THIS WEEK INSIDE THE BIG TENT:

I’m guessing you've heard things went abysmally as expected for the right to abortion at the Supreme Court on Wednesday. Absent an unexpected crisis of conscience striking John Roberts and another justice to his right, Roe v. Wade will either be nullified or explicitly reversed by the summer at the latest. 

Since I don’t have to belabor the moral horror of criminalizing abortion, let’s skip right to the politics. Ever since the Supreme Court agreed to hear Dobbs v. Jackson Women's Health, and more acutely after the Court allowed Texas’s medieval anti-abortion vigilante law to take effect, mainstream conventional wisdom (fanned by Democrats) has treated the looming demise of Roe as a kind of dog-that-caught-the-car moment for Republicans. It’ll clear all the nonsense out of partisan politics and make the abortion issue central to the coming election in a way it hasn’t been in decades, placing Democrats in pole position. 

Perhaps it will; nothing about the future is written and it's easy to imagine backlash to a ruling that will deprive half the population of equal liberty under the law. But I think people should at least prepare themselves for the possibility that Roe will fall and either little will change about the political course we’re on, or morale among Democrats will actually plummet when their concurrent majorities in Congress—thin as they are—prove unable to respond to the decision. 

I, of course, appreciate how tenuous the Democratic grip on power is and see little value in lashing out perfunctorily every time Democrats fail to do what they lack the votes to do. But if it turns out that they don’t in fact have the votes to fix the criminalization of abortion (and I suspect they don’t) they should give some thought to how to communicate that to the people who will turn to them for action. What worries me is less that they won’t be able to respond to the ruling in any substantive way, but that they won’t be able to articulate a plan of action that convinces tens of millions of voters that all isn’t lost. 

Wondering why I’m worried? Here’s why!

To those asking, Dick Durbin is chairman of the Senate Judiciary Committee, and the Senate majority whip; the DSCC’s job is to elect Democrats to the Senate, including the ones who swung control of the Senate to Democrats in 2020; and Biden is the president, who has concurrent congressional majorities right now, though no one can say for how long. 

When Roe falls, people are going to turn to their elected leaders for relief, and Democrats are going to need a better answer than “elect Democrats.” Not because the answer is wrong, exactly, but that it awkwardly and conspicuously ignores the obvious: Democrats turned out harder than voters have ever turned out in an election in 2020, enough to give Democrats undivided control of government, but now they say there’s literally nothing they can do other than hope the midterms go even better. 

It’s true in an almost trivial way that the solution to the problems Republicans create is to elect more Democrats. If the country had elected more Democrats in the past, we wouldn’t be facing the demise of Roe, and faced with the demise of Roe the only thing that will restore the right to an abortion is more Democrats. But if after the singular effort to unseat Donald Trump, the number of Democrats currently in power isn’t enough to do more than fundraise and campaign off of Republican minority rule, people are going to notice and some are going to assume the situation is hopeless. Lecturing them about the past would be a terrible idea, but treating their frustrations over the party’s paralysis as unfounded wouldn't be much better. 

Here’s where I think the problem runs deeper than the vicissitudes of losing Roe with a 50-50 Senate. Party leaders have never actually reckoned with either how vulnerable they are to the depredations of minority rule, or (more importantly) how aggressive they’d have to be to avoid it. 

Let’s use Roe as an object lesson. If Roe falls, and Democrats respond in essence by saying “elect more Democrats,” they’re going to get a resounding earful from people who expect them to use their power now, while they have it. I hope that backlash prevails on them, but one way around it would be to level with people: We will fix this by doing X, but we can’t do X until we have Y more Democrats than we currently have. That approach would have the virtue of allowing voters to hold them to a promise. But it’d also require them to specify X and Y, and I think they’re in denial about both.

Right now, Democrats are split between a “fix this at the ballot box” appeal from the leadership and a more aggressive “codify Roe” appeal from the left. More precisely, the party is united in the belief that the solution to the coming Dobbs decision is to codify Roe—it’s just that the leaders are glossing over the fact that they don’t currently have the votes to abolish the filibuster (a prerequisite to codifying Roe), whereas the progressives think the party should use an adverse holding by a corrupt Supreme Court as a basis to abolish the filibuster and codify Roe now, while they have the power. 

Between the two factions, I’m with the left, but even they are borderline delusional if they think that alone would solve the problem. Ask yourself: If Democrats were to codify Roe tomorrow, or the day after the Court strikes it down, how long would you give it before Republicans found a right-wing judge willing to enjoin the new law nationwide? What odds would you give that law before this same Supreme Court? At oral argument on Wednesday, Brett Kavanaugh characterized the anti-abortion position like so: “the Constitution's neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” Even if you ignore the weasel word “perhaps,” this is the same screamin’ cryin’ Brett Kavanaugh who said he’d respect precedent to get himself confirmed, knowing he was lyin’. If we’re clear-eyed about who Republicans are and why they stole the courts in the first place, we have to assume that the Women’s Health Protection Act is a dead letter unless it’s accompanied by legislation to expand the courts. 

To make a promise they can keep, Democrats need to say “elect X Democrats and we’ll abolish the filibuster, codify Roe, and expand the courts to protect the new law.” I’m skeptical that any plausible value of X would allow this party to make that promise credibly. But the situation’s more dire still than that, because they can’t even attempt to fix the problem in 2023 unless they retain their concurrent majorities, and they can’t do that unless they hold the House, which is unlikely to happen unless this Congress (at the very, very least) bans partisan gerrymanders. Which brings us right back to the 50-50 Senate majority that currently lacks the votes to abolish the filibuster. 

The problem is almost too daunting to contemplate, and almost certainly insoluble unless Democrats accept that they must solve it now. Unlikely as that is, it’s definitely not going to happen if the party’s leaders don’t come to terms with how bad things are and plead with the rank and file not to stand idly by while the minority party seizes power and wrecks the country beyond fixing. 

The only nice thing about staring doom in the face is it focuses the mind. Democratic leaders are clearly not prepared to accept what I wrote above as their fate today, but the sooner they do, the sooner they might get their act together, if only to save themselves. As I’ve written before, there’s still the tiniest of openings for them to do what currently seems impossible, and the only reason to think they might is that they must. But they may also just be too exhausted to will themselves to try. Less “carpe diem!” more “RT if you agree.” (Here I'll add that it'd be nice if the average age of the party leadership was lower than 77.) 

Earlier this week Politico explored a schism within Biden world over whether he should attack Republicans or not. Really! When you read closely, though, you find a faction between the Dems who want him to go on the offensive and those who don’t—and they’re mostly concerned that Biden doesn’t have the fire in the belly for it. As John Podesta said “I think for the president, it’s not where he’s comfortable.”

That much is plainly true.

Even at this late date, Biden says he’s “surprised” that not a single Republican” supports his Build Back Better agenda. He may not actually be surprised (god help us if he is) but he also can’t bring himself to say he’s “appalled” or “disgusted.” This week we learned Donald Trump knew he was infected with coronavirus before his first debate with Biden last year, and concealed it, exposing tons of people, including his elderly opponent, to COVID-19 in the process. This should be an enduring scandal, but Biden’s impulse when asked for his response was to say “I don’t think about the former president.”

There are any number of reasons Biden should be thinking about what Trump’s up to, including his, um, ongoing efforts to overthrow the Constitution. But this one is an absolute gimme! It would not require him to take any personal umbrage; he could say “I’m less concerned about Trump's willingness to kill me than to kill others who wouldn’t have had access to the best care,” and leave his surrogates to express outrage at the incredible fact that Trump knew he was COVID-positive at that debate. The whole party could support an inquiry into the chain of infections that stemmed from Trump’s behavior to better understand the toll of his conduct. They might find out he killed someone! They might find out government doctors gave him palliatives to mask his symptoms. And there’s already a House committee constituted to investigate it. But by saying, in essence, “NBD!” Biden gave the national press and House Dems the high sign that it’s fine to move on, and presumably they will. 

Whatever psychological pleasure Democrats derive from floating above the fray like this, or whatever polls tell them about its political wisdom, it just doesn’t work, and it doesn’t work because it’s incongruent to the realities staring them in the face. It’s how you wind up responding to a coup attempt with an infrastructure bill while the fascists convince more voters that you’re the real threat to democracy. It’s how, faced with the completely predictable demise of Roe v. Wade, you constitute a court-reform commission to put the kibosh on court-expansion efforts, only to realize at the last possible moment that court expansion has been our only hope all along. More than anything in the world, Democrats want it to be one way. But it’s the other way.