Just when you thought you had a handle on the Miers nomination, a document emerged today from her thin dossier that could change the dynamics dramatically. Senate sources released material from a routine questionnaire answered by the nominee, disclosing that as a candidate for Dallas City Council in 1989, Miers informed the local branch of Phyllis Schlafly’s Eagle Forum that she supported the so-called Human Life Amendment, a constitutional amendment that would endow human embryos with the full protections of “personhood” accorded by every other provision of the constitution, from the moment of conception. The White House quickly issued a statement downplaying the disclosure: “A candidate taking a political position in the course of a campaign is different from the role of a judge making a ruling in the judicial process.” Well, yeah, sorta kinda, but not really, and so what? Yes, it’s theoretically possible to believe that Roe v. Wade is a settled judicial precedent that should be, and can only be, reversed by a constitutional amendment. But let’s remember what the Human Life Amendment (in its most common iterations) was designed to do: not simply reverse Roe and return the subject of abortion to the states and to Congress, but instead to permanently ban any federal or state legislation permitting abortion at any stage of pregnancy after conception (with the sole exception of conditions threatening the life of the mother). Arguably, the Human Life Amendment would create a constitutional challenge to laws allowing the dispensation of contraceptives that prevent implantation of a fertilized ovum in the uterine wall. It would definitely lead to a judicially-enforced ban on the widespread practice of embryo destruction by IV fertility clinics, not to mention embryonic stem cell research. In other words, support for the Human Life Amendment is the most extreme position imaginable on abortion, and one which–precisely because it reflects the belief that the courts should define the word “person” as contained in the Equal Protection Clause of the 14th Amendment as including embryos–is based on an implicit injunction to the most radical form of judicial activism. Indeed, for all the whining about judicial usurpation of legislative prerogatives that’s become so common on the Cultural Right, it’s this–a judicial reading of the anti-abortion movement’s interpretation of the word “person” right into the Constitution–that has long been their ultimate fantasy, abandoned for tactical reasons in favor of the current drive to undermine and then reverse Roe. Who knows, maybe Miers was just checking a conservative box on that Eagle Forum questionnaire, and maybe she didn’t and doesn’t embrace a radical interpretation of what it means in the U.S. Constitution to be a “person.” But aside from its political ramifications, this disclosure means her inquisitors in the Senate Judiciary Committee should not be satisfied with questioning her about the constitutional underpinnings of Roe, such as Griswold and the right to privacy. A belief in fetal “personhood” as a constitutional doctrine trumps all those issues. And unless Miers and her defenders come up with a better explanation than “that was then, this is now,” it could introduce a whole new dimension in a confirmation debate where her lack of qualifications, and her evangelical Christian identity, have been the only issues.
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By Ed Kilgore
After absorbing a lot of Democratic gloom-and-doom about the midterms, I offered some silver lining at New York:
The 2022 midterms don’t look great for Democrats, who will try to buck history by hanging on to super-slim congressional majorities. Thanks to the particular lay of the land, Democrats have a decent chance of maintaining control of the Senate. But the House? Not so much: The two times since the New Deal when the president’s party won net House seats in a midterm (1998 and 2002), the president in question had sky-high job-approval ratings. Even if you believe Joe Biden’s plunge in popularity has been stemmed or even turned around a bit, he’s not going to have 60 percent-plus approval in November 2022 unless really crazy things happen. There’s just too much partisan polarization for that these days.
Thankfully for Democrats, even if they lose their congressional majorities next year, Biden himself won’t be an underdog for reelection in 2024. After all, the last two Democratic presidents were reelected after historically terrible midterms. Democrats lost 54 U.S. House seats in 1994 and 63 in 2010. Yes, they had bigger majorities going into those elections than Democrats have now. But they lost the national House popular vote by an identical 6.8 percent in both midterms, which is pretty bad, particularly since Democrats suffer from a voter-inefficiency problem in House elections (too many voters concentrated in too few districts).
It’s possible for a president’s party to lose a midterm so badly that bouncing back in the next cycle is all but impossible. Consider the man whose unique comeback accomplishment Donald Trump will be emulating if he runs in 2024, Grover Cleveland. The president Cleveland defeated in an 1892 rematch, Benjamin Harrison, was a Republican whose party lost an incredible 93 House seats in the 1890 midterms. This, mind you, was at a time when the House had only 332 members, which means the GOP lost over half their caucus in one cycle (an even worse percentage than in 1894, when Democrats lost a record 125 House seats during the midterm after Cleveland’s comeback triumph). In this era of polarization, nothing like that is going to happen to Democrats in 2022.
Looking more broadly at the power of incumbency, there have been 13 sitting presidents since World War II who were on the general election ballot. Nine of them won. The four losers all faced special circumstances. Gerald Ford had not previously been elected to anything more than the U.S. House; he ascended to the vice-presidency and then the presidency when disgraced predecessors resigned, and he pardoned the president who appointed him, the especially disgraced Richard Nixon. Jimmy Carter was caught up in a historical realignment that he had held off four years earlier by carrying his native South, which then resumed a massive Republican trend. George H.W. Bush suffered from a terrible economy but then also a party split (third-party candidate Ross Perot won a lot of previously Republican voters). And we all know about Donald J. Trump, who was impeached twice and seemed determined to offend swing voters.
In retrospect, what’s most remarkable is that Ford and Trump very nearly got reelected despite their handicaps, exhibiting not the weakness but the strength of incumbency. And it’s with that perspective that any early handicapping of a potential 2024 rematch should be considered. Trump benefited from incumbency in 2020, as will Biden in 2024. So the idea that the 45th president has some built-in advantage over the 46th — absent the renewed election coup so many of us fear — doesn’t make a lot of sense.