: Nikki Haley, a more fearsome opponent for President Joe Biden, was left on the ballot, untroubled by Democratic secretaries of state that might have wanted to help the Democratic candidate. (Also, it wasn’t Democrats who sent amicus briefs to the court written in the spirit of “Nice democracy you’ve got here, be a shame if anything happened to it.”)

It’s understandable that the Supreme Court would be worried about a Republican Party that doubles as a criminal cartel, because we’ve seen how, in the Trump era, they have descended into that lowly state, with one of their chief exports being the fomenting of political violence. This fact happened to be on the mind of Colorado Secretary of State Jenna Griswold as she wrestled with whether or not to invoke the Fourteenth Amendment in the first place: After the Supreme Court ruling was handed down, Griswold gave an interview on cable news where she lamented how the insurrection to which she was trying to respond hasn’t actually ended, as threats to her state election officials keep pouring in.

“We have had 38 percent of our county clerks step down since 2020,” Griswold said. “We can’t allow people who would use intimidation or threats to win that battle.” From the Supreme Court came the reply: If you don’t allow those people to win, the Republican Party might very well hurt you next.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

On May 3, 2022, Maine Senator Susan Collins greeted news of the leaked draft of the Dobbs decision with her trademark rue: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meeting in my office.” When asked for more details, Collins demurred, offering only that her statement “speaks for itself.”

What Collins said may have been literally true, in that Neil Gorsuch and Brett Kavanaugh—like all Supreme Court nominees for decades now—didn’t explicitly show their hands on major, divisive legal questions during their hearings and congressional rounds. But it was also a breathtaking dodge by Collins, one that laid bare either her profound ignorance or her mendacity—and it’s worth recalling today because Collins and her ilk are once again being put on the spot over reproductive rights, this time with in vitro fertilization.

Justices Gorsuch and Kavanaugh, as everyone in Washington (including, surely, Collins) knew at the time of their respective nominations, were practically lab-grown to ascend to the Supreme Court to overturn Roe. That’s precisely why their names were provided to President Donald Trump by the conservative legal movement. Beyond that, Kavanaugh actually did make clear his intentions toward Roe—at least, to legal minds who were paying attention. He told Senator Ted Cruz that when it comes to rights that are unenumerated in the Constitution but considered implicit in the text, “all roads lead to the Glucksberg test.” He was referring to Washington v. Glucksberg, in which Chief Justice William Rehnquist held that such unenumerated rights need to be “deeply rooted in this Nation’s history and tradition” to be considered valid.

In Glucksberg, the specific right being challenged was the right to a physician-assisted suicide. The abortion rights wrought by Roe fall into the same category. So while Kavanaugh may have been speaking in judicial code, it wasn’t that hard to penetrate. “It doesn’t take the brains of a fourth-term United States senator from Maine to figure out what this means if Kavanaugh is confirmed,” ThinkProgress’s Ian Millhiser explained at the time. “Judge Kavanaugh will be the fifth vote to kill Roe if he joins the nation’s highest Court.” As Millhiser predicted, the “Glucksberg test” was applied in precisely this fashion in the Dobbs decision.

Why rehash this history? Mainly because Collins’s prevarication two years ago is how Republicans are going to try to run the post-Dobbs gauntlet in this election year, in an attempt to evade responsibility for the terrors they have unleashed and those they have planned for the future. They will lie, and they will play dumb.

The contours of this strategy blew into wide view after the Alabama Supreme Court ruled that frozen embryos are people, throwing the future of in vitro fertilization, or IVF, in the Yellowhammer State and beyond, into doubt. Republicans in Congress rushed out statements in support of IVF, but as The New Republic’s Ellie Quinlan Houghtaling documented, their sudden interest in preserving IVF was dramatically at odds with their support for the Life at Conception Act, which “hoped to recognize fertilized eggs as children at the federal level in an attempt to ban abortions nationwide”—a measure co-sponsored by 163 Republicans in the House.

Indeed, the Alabama ruling was nothing more than a plain reading of similar laws in state law and its constitution, which enshrines fetal personhood in a similar matter. All of these various laws and legislation are the product of the same 50-year project that took down Roe, and which is straightforwardly geared toward a nationwide abortion ban.

But the contretemps raised by the ruling has amplified a schism between Republican elites who hope to choreograph a piecemeal rollback of these and other rights, and far-right firebrands outside of Washington who want to bring about this future as instantaneously as possible. As I’ve written before, this tension has led some institutional Republicans to try to “rebrand” the pro-life movement as moderate—rather than hell-bent on banning all abortions.

This “rebranding” will, in this campaign year, essentially amount to dodging and weaving. You’re going to see various GOP elites proclaiming support for exceptions and limits, but there won’t be a valid commitment to advancing any such protections. Indeed, South Carolina Republican Nancy Mace spent the week shopping for co-sponsors for a resolution that purports to support IVF, but which, as Business Insider reporter Brian Metzger notes, “doesn’t actually do anything.”* (My colleague Adrienne Varkiani greeted this news like so: “A resolution that does nothing is peak Nancy Mace.”)

But what happens in Washington matters less than what happens in the states, where, The New Republic’s Greg Sargent says, “the true implications of GOP positions on reproductive rights will be harder to evade.” After all, it’s the states where the radicals hold levers of power, and their attempts to reassure voters that they’re not actually radical is proving even more ham-handed than Beltway Republicans’: This week, Alabama Republicans put forward a bill purportedly protecting IVF, which automatically repeals itself in 2025. In other words, it secures these rights only until the election is over, after which state lawmakers can get back down to the job of taking them away again.

This election year, Republicans will lie endlessly about their abortion positions. That much is certain. The question is whether political reporters will launder Republicans’ extreme positions by accepting at face value the benign, moderate things they say about reproductive freedoms—without adding the all-important context that the GOP is part of a half-century movement dedicated to a wholesale rollback of all abortion rights. That’s how you get an Associated Press story characterizing Donald Trump as some sort of champion for IVF when, given his Supreme Court picks, he’s played the biggest role of any politician in advancing the notion that frozen embryos are people. These GOP lies should be easy to decipher and expose, but as Susan Collins knows, they tend to work like a charm.

* This article originally misidentified Mace’s state.

On a debate stage in 2019, former Department of Housing and Urban Development Secretary Julián Castro went there: suggesting that fellow presidential contender Joe Biden, who was 76 years old at the time, suffered from memory issues. “Are you forgetting what you said two minutes ago?” Castro needled. “Are you forgetting already what you said just two minutes ago?” Democratic elites were quick to swoop, lambasting Castro for his incivility. “That was a disqualifier, the way he handled it,” Rahm Emanuel said in the ABC spin room shortly afterward.

During that election cycle, Democrats seemed bent on eating their young; all but Pete Buttigieg were ground up in the gears even as the party changed its debate rules to allow Republican dowager Michael Bloomberg to briefly live out his youthful fantasy of running for president. By party acclimation, the septuagenarian Biden was anointed champion after the South Carolina primary. All thoughts of his age were set aside—until this year, when those same party elites were blindsided by the fact that time only moves forward. Biden had in fact gotten quite old. Then they were rocked anew by the Hur Report, which made Castro look prescient.

So now, the hot new thing in the imaginations of the political commentariat is replacing Biden atop the ticket. I’ve long taken a dim view of this prospect, but I want to leave my feelings aside to provide proponents of this idea with something that was sorely lacking during the 2020 primary: foresight. If you’re contemplating moving on from Biden, here’s what you need to know: It will be a brutal road to Election Day, marked by gallons of intraparty bad blood and media coverage so unfavorable to Democratic interests that it will blow your mind.

This fundamental truth is getting glossed over by the likes of Ezra Klein, whose recent audio manifesto in The New York Times promises that Democrats “have a better option than Biden.” It takes several thousand words of throat-clearing, but eventually Klein’s “better option” does kind of hove into view: Kamala Harris, probably, and if not her, then a warm body can be plucked from the “ton of talent in the Democratic Party right now.” And this would all get sorted out at the Democratic National Convention in August. “Could it go badly?” asks Klein. “Sure. But that doesn’t mean it will go badly. It could make the Democrats into the most exciting political show on earth.”

Setting aside the fact that the party’s current streak of passivity bodes poorly for this promise of certain electoral Barbenheimer, what Klein is talking about is a brokered convention. This idea gets raised every election cycle, usually by some desperate crank clinging to the hope that the inevitable might be forestalled, but it’s an especially strange prescription for 2024. Democrats are said to be fighting to save democracy, so kicking voters to the curb in favor of allowing a few thousand party delegates to decide the nominee is an odd look. This plan would also leave a lot of vital work to the last minute, as there would be no Democratic presidential candidate until the third week in August. From there, the Chosen One will have to spin up an entire campaign on the fly, playing logistical catch-up with a Trump team that will have had many months’ head start and which will no longer have to go up against the one politician to have ever bested him.

But I’m getting ahead of myself. Before we even arrive at that daunting task, we will have to endure several months of pre-convention party infighting as every Democrat with presidential aspirations realizes that if they fail to win the brokered convention sweepstakes and the party nominee wins in November, their Oval Office dreams will get deferred until 2032. Here, we will see the same intense rivalries of an open primary, but instead of playing out on debate stages and cleansed in the sanitizing fire of “the people deciding,” all of this internecine strife and backstabbing will take place in the media and culminate in what will likely be a chaotic convention floor fight broadcast live to the nation on prime-time television.

Naturally, one out-of-the-box solution to this problem is for Democrats to somehow coalesce around the idea of Kamala Harris as successor. Getting there would require the biggest and most influential names in Democratic Party politics to first agree to this and then mount a blitzkrieg of arm-twisting and dealmaking to bring everyone on board. This would be no mean feat, especially considering the fact that Harris has been perpetually dogged by the criticism of anonymous Democratic insiders for as long as I can recall.

Beyond the slings and arrows of outraged presidential aspirants, Biden’s removal will also open deep factional wounds within the party that the Biden presidency successfully cauterized. To his credit, Klein is aware that the president played a role in bringing about this détente. But a more detailed examination of this effort, documented in the newly released book The Truce: Progressives, Centrists, and the Future of the Democratic Party by Hunter Walker and Luppe Luppen, calls into question whether that unity can survive his absence, since so much of it was wrought on the strength of Biden’s preternatural ability to engender trust and forge surprising alliances, especially with progressives. Biden’s removal from the ticket will almost certainly sunder this truce and restart a bloody battle for the future of the party.

There is one final thing to dread in this scenario: With bickering personalities and factional bloodshed taking center stage, kicking Biden off the ticket will lock the party into an epic “Democrats in disarray” newscycle that will last until election night. I’m sorry to say this makes a certain amount of sense: Removing Biden at this point is, at bottom, a desperate act from a party that’s losing the election. For the media it’s chum in the water. And as I’ve said before, you should not count on proponents of Biden’s banishment to ratify the decision as sane or sensible after the fact, let alone provide positive coverage in return for having changed horses in midstream.

Moreover, the brokered convention scenario sets the table for a smorgasbord for the political press. Plates will brim with all of their favorite delicacies: chaos, conflict, and controversy. There will be much on the menu. You’ll have anonymous dissenters shivving Democratic decision makers in the pages of Politico; grass-is-greener bedwetters bemoaning the fact that their preferred candidate didn’t get picked; Twitter discord from all quarters mined for clicks; and the inevitable rise of a “We miss Joe Biden” faction to cluck-cluck at those who made the fateful choice. And all of this content will get stuffed into a news hole at the expense of any or all the messaging that Democrats might want to stick there.

It’s definitely possible to imagine that some candidate, free from the gerontological concerns that dog Biden, might have an advantage against Trump. This is what Julián Castro was warning about four years ago, after all. But if the party makes a switch now, the road ahead will have many points of pain and many opportunities to wear that precious advantage down. It could end up being a wash in the end, or worse. It’s definitely not going to be as easy as many proponents of this plan are willing to admit right now. But if Democrats choose to make this leap, they should make sure they do what they failed to do in 2020: peer over the edge of the cliff from which they’re about to hurl themselves, and steel themselves for the long descent.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

What do Democrats need to do to win in November? The New Republic took up that question this month in a series in which some of the brightest minds offered their best advice to President Biden and his party. But in an essay mapping out the challenges Democrats face, and how to surmount them, editor Michael Tomasky wrote something that has remained lodged in my mind: “It practically goes without saying that the Democrats will do none of the things I suggest.”

I’m pretty sure that Michael didn’t intend that one line to linger the longest. But it’s borne out so far. Here at the precipice of the general election, Biden has important accomplishments to trumpet and significant errors to overcome. But he’s being served poorly by his party, which seems adrift, complacent, and inert. Republicans, by contrast, have been sharper and more savage; at the moment, they are winning.

The recent fallout from the report by special counsel Robert Hur—the Trump-appointed U.S. attorney whom Attorney General Merrick Garland tapped to investigate Biden’s potential mishandling of classified documents—neatly illustrates the differences between the two parties. While absolving Biden of criminal wrongdoing, the report characterized the president at length as someone with worrisome memory lapses.

I don’t know if Hur went about his job with partisan ends in mind, but partisan ends were served nonetheless: The report surfaced derogatory information in a way guaranteed to make news. From there, an exceedingly well-oiled GOP communications machine swung into operation. Democrats have largely responded by complaining about how the media has framed the story. Their complaints may have merits, but what matters is they’re losing.

As The New Republic’s Osita Nwanevu noted, it was a “collision of Democratic pathologies” that put Hur “in the position to shiv Biden” in the first place: “Gerontocratic politics, a culture of hero-worship that gave Garland far more respect and stature than he was ever due, and the commitment to even-handedness” led Garland to believe that the fair thing to do was put a Trump-appointed attorney in charge of the investigation. But the biggest pathology on display here has to do with the way Democrats approach the media and their extreme disinterest in competing on the same playing field as the GOP.

There are always good reasons to complain about the political press—and Republicans do their own share of carping. But Democrats too often operate as if the media they’d prefer to have—temperate and fair, dedicated to substance and nuance, committed to preserving democracy—is the one that actually exists. Republicans don’t believe that the press is a noble institution and they don’t treat its members that way. Instead, they innately understand that the political press is just a ravenous, insensate maw looking for its next hot meal of crassness, chaos, conflict, and controversy—and Republicans always come with a heaping plate.

Once the Hur report became national news, GOP electeds acted quickly and decisively to keep this new shiny ball spinning. As Brian Beutler reported in a recent newsletter, the full-court press is on: “Hur is now negotiating with his fellow Republicans on Capitol Hill over what he can testify to and when he can appear at a hearing. Those same Republicans have insisted that the Justice Department release a transcript of Biden’s interview with Hur, so they can clip and circulate any instance in which Biden’s memory failed him.” Once the GOP gets a scent of some derogatory information, they are prepared to act on it.

The Democrats compare unfavorably to their opponents’ fervent determination and preparedness. In a previous edition of this newsletter, I noted that Representative Jamie Raskin had surfaced evidence that Trump had “pocketed at least $7.8 million in payments from foreign governments during his presidency,” but that the investigation hit an impasse when the GOP took over the House. Democratic senators have a committee where they can pursue open-ended investigations, but they have no interest in advancing Raskin’s case.

And the Hur report, while mainly damaging to Biden, also happens to cast Trump in an unfavorable light regarding his own handling of classified materials. Democrats don’t seem interested in using their own investigatory powers to raise further questions or make a big stink about the matter. Beutler ruefully noted that the media didn’t “swarm to the unflattering contrast between Trump and Biden” because Democrats largely ignored it.

This is malpractice, especially when you consider how swiftly and purposefully the GOP acts on similar shreds of information. But Democrats’ aversion to playing the game in the most effective manner is bone deep. They’re ignoring a myriad of other areas where further unflattering facts can be found. What might be behind Trump’s plan to abandon NATO? What shady arrangement may lurk at the heart of the favorable treatment he’s receiving from his pet judge Aileen Cannon? Democrats don’t seem to want to fill the newshole with these discussions.

Nor do they seem to want to make daily hay of Trump’s many legal woes. They aren’t pouncing on the fact that he recently confused Nikki Haley with Nancy Pelosi. The former president has vowed to repeal and replace Obamacare. Why aren’t Democrats beating him up over that? Republicans’ similar plans to end protections for patients with preexisting conditions were a potent campaign issue for Democrats in 2018. Have they forgotten?

What do the Democrats stand for? Who are their enemies? What fights do they want to pick? Can they even answer these questions? Because while they dither, the public is forming some wild opinions about what should go in the spaces they’re leaving blank. Recent polls indicate that half of Americans think that Biden got favorable treatment from Hur in the document probe. Another recent poll indicates the public blames Biden for killing the border deal, despite the fact that Trump publicly browbeat GOP electeds into nuking it. After the expiration of the expanded child tax credit, voters who had received those benefits swung their support to the GOP, despite the fact that they were the most prominent opponents of the expansion. And majorities of voters still don’t hold Trump responsible for the repeal of Roe’s abortion protections.

Perhaps the press should be doing a better job conveying this information. I certainly harbor little affection for mainstream political reporting; there are definitely patterns of behavior among the elite media that rebound to the detriment of Democrats alone. But at a certain point Democrats simply need to shoulder the responsibility themselves instead of waiting for the media to cure itself of habits that have been entrenched for decades.

Instead, they are getting in their own way, mired in weird pathologies and maladroit tendencies, timidly waiting for nonexistent referees to come and level the playing field on their behalf. There’s no getting around the fact that Joe Biden is old and steadily getting older. It’s up to other Democrats to lend his campaign youth and vigor; instead they are supine and moribund. Watching this party execute its campaign plan—if you can call it that—you’d never suspect that it feels any urgency. But there is much at stake, and Democrats are absolutely blowing it.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

The first few weeks of this young year have only resurfaced an old problem: the continuing economic havoc that’s roiling the journalism industry. Hundreds of positions have been cut at venerable institutions like the Los Angeles Times and The Wall Street Journal. Start-up concern The Messenger eliminated itself from existence, leaving behind scorched earth and recriminations. This week, TNR’s Ellie Quinlan Houghtaling dove into this rot and found much of it coming from the top, with a plutocratic ownership class that’s driving good businesses into the ground on the backs of poor choices and bad ideas.

Just about everyone in this business has had some brush with the employment grim reaper—or is glancing over their shoulders in fear of the next encounter. But every once in a while, we catch sight of the ways that journalism, with a little bit of stability and good decisions from the top, can still make a huge difference in the lives of ordinary people. And this week, we can celebrate one such example in the state of New York, where some good old shoe-leather reporting has helped lawmakers craft a new bill to crack down on one of the most costly financial crimes we face: organized corporate wage theft.

Back in September, I highlighted a blockbuster report from ProPublica, who, working in a partnership with Documented New York, dug through federal and state databases and uncovered a staggering degree of wage theft: From 2017 to 2021, “more than $203 million in wages had been stolen from about 127,000 workers in New York.” While it is an inexact science to compare one state to another in this regard, ProPublica reported that its “analysis of cases reported to the U.S. Department of Labor and substantiated by federal investigators shows that New York ranked eighth highest in the amount of back wages owed per worker.”

But the best thing about all that reporting is that it’s been put to very good use. As ProPublica reported this week, New York state lawmakers have proposed a battery of bills that will bring the hammer down on wage thieves by allowing state agencies to strip scofflaws of their ability to do business.

One bill, centered on the restaurant industry—where workers in New York had $52 million stolen from them between 2017 and 20201—would allow the “New York State Liquor Authority to suspend liquor licenses for bars and restaurants that the Department of Labor has determined owe more than $1,000 in back wages to their workers.” The second bill “would enable the Department of Labor to place a stop-work order on any business that has a wage theft claim of at least $1,000”; this has been an effective punishment in other cases. Finally, the third bill “allows the New York State Department of Taxation and Finance to suspend a business’s certificate of authority—which allows it to collect sales tax and conduct business—in cases where wage theft exceeds $1,000.”

Anyone who runs afoul of these new laws can get themselves off the hook using one neat trick: Pay up within 15 days! Otherwise, it’s a pretty severe punishment. But it’s one that fits a truly heinous crime, and if the past is any guide, wage thieves have prospered because of the way the law too often doles out mere slaps on the wrist.

A Popular Information report from January explains that this has been what’s missing: While the Department of Labor can penalize wage thieves, it is only empowered to impose civil penalties against repeat offenders or when it finds that the wage theft was “willful.” Consequently, penalties are only “imposed 41 percent of the time.” And when they are imposed, they’re rarely stiff enough to trouble large firms: “The maximum civil penalty is $2,374 for each violation. In contrast, in Australia, the penalty for wage theft is up to $630,000 per violation.” That these new laws have actual teeth is a big improvement.

Back when I first wrote about the scourge of wage theft, I focused on the way the media industry was dropping the ball by elevating shoplifting and organized retail theft to national panic status. This feeding frenzy over penny-ante crime—one estimate put the real cost of the shoplifting wave at “seven cents per 100 dollars in losses”—was often promulgated through too-good-to-check stories that fell apart under the slightest scrutiny. Wage theft, by contrast, is a massive crime: A 2014 study from the Economic Policy Institute found that wage theft “costs American workers as much as $50 billion a year.” It deserves massive attention.

In terms of how the media has treated both issues, this is a Goofus and Gallant–style comparison. All the shoplifting coverage in the world has produced little more than bogus stories and reactionary fearmongering over crime. ProPublica demonstrated how better journalistic choices lead to an informed public and impact in the form of laws that will help solve a truly rampant problem and actually help ordinary people.

It also earned a ringing endorsement from state Senator Jessica Ramos, a co-sponsor of the aforementioned bills: “We knew from our conversations with labor and from our constituent service caseload that wage theft is a chronic problem,” she said. “We did not have the data to understand the scale of the issue in New York state until the ProPublica and Documented series came out last year.” It goes to show that journalism still works when it’s uncoupled from idiot bosses.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

Just about three years ago, Time’s Molly Ball dropped an epic piece of reportage on the wild months from Joe Biden’s presidential victory through the terrifying events of January 6, 2021. During this fraught time, an unusual champion emerged in the fight to protect democracy: corporate America. As Ball documented, “the forces of capital” teamed up with “the forces of labor” to rebuff the loser who refused to admit he had lost, with “hundreds of major business leaders, many of whom had backed Trump’s candidacy and supported his policies, [calling] on him to concede.”

It’s hard to know where we’d be today if this unity campaign hadn’t emerged. Sadly, I have grave doubts that Big Business is going to re-up for another campaign to save America, as some CEOs are already making clear that they don’t find Trump so dangerous after all.

Longtime readers will recall that I take a pretty jaundiced view of the idea that corporate America has a vital role to play as a stabilizing force in our democracy. But I’m happy to acknowledge that the most recent vintage of right-wing rhetoric sometimes makes it seem like Republicans and corporate America are headed for some kind of split. Not long after Ball’s reporting, The Wall Street Journal’s Editorial Board published a lengthy screed about the “left turn of many corporate CEOs” and their failure to remain “a reliable friend of capitalism”—just one of the larger rounds expended in the right’s war on “woke corporations.”

TNR’s Osita Nwanevu wasn’t buying it. “It’s preposterous to characterize them as material enemies of the right given that they clearly want to funnel money and resources to Republican lawmakers any way they can without raising hackles from vigilant activists,” he wrote. “They owe their market power and low tax burdens to conservative policies, after all, and for all the right’s moaning and groaning about ‘woke capital,’ Republican rule is still a better deal for them than Democratic governance.”

Faced with the prospect of another four years of Democratic governance—especially under the auspices of a president who has showered more favor on the labor movement than any of his recent Democratic predecessors—corporate America seems to be returning to its old malodorous form. The most telling sign came, naturally, at Davos, where J.P. Morgan Chase head Jamie Dimon began the process of making peace with Trump’s return: “Take a step back. [Trump] was kind of right about NATO, kind of right on immigration. He grew the economy quite well. Tax reform worked. He was right about some of China. He wasn’t wrong about some of these critical issues.”

As Brian Beutler pointed out in his Off Message newsletter, this was worthy of alarm bells: “The question of whether elites, particularly center-right elites, choose to abide fascism is central to the survival of democracy.” In a later post, Beutler dove deeper into Dimon’s rhetoric, and found evidence that whatever ties that might have bound him to the more high-flown ideals of our democracy were fraying:

I’d bet a large sum of money that Dimon knows Donald Trump tried to overturn the 2020 election. I’d bet almost as much that Dimon knows Trump has promised to establish a dictatorship on “day one”; that he has demanded immunity for any crimes he committed from 2017-2020, and any that he might commit from 2025 onward.... And yet to hasten another round of tax cuts and reduced bank regulation, Dimon will tell the world he thinks Trump is a populist everyman who gets a bad rap.

There’s no way to know for sure whether the political media will successfully discern the con of Dimon plumping Trump as a “populist everyman,” especially given the fact that over the course of the Trump era, they have continually conflated “populism” with “boorishness.” Still, this isn’t the worst development from the perspective of those who are running Democratic campaigns this year—it would be ideal to raise the salience of a Wall Street embrace of Trump, especially considering Biden’s vastly superior record on labor. As TNR contributor KJ Boyle documented at length, life for the average worker got vastly worse during Trump’s reign.

Biden’s vital corrections to that grim era may, in fact, be the very reason that Dimon is looking to the orchestrator of the attacks on the U.S. Capitol for relief. It wouldn’t be the first time such an alliance was attempted: Back in 1933, a cabal of financiers attempted to orchestrate what came to be known as “the Business Plot,” a plan to overthrow President Roosevelt’s government via an ersatz uprising of aggrieved veterans. They made the mistake of asking retired Marine Corps Major General Smedley Butler, the famously repentant author of War Is a Racket to lead it, only to learn the hard way what a blunder it was to ask a man of great integrity to lead a campaign against democracy when he instead sold the coup plotters out. Suffice it to say, Donald Trump does not offer similar impediments.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

It appears that we’re all going to pretend to have a GOP primary a little longer. Eight days after his decisive win in the Iowa caucus winnowed the field to two, Donald Trump comfortably beat Nikki Haley in the New Hampshire primary. The former South Carolina governor is soldiering on, apparently on the grounds that hers was but a minor shellacking and not a campaign-killing blowout. But the end will arrive soon enough—perhaps in her home state next month.

With Trump all but officially the nominee, though, Republican politicians are now turning to the question of how he can win over non-MAGA voters—and there is a scent of uneasiness in the air. In something of a plot twist, GOP lawmakers have grown discontented with the way their party’s rickety platform offers few selling points for the party, with some members “very publicly complaining about [its] lack of accomplishments,” according to reports. 

NBC News’s Sahil Kapur reported that there is a “dynamic that looms over Republican lawmakers,” in which they’ve “passed little substantive legislation since winning the majority” and are struggling with “the basics of governing” and beset by internal “fractiousness and chaos”—all of which is apparently complicated by the fact that Trump’s policy platform is mainly about “retribution” and spreading “fabricated claims that the 2020 election was stolen from him.”

Last November, we got our first inkling of this strange insecurity when Texas Representative Chip Roy went to the floor of the House to have a nervous breakdown about the deficiencies he saw in his own party. “One thing. I want my Republican colleagues to give me one thing. One. That I can go campaign on and say we did,” Roy ranted. “One!” (Apparently taking credit for the infrastructure bill that most of them voted against doesn’t quite cut it.)

This is a lot like a Girl Scout expressing outrage over the organization’s commitment to cookies. Nearly all of Roy’s disgruntlement can be chalked up to the simple fact that he’s a member of the Republican Party, which hasn’t really been  trying to accomplish anything  for a long while. Three years ago, TNR contributor Katelyn Burns took stock of the GOP and found that it had all but abandoned meaningful policymaking in favor of “entrenching itself in the distant patriarchal mythology of America’s past” and waging culture war against liberals. A Republican adviser to former Senator Rob Portman summed it up: “If you want to spend all your time going on Fox and be[ing] an asshole, there’s never been a better time to serve. But if you want to spend all your time being thoughtful and getting shit done, there’s never been a worse time to serve.”

It is deeply funny that Roy has emerged as one of his party’s foremost critics in this regard. In a profile last year, TNR’s Pablo Manríquez described Roy as a “viral bomb thrower” with scant history of bipartisan accomplishment and a tireless critic of the debt ceiling and funding deals that House Speaker Kevin McCarthy had to make to keep things running. While Roy came out against the motion to vacate that began the process of ousting McCarthy, his replacement pick, Jim Jordan, was even less suited to accomplishing anything—unless his quixotic efforts to invent some sort of reality-based foundation for the party’s incessant culture warring counts as a “thing.” 

In his public remarks, Roy seems to understand that the primary impediment to Republican accomplishments is the fact that Democrats control the Senate and Joe Biden occupies the White House, and that getting things done requires Republicans to engage Democrats and forge deals. From what I can discern from his rantings, though, he has no real plans to do this, preferring instead to shout loudly and indiscriminately at the situation while assailing other members of his party for their lack of magical thinking. 

This is where Roy stands out, even among his caucus: He seems to hate some of his Republican peers at least as much as Democrats. At one point during a recent floor speech, Roy professed outrage over the fact that passing a border deal might require Republicans to have to talk to Senator Mitt Romney and other Republican senators to convince them to support the effort. “So what?” he declaimed about his House colleagues’ plans to pass a border security bill out of the House. “Are you going to pass that bill and walk over [to the Senate] and convince that great stalwart of defense of our border, Mitt Romney, that he should vote for it? Are you going to convince any of the 12 who just voted to redefine marriage and stomp all over religious liberty … are you going to convince any one of them to vote for a strong border security bill?”

It’s notable that Romney features here, as Romney is perhaps the last prominent Republican to rise up through the ranks on the back of a famous policy accomplishment. But over the years, the Commonwealth Care health care reform he enacted in Massachusetts has gone from being an acclaimed example of GOP problem-solving to forbidden knowledge of which none must ever speak. 

Romney’s stock within the party has declined in direct proportion to his party’s commitments to policymaking. It’s been an ignominious trajectory—but more so for the country than the GOP. Because for all of Chip Roy’s carping, it’s a simple fact that the modern GOP doesn’t actually need policy accomplishments to win elections. This is a party built to thrive on gerrymandered districts, Senate malapportionment, Electoral College shenanigans, and other well-funded game-rigging and voter-suppression efforts—the better to survive the unpopularity that comes from not ever contributing to the civic fabric or the betterment of the country. 

But Chip Roy should take heart, because Trump’s presumptive nomination suggests that Republicans will have specific things to run on in 2024: another round of tax cuts for rich corporations to fund more stock buybacks, a fresh attack on Obamacare and its protections for patients with preexisting conditions, and, of course, the furtherance of abortion restrictions as dictated by the party’s most sociopathic extremists. I would definitely encourage Republicans to be true to themselves, and run on a promise to accomplish these things.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.