It was all going according to plan a year ago. The Republican party would build on its successes, ignore its failures and win again, with a triumphant second term for Donald Trump as president, a second term that would, pretty much by its very existence, signal the triumph of conservative values, and the advance of those values across the country.
Trump would either win the election outright or, failing a victory at the polls where it counts, he’d throw the election results into chaos with a staggering wave of lawsuits and challenges presided over by judges Trump appointed. And if everything went south in the lower courts, why, Trump would just elevate the matter to the House of the Supremes, where three of his own hand-picked Justices would end the unpredictability and — ultimately, in spite of everything — make him the winner of the 2020 election.
No one back then war-gamed for the impossible. No one expected the party’s standard-bearer to disintegrate like a timed-release aspirin. No one, or very few, anticipated the worst public-health emergency in a century exploding on these shores like a million wildfires. And while racism is as predictable as the sunrise, no one could have envisioned the 8-minute, 46-second execution of George Perry Floyd, or the national paroxysm of protests in his name and honor and memory.
The tragically peculiar blend of calamities we’re trying to survive in 2020 has been unpredictable, to say the least. President Trump, the avatar of unpredictability, faces more of it from the same people most predisposed to support him. This “base” of supporters includes (among others) those amber waves upon waves of GOP voters, judges and politicians who believe in American government, and who place faith in that government above and ahead of the individuals elected to lead it.
They don’t constitute a groundswell, but their numbers and voices are starting to show. They’re tired of their party being identified with stasis and intransigence, and the corrosive nature of today’s world — from the economy to the pandemic, from the endangered environment to the endangered sense of our own identities — makes believing in an alternative way of governing not just optional but necessary. Their faith in that government spells huge trouble for Trump as he begins to chart the post-White House future he will inherit 48 days from now.
The best laid plans of mice, men and wannabe kings go sideways.
First, Trump screwed things up by losing the election by such a relatively lopsided margin — Trump got about 73 million while Joe Biden got more than 80 million votes, a difference of about 4 percentage points — that there’s no hope of a judicial intervention on the basis of a hairs-breadth difference in votes. There’d be no winning a squeaker of an presidential election on a technicality. And no grounds for questioning the outcome, based in large part on the Nov. 12 statement of Chris Krebs, (now) former director of the Cybersecurity and Infrastructure Security Agency.
Then there was the matter of diminishing returns. Some of the final states to come in with votes faced Trump campaign requests for recounts, or recounts after recounts, but the new tallies didn’t do Trump any good. Nevada, Georgia, Michigan and Pennsylvania certified their votes last week.
That might have been the worst of the Trump post-election saga, with the president-exit either losing or walking away from numerous lawsuits that tried to invalidate the election results in battleground states.
But the Trump campaign went on to make rather sad political campaign history, paying $3 million for a recount of the votes in Wisconsin’s presidential election – a recount that actually gained 87 more votes for Biden. It may be the first time in American political history that a presidential campaign burned good money to pad the opposition’s lead.
Trump lost another round on Nov. 27, in an opinion from the 3rd Circuit Court of Appeals, which refused to overturn certification of Pennsylvania’s votes, finding “no merit” to tireless Trump campaign allegations that the 2020 election was rife with fraud.
“Charges of unfairness are serious,” Judge Stephanos Bibas wrote in the opinion from the 3rd Circuit. “But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.
“The Campaign’s claims have no merit,” wrote Bibas, a judge Trump appointed in 2017. “The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory (for Biden in Pennsylvania). And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised.”
And Bibas offered a simple but ringing endorsement of American democracy in 2020. “The public interest strongly favors finality, counting every lawful voter’s vote, and not disenfranchising millions of Pennsylvania voters who voted by mail,” he wrote.
It got worse for Team Trump the next day, when the Pennsylvania Supreme Court rejected a GOP attempt to stop the certification. Then on Nov. 30, Arizona and Wisconsin officials certified the results of the election in both their states, exiting the House Trump Dumpster-fire clown car on more or less their own terms.
The best viral video of the election season may be the one of Arizona Gov. Doug Ducey, a Republican, sitting at a desk while literally in the act of certifying the election when President Trump calls at the same time. Watch for the moment when Ducey apparently sends Trump to voicemail.
If you’re keeping score at home, Team Trump’s loss of those two states meant that the Trump campaign is 1 for 40 on legal challenges to the election outcome, with the recount in Georgia apparently finished (Biden the winner again, despite the president’s invective against Brad Raffensperger, the state’s Republican secretary of state, for his role in certifying the results).
The likelihood of Trump overturning the election outcome with anything less than the repeal of base-10 mathematics is dropping to a low order of probability. So count on it: Any week now, the presidential simulacrum will resort to his IN CASE OF EMERGENCY BREAK GLASS salvation moment. With other options exhausted, Trump will solicit the sure thing of support in the U.S. Supreme Court.
But maybe not. See, Associate Justice Brett Kavanaugh, Trump’s most controversial high-court nominee, may have tipped his hand on his feelings about being a judicial pawn of the Trump White House. On Nov. 10, Kavanaugh, speaking on a completely different matter – the Affordable Care Act, Trump’s enduring bête noire and anathema to conservatives generally – said “[i]t does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding pre-existing conditions and the rest ...” Kavanaugh said in oral arguments for and against the ACA, also known as Obamacare.
Chief Justice John Roberts — another Republican appointee — apparently concurred with his colleague on the court, at the same oral-arguments hearing. Justice Roberts said: “I think it's hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that. But that's not our job.”
Kavanaugh’s and Roberts’ arguments apparently in support of the ACA seem to indicate a willingness to try to perform microsurgery on the Affordable Care Act, instead of the execution-by-lethal-injection of the entire law, which would adversely affect at least 20 million Americans and their families – a “remedy” Trump has, nevertheless, championed from before the start of his administration.
Opposition to the ACA is a fact of modern conservatism, low-hanging red meat for Republicans in general since 2010, and not easily abandoned. In the context of today’s zero-sum-game politics, support for even the basic structure of ACA runs counter to GOP orthodoxy, a pillar of Trump’s 2016 campaign.
But it’s bigger than the ACA. What obtains in matters about certain Republicans’ evolution on the ACA is becoming more widely true throughout the GOP’s current faux-autocratic ecosystem. Whether coming from a Republican appellate judge or a Republican Justice of the Supreme Court in Washington, these departures from the script, this refusal to sing what’s in the Trump hymnal indicate an independence of thought and a reliance on the institutions they lead, and the ideals those institutions represent.
These are the people Donald Trump might have predicted but couldn’t have prevented. In his narrow us/them view of the world, he overlooked those fellow Republicans who had the nerve to put the nation’s welfare over the party’s. He’s pretended they didn’t exist. They are not returning the favor.
With nothing more than the parliamentary exercise of congratulations, Republican Sens. Susan Collins of Maine, Mitt Romney of Utah and Pat Toomey of Pennsylvania announced a willingness to seek détente, to work with the Biden administration in a spirit of something resembling the bipartisan. They may or may not be outliers, but they are not alone. The numbers of Republicans comfortably bound by pragmatism rather than ideology have been steadily growing for many months, and in some cases, for years.
In September 2018, from inside the Trump White House, we heard the voice of “Anonymous” in a New York Times article, an early signal from the castle window about the horrors inside. Acerbic apostates such as veteran campaign gurus Rick Wilson, Mike Murphy and Steve Schmidt; McCain campaign strategist Stuart Stevens, former Illinois congressman Joe Walsh, former Maryland lieutenant governor Michael Steele, and conservative columnist George Will have more recently vacated the Republican church, at one level or another.
They and others are the brain trust of The Lincoln Project, a media initiative whose animating mission from the jump was the defeat and ouster of Donald Trump. The Lincoln Project distilled the shambolic character of House Trump into a still-growing series of spirited TV and online videos, by turns hilarious and harrowing, all of it reflecting a savvy about message and media in the digital era, and done with the power of the best of muckraker journalism.
It’s a hopeful thing that Republicans are thus willing to get out of line, to reach for activism in a bid to reawaken civility and compromise in our government. To get our government to start acting like a government again.
‘Institutionalists’ might be an inside-the-Beltway word to describe them, but we’re witnessing the slow quiet rise of Republican citizens whose allegiance is becoming more properly, widely aligned —some, at least, are becoming believers again, in a process instead of a personality, a system instead of a savior.