The Volokh Conspiracy

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Sad Thoughts About American Politics


The debate and its aftermath have crystallized some things in my mind, and I thought I'd note them. This subject is outside my academic area of expertise, so I appreciate that I might be mistaken in most or all of my observations. I also expect that others have put all this much better than I have. But I thought I'd pass along my thoughts, just as one American to others.

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[1.] It seems to me that the current situation highlights the major problems with the Democratic Party. Many Democrats must have been aware of Biden's cognitive decline. They must have been aware that it's a danger to the country, and a danger to their own election prospects.

They had ample opportunities to press the President to step aside graciously in time for a substitute candidate who could exploit Trump's vast political weaknesses. To the extent they were worried that Harris would be the obvious substitute, and that she would make a losing candidate, it didn't take a masterful political chess player to anticipate in 2020 that this might be a problem. And even though it's obviously difficult to get a President to step down—indeed, though it's difficult to get most people to acknowledge their own cognitive decline—the job of a well-functioning party is to be able to accomplish such tasks.

[2.] The current situation highlights the major problems with the Republican Party. Even if you support Trump, and agree with his policies, answer honestly: Would you have, twenty years ago, wanted someone like him as your candidate? Set aside whether you think he's the lesser evil: Do you trust him to be calm and collected in a foreign policy crisis? Do you think he's an inspirational leader? Do you think he's a worthy heir to the presidents you admire (whether Washington, Lincoln, Reagan, Coolidge, or whoever else)?

Even if you think his behavior on January 6, 2021 isn't as bad as it was painted, do you think it actually speaks well of his character and his trustworthiness? Do you believe what he tells you?

And even if you just want to stop the Democrats, how good a job has Trump done with that? In his time as the de facto leader of the Republican Party, he had one victory (2016) followed by three defeats (2018, 2020, 2022). Much of the public, including not just the far Left but many swing voters (and even some Republicans), views him extremely negatively—surely not a great quality for a political candidate.

Say the Democrats do persuade Biden to step aside, and persuade Harris to do so as well, and the Democratic Convention chooses a successful purple-state Democratic governor or senator. How confident are you that Trump will win then? Wouldn't there be some Republican candidates who would have been more effective at capitalizing on Biden's historically disastrous debate performance?

[3.] Now let's turn to the media. The media's job should be to inform the public about what's actually going on in the government. Certainly that should be so with regard to the cognitive abilities of the President.

Has the media done a good job of honestly informing the public of this? Was it doing a good job of reporting the problems (or at least accurately predicting them, if you think Biden has taken a sharp turn for the worse in the last few months) when the reporting would still have been relevant to the Democratic primary elections?

Either the media (not just the few outlets that assiduously reported on this question, but the media generally) learned of Biden's decline the night of the debate, when the rest of us did, or they knew it all along. If they learned it that night, what does that tell you about them? If they knew it all along, what does that tell you? Is either answer anything good?

[4.] Finally, let's turn to the criminal justice system. Trump was convicted of felonies. He's being prosecuted for other felonies.

Yet as a result his standing in the polls hasn't materially changed. Perhaps one might blame that in part on his militant partisans—but Trump continues to have considerable support among independents as well. Even polls that conclude that he has lost some ground among independents suggest the loss is relatively small, and that many independents don't view the convictions as stemming from a "fair and impartial process." (According to Politico, for instance, "a plurality of [independents said] that they thought that the verdict [in the New York criminal case] was the result of a fair and impartial process (46 percent), while others disagreed (27 percent) or said that they did not know (24 percent).)

Again, if twenty years ago you had been asked, "What would be the consequence for a presidential candidate if he was convicted of felonies, and was being tried for other felonies, all in the middle of an election campaign?," I expect your answer would likely have been "Disastrous." Either people have lost a great deal of trust in the justice system generally. Or they have concluded that in these situations the criminal justice system is being used as a political weapon rather than a genuine tool to protect the public from criminals. Either answer is bad.

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So what is the problem? One answer is bad people. But there have always been bad people.

Our constitutional system, not just the written Constitution but also the structures we've developed over the centuries, is meant to try to deal with bad people. Ambition is supposed to counteract ambition. Broad-based national institutions are supposed to check the excesses of narrow factions. Individual candidates' egos are meant to be constrained by those institutions—even when those institutions are themselves made up of flawed individuals with their own egos.

One way of thinking about this is to imagine this happening in a foreign country. Imagine that, unexpectedly, we Americans started to pay attention to an election campaign in some other nation. In that campaign, an 81-year-old incumbent who was obviously entering cognitive decline was squaring an off against a 78-year-old candidate who had been convicted of crimes, was being tried for other crimes, and who at the very least behaved highly un-Presidentially in response to a prior electoral defeat. Would we think that the foreign country had healthy political institutions?

I can't tell you what caused these problems. Is the shift to primary elections part of the reason? (Was the old smoke-filled-room system better?) Is ideological homogeneity among much of the media part of the reason? Is the growth of social media part of the reason? Is it something else? Even if we can diagnose the problem, is there any realistic path to a solution?

I just think that there's more going on here than two particular extraordinarily weak candidates. And to find a way forward, we have to figure out some solutions that transcend these candidates, and this election cycle.