The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Let's Talk About The Debate


I wasn't planning on watching the presidential debate. Contrary to what readers may believe, I do not like politics. I much prefer the law. I'd rather read a transcript of oral argument than sit through a meaningless political debate. My agenda for last night was to finish a long post on Murthy and finish reading Jarkesy. I only managed the former task. I turned the debate on when a friend messaged me that the 25th Amendment should be invoked. It was hyperbole, to be sure, but not too far from the truth.

Here are a few reactions. First, we often talk about judges in a state of mental decline: Judge Posner, is an extreme example. To a lesser extent, we've discussed Justices Ginsburg and Stevens. But even at their worst, these jurists were orders of magnitude more coherent and confident than anything we saw last night. Perhaps the presidency takes a bigger toll on a person than a judgeship.

Second, I think back to Ron Hur's report:

"We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness."

Based on everything I saw, Hur's assessment seems accurate. He was being kind. My reaction last night was one of pity and sadness, not anger. And this was Biden after a lot of prep! Can you imagine how he appeared after hours of free-wheeling interviews. For good reason the Administration does not want to release the recording. If you were to just read the transcript of the debate, you would not get the full image. But the audio is very instructive.

Third, my grandfather suffered from senility. It was a slow, gradual process. In his 80s, there were good days and bad days. But over time there were more bad days than good days. And eventually, by the age of 92, there were only bad days. He died not because of poor health, but because he simply no longer knew how to feed himself, and later he no longer remembered how to swallow. His wishes were to not receive artificial sustenance, and we honored those wishes. I saw my grandfather on that stage last night–not grandpa who died, but grandpa several years earlier. He could still "fake it," and make you think he was following along by reciting things he remembered before. But he wasn't there. One of the hardest conversations we ever had concerned taking away grandpa's keys. He got into a car accident where he drove through an intersection and t-boned another car. We took his keys away. It was tough. But it had to be done. Those who love President Biden should have a similar conversation.

Fourth, does this affect anything at the Court? Perhaps the only thing that could knock down Trump today would be ruling against him on the immunity case. That waits till Monday. Last night I joked that Chief Justice Roberts may switch his vote to retain Chevron, given that there will almost certainly be a Republican presidency. But what about retirements? If Justice Sotomayor was even thinking about stepping down, seeing Biden's feebleness may give her some new consideration. She can still announce her retirement after the last session on Monday. Justice Kennedy did much the same. I think the Democrats could easily confirm a nominee before October. Maybe Justices Kagan and Sotomayor both offer to step down in exchange for Biden stepping down. Let's make a deal!

T-minus 27 minutes to opinons.

Update: For those interested, here is a video of my grandfather from March 2010, about three years before his death. This was during a Passover Seder, and was a good day. He was very critical of the Republican appointees to the Supreme Court–especially John Roberts, the young whippersnapper. He would have delegated the selection process to the American Bar Association. (My family's politics are nothing like my own.)