BTRTN: Dobbs, January 6 and How Conservatives Are Destroying All Three Branches of Government

Tom with the BTRTN June 2022 Month in Review.

June, 2022 was an utterly shocking month.  In stark and vivid terms, conservative leadership demonstrated, in wielding their power, just how contemptuous they are of America’s three branches of government.  There was the devastating mountain of sickening testimony presented at the January 6 committee hearings that depicted former president Donald Trump orchestrating a coup in his attempt to overturn his 2020 election loss; the complete evisceration by the Supreme Court of Roe v Wade, which buried, in one stroke, not only Roe but the hallowed concepts of judicial restraint, stare decises and any shred of non-political objectivity that once typified the Court; and the bare fact that both efforts were essentially enabled by the machinations of the top  conservative Congressional leaders, the shameless Mitch McConnell, in packing the Court with arch-conservatives in the Trump era using unscrupulous, if legal, tactics, and the spineless Kevin McCarthy, in backing Trump and his lies right on down the line, thereby lending official heft to Trump’s baseless charges, at a time when he might have helped to take Trump down for good.

It is hard to overstate what the January 6 committee has unraveled.  Culminating with – what else can one call it? – the explosive testimony of Cassidy Hutchinson, a former key aide to White House Chief of Staff Mark Meadows, the committee laid out in detail the story of how Trump attempted to overturn the 2020 election results absent any evidence of fraud.  Trump conceived the plan, inspired his acolytes to execute it, and tuned out anyone who disagreed.  Among those he chose to ignore were his campaign manager, the Attorney General, the White House Counsel and his own daughter, all among his most trusted and loyal advisors.  

He instead relied on the advice and schemes of the lowest of the lowlifes in Trumpworld, Rudy Giuliani, Sidney Powell, Mike Flynn and then, ultimately, Jeffrey Clark and John Eastman, to concoct and implement various paths to the coup.  Even with that, when Eastman told Trump days before the insurrection that Eastman’s own legal argument underpinning Trump’s strategy of choice -- pressuring Vice President Mike Pence to reject the election outcome on January 6 -- was an illegal sham, Trump ignored him too.  On that fateful day, Trump knew in advance that the mob he had invited to Washington on January 6 was armed; yet took steps to ensure their weapons were not confiscated; directed them to the Capitol to disrupt the count of the Electoral College vote; pressured Pence (as Trump was still following Eastman’s self-discredited script); and so desperately wanted to join the mob that he assaulted his own Secret Service officer in an attempt to take control of the wheel of his vehicle.  As the violence unfolded, he failed to call off the mob for hours while the insurrectionists attacked the Capitol, instead agreeing with the notion that the mob should “hang Mike Pence.”

The January 6 committee has been stunningly effective, and it’s easy to see why.  First, they created, with the help of former ABC News President and noted documentarian James Goldston, a disciplined narrative that has laid out, chapter by chapter, in crisp two hour segments, Trump’s criminal culpability for orchestrating The Big Lie and the insurrection.  Second, through an absolutely boneheaded decision by Kevin McCarthy, there is no pro-Trump representation on the committee to counter or disrupt that narrative (Trump and McCarthy also erred in blocking a bipartisan commission).  Third, the committee used the remarkably effective strategy of relying heavily on testimony from Trump loyalist after Trump loyalist, the members of his core team who hung with him through the election and some until the bitter end, including Bill Barr, Bill Stepien, Ivanka Trump and, yes, Cassidy Hutchison (as well as local officials who were bullied by Trump personally, but held firm in protecting the valid local election outcomes).  Thus we had the spectacle of a bunch of Trumpsters finally calling out their boss, at times under the guidance of deeply conservative Committee vice chair Liz Cheney and Republican representative Adam Kinzinger.

The committee did its work amidst new, clear evidence that the Department of Justice’s own investigation -- the one that has and can continue to lead to criminal prosecutions -- had moved up the food chain from the January 6 mob of Oath Seekers and Proud Boys to the inner sanctum of the White House.  First was the news that the FBI had raided the house of former Justice Department lawyer Jeffrey Clark, who tried to get himself installed as Attorney General to do Trump’s bidding, a plot that got far enough along that the White House switchboard actually referred to Clark as “Acting Attorney General” in their phone logs.  Then came word of the FBI’s seizure of Eastman’s cell phone.  Both of these conspirators won Trump’s ear with wild schemes intended to fulfill his wishes.  Their public targeting puts to rest the notion that the DOJ was going to sit this one out.  Whether any of this leads to criminal charges against Trump remains anyone’s guess, but the immediate legal commentary was that Hutchinson’s testimony was at least potentially a smoking gun in making (even completing) the case for Trump’s criminality on the grounds of seditious conspiracy (at the very least).

The hearings were rigorous in establishing the facts of the crime, yet laced with humanity (e.g., Arizona House Speaker Rusty Bowers’ earnest integrity and the anguish of harassed Georgia election volunteers Shaye Moss and Ruby Freeman) and surrealism (an out-of-control Trump channeling Captain Queeg, arm-wrestling with his Secret Service detail, hurling dishes and ketchup against White House walls).   Barr was a remarkably effective witness, his gravelly been-there seen-everything bluntness captured in a single sentence: “I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff which I told the President was bullshit.”  Hutchinson, the eleventh-hour star witness, absolutely crushed it, over-delivering against an impossible standard, taking on (and thus making formidable enemies of) her former bosses Trump and Mark Meadows with soft-spoken but assured testimony that belied her 26 years.  And there is more to come; apart from further planned chapters in the saga, Cheney also referenced new, clear evidence of witness tampering from Trumpworld, yet another potential crime for the DOJ to ponder.

The Roe decision was hideously argued in and of itself, a defiant defense of “originalism,” which essentially grounds modern, unenvisionable issues in the mindset of men (the framers) who, however noble their work, simply recognized neither the equality of women (or even non-landholding white men) nor the very humanity of Blacks.  Constitutional scholars have had a field day poking Mack-truck sized holes in Justice Alito’s arguments ever since it was leaked in early May.  The thinking was so misguided that the reversing justices issued four separate opinions, each distancing one conservative from another.  The liberals’ unified dissent essentially said that the only thing that was clear about the majority’s position was that they just did not like Roe.  They pointed out that the only rationale offered was that the right was not “deeply rooted in our history,” which essentially is a far more arbitrary line than the viability standard, and, of course, is also true of many other “privacy” rights that the Court, save Thomas, took great pains to say they were not threatening with Dobbs, including, say, the right to use contraception.

To paraphrase Churchill, never has such a fundamental right enjoyed by so many, for so long, been ripped to shreds by so few, based on so little.

But apart from the opinion itself, which reversed a 50-year old precedent that was reaffirmed by Casey in 1992, was the utter disregard the five justices displayed for the institutional authority of the Court, which has also been torn asunder.  As the now fully emasculated Chief Justice clearly saw, the right formulation for this particular conservative Court would have been to affirm the constitutional right to abortion (thereby preventing its criminalization under state laws) while ditching the viability standard.  This would have been less a reversal and more of a modification, and would have preserved some sense of the Court’s dignity in the process.  But in shattering the precedent in, yes, radical style, using vengeful, dismissive language, the Court has reached the apotheosis of its politicization. 

There are now simply Republican and Democratic wings of the court.  Some version of Roe will be re-instituted when the stars align again, when two conservative justices die with a Democratic president in the White House and a 50+ Democratic majority in the Senate, which could happen in days or decades.  This is insane; it’s the opposite from apolitical; it is simply another branch of politics, unelected and without term limits.  More to the point, if the Court was unwilling to find a path toward at least partially sustaining what is arguably the most important opinion rendered by the Court since Brown v Board of Ed, then we simply have no continuity of law anymore, and instead will be whipsawed from one version of the Constitution to the other and back again, on this and many other issues (such as the role of government administration, which the Court limited in another landmark cases that limits the EPA’s power to regulate coal factories, and voting rights, which the Court agreed to hear next year).

Two other factors make the reversal particularly contemptuous.  First, the decision comes, of course, after all three of Trump’s SCOTUS appointees foreswore any interest in overturning Roe, with Justice Kavanaugh, just to name one, strenuously stressing, in both private Senate interviews and the public Senate confirmation hearings the sanctity of stare desisis, emphasizing how Roe was not just precedent, but precedent upon precedent, as it was reaffirmed by Casey.  It is difficult to take any other position than that these paragons of the judiciary were simply lying under oath. 

Second, the reversal is opposed by the majority of Americans, including a healthy minority of Republicans, who generally support abortion rights.  Ruth Bader Ginsburg often critiqued Roe for being ahead of public opinion and thus ahead of its time.  Dobbs, on the other hands, 50 years down the road, is just the opposite, running counter to public opinion and behind its time.

The third branch of government, Congress, has also been cynically compromised in enabling these outcomes.  McConnell, of course, exhibited the ultimate act of party-before-nation in his back-to-back handling of the last two court vacancies.  No one has forgotten his refusal to consider Merrick Garland’s nomination in the last year of Obama’s presidency on the grounds that he thought the American people should speak first or his subsequently contradictory (and thus hypocritically) rushing through Amy Coney Barrett’s confirmation in the waning days of the Trump presidency.  The resulting trifecta of ultra conservative Republican justices, Gorsuch, Kavanaugh and Barrett, joined with Thomas and Alito to secure a SCOTUS that is generally out of line with the wishes of the American people.

McConnell, at the very least, though, voiced public objections to Trump’s behavior in the aftermath of January 6 and never endorsed the Big Lie.  Kevin McCarthy, on the other hand, quickly reversed his own public objections to Trump’s actions, ran down to Mar-A-Lago to beg for Trump’s forgiveness, and, course correction complete, continued on a path he dreams will land him the Speakership in 2023.  Had he joined with McConnell and stayed the course in the crucial post-January 6 period, they just might have succeeded in bringing Trump down. McConnell may have put party before country, but McCarthy put self before country.  Thus the GOP’s two most powerful active politicians have their fingerprints all over Dobbs and January 6, and whatever shred of dignity Congress may have held has also been buried.

The insidious nature of these common threads is perhaps best exemplified by SCOTUS justice Clarence Thomas, author of the most radical version of the Dobbs opinions (which threatened directly all “privacy”-based rights), and his wife Ginni Thomas, a zealous arch-conservative operator who was manically texting Mark Meadows as the Big Lie plan unfolded, exhorting him to push it as far as possible, and strategizing with him on how to restore Trump to power.  In the same time frame, Justice Thomas participated in at least two 2020 election cases, in Texas and Pennsylvania, which the court refused to hear, but in one of those rulings, Thomas dissented.  He also ruled in cases in which Trump was attempting to limit disclosure of January 6 materials.  How can it be that a member of the Supreme Court could pass judgment on a case (and arguing for it to be heard) involving aspects of The Big Lie when his own wife was part of the inner circle that was supporting it, and, we might add, advocating the overthrow the U.S. government?  “Recusal” seems a positively mild action to have expected from a SCOTUS Justice – how about turning his wife in for potential seditious conspiracy? -- but the American people did not even get that from him.

Trump, McConnell, McCarthy and the right wing of the Supreme Court have both exposed exactly how fragile our democracy really is, how dependent it is on norms that were understood for over 200 years but not codified, such as the right of a president to fill a vacancy on the Supreme Court, the conscience required of our leaders to put country before party, as the GOP did in 1974 when they abandoned Nixon for crimes that pale to those of Trump, and the rule of law embodied in stare desisis.  From there, it is a swift descent, and it is hard to be optimistic about the fate of our democracy – particularly when so much has happened when the Democrats actually control both the White House and the both House of Congress.  But as of now, each of our three branches of government has been badly damaged, if not destroyed.

It is entirely possible that the GOP has committed the most predictable error in politics:  overreach.  The degree to which GOP party faithful have fallen in line behind Trump, and the particularly radical argument forwarded in Dobbs on abortion, are both so far over the top that the GOP may end up doing the impossible:  giving the Democrats a chance in the midterms after all.  Joe Biden and the Democrats have long been seeking a catalyst or two that can change the unsightly 2022 midterm dynamics.  These two events give Democrats something they badly need:  a way to motivate their base, and talking points that distract from inflation.  Elections these days are won and lost in the suburbs, and it would be hard to find two more animating issues for that electoral segment than the curtailing of abortion rights and the criminal behavior of Donald Trump.  Swing state/district Republicans are not rejoicing over the Dobbs verdict, rather they are ignoring it.  Ignoring Trump himself is more difficult.

As for Biden, while his performance has been overshadowed by the Trump/SCOTUS news, and is still buffeted by 8% inflation and record gas prices, he did score some significant wins in June.  Democratic Senator Chris Murphy of Connecticut and Republican Senator John Cornyn of Texas led a bipartisan group that managed to put together a bill to stem gun violence, the first of its kind in nearly three decades, which Biden signed into law.  The bill is modest, to be sure, but Biden has now broken the partisan fever on two gridlock issues, infrastructure and gun control, with bipartisan legislation.  And while the war in Ukraine drags on, Biden scored a significant win – and Vladimir Putin an enormous loss -- when NATO issued membership invitations to Finland and Sweden.

Most of the major events of the months – the Roe reversal, the Hutchinson testimony and the NATO invitation, arrived in the last days of the month, so it remains to be seen how they will affect the measurable political environment.

But there is no mistaking one fact – Trump is weakening.  While he is still the leader overall in 2024 polling for the Republican nomination (at least pre-Hutchinson), there is at least one data point worth noting.  Just before both Dobbs and Hutchinson there was a University of New Hampshire poll that showed likely GOP voters in New Hampshire (the all-important first primary state, of course) breaking for Florida Governor Ron DeSantis 39/37 over Trump for the 2024 nomination.  Last fall, in a like poll by the same entity, Trump led DeSantis 43/18.

It is now clear, or clearer than ever, that the days when traditions that facilitated our democracy, based on handshake agreements and widely recognized norms, but not codified in any formal way -- such as the peaceful transition and stare decisis -- are gone for good.  And their demise has been the handiwork of the conservatives who control the levers of power and leverage at the highest levels of executive, legislative and judicial branches of government, and we are the weaker for it.

MADNESS

I could simply copy the above paragraphs (save the last few) again in full and it would be appropriate for this space, where we highlight the most outlandish event of the prior month.

But in the interest in offering something apart from the regular news that was outlandish, there is this.  We have previously used this space to note Sarah Palin’s return to elective politics, in her quest to fill Alaska’s vacant House seat in the wake of long-term congressman Dan Young’s death.  It gets better.

In June there was a special election primary for the seat.  A total of 48 people ran, including, including not only Sarah Palin but a candidate named Santa Claus.  Not that one, but rather a real Mr. Claus, who is a member of the city council of North Pole, Alaska.  We are not making this up.  Mr. Claus’s given name is Thomas O’Connor.  He was born in Washington, DC in 1947, attended NYU, worked in a variety of positions, including at FEMA, and changed his name to the more memorable regionally suitable current one in 2009.  As Yogi said, you can look it up.

Palin made it to the August run-off, but Santa did not survive the top-four-person cutoff.  

APPROVAL RATING

Joe Biden’s approval rating for the month of June dropped again down to 41%, the lowest of his presidency. 

HOW BIDEN IS HANDLING KEY ISSUES

Biden’s “key issue” ratings generally dropped a point or so from May levels, although there was a full 3-point dip on the question of whether America was on the “right track” or not.  That particular number, now down to 22%, is extremely concerning for the Biden Administration.

GENERIC BALLOT

In June polling, on average the GOP continues to lead the Democrats on the generic ballot by +2.6 percentage points, which has actually expanded the gap by another point.  There has been some excitement about Democrats about a new Marist poll which showed a +10 gain for Democrats in the genetic ballot, from -3 to +7 since April.  Alas, the Marist poll also showed a +8 swing in May versus April, and no other generic poll showed such movement.  The Marist poll is likely an outlier.

Using BTRTN’s proprietary models (which have been extremely accurate in midterm elections), if this lead was still in place on Election Day in 2022, and adding in +4 seats for the net impact of redistricting, the GOP would pick up about 26 seats and take over the House with some room to spare.  While this would be quite a decisive move, it would be of lesser magnitude than the losses experienced by Bill Clinton (-54 seats), Barack Obama (-63) and Donald Trump (-40).

 

 

BIDENOMETER

The “Bidenometer” dropped all the way down to +2 in June, which means Biden can barely made the claim that from an economic standpoint, America is “better off” than it was when he took over from Trump.

The drop down was mostly driven by a double-digit drop in the stock market and skyrocketing gas prices.  Consumer confidence also fell.  Unemployment remains very low, and we await a new GDP update next month.

As a reminder, this measure is designed to provide an objective answer to the legendary economically-driven question at the heart of the 1980 Reagan campaign:  “Are you better off than you were four years ago?”  We reset the Bidenometer at this Inaugural to zero, so that we better demonstrate whether the economy performs better (a positive number) or worse (a negative number) under Biden than what he inherited from the Trump Administration.

This exclusive BTRTN measure is comprised of five indicative data points:  the unemployment rate, Consumer Confidence, the price of gasoline, the Dow-Jones Industrial Average and the U.S. GDP.  The measure is calculated by averaging the percentage change in each measure from the inaugural to the present time.

The +12 means that, on average, the five measures are 12% higher than they were when Biden was inaugurated (see the chart below).  With a Bidenometer of +2, the economy is performing only slightly better under Biden compared to its condition when Trump left office.  Unemployment is much lower, the consumer confidence is higher, and the GDP is stronger.  On the flip side, gas prices have soared and the Dow is below where it was when Trump left office.  .

Using January 20, 2021 as a baseline measure of zero, you can see from the chart below that under Clinton the measure ended at +55.  It declined from +55 to only +8 under Bush, who presided over the Great Recession at the end of his term, then rose from +8 to +33 under Obama’s recovery.  Under Trump, it fell again, from +33 to 0, driven by the shock of COVID-19 and Trump’s mismanagement of it.  Now we have seen it move slightly upward to +2 under Biden.

 

 

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Notes on methodology:

BTRTN calculates our monthly approval ratings using an average of the four pollsters who conduct daily or weekly approval rating polls: Gallup Rasmussen, Reuters/Ipsos and You Gov/Economist. This provides consistent and accurate trending information and does not muddy the waters by including infrequent pollsters.  The outcome tends to mirror the RCP average but, we believe, our method gives more precise trending.

For the generic ballot (which is not polled in this post-election time period), we take an average of the only two pollsters who conduct weekly generic ballot polls, Reuters/Ipsos and You Gov/Economist, again for trending consistency.

The Bidenometer aggregates a set of economic indicators and compares the resulting index to that same set of aggregated indicators at the time of the Biden Inaugural on January 20, 2021, on an average percentage change basis. The basic idea is to demonstrate whether the country is better off economically now versus when Trump left office.  The indicators are the unemployment rate, the Dow-Jones Industrial Average, the Consumer Confidence Index, the price of gasoline and the GDP.