As part of my continuing effort to identify the less obvious implications of Dobbs, I considered at New York the change in perceptions of Republicans supporting abortion bans might soon experience:

Until June 24, you heard occasional talk of former vice-president Mike Pence being awarded a Presidential Medal of Freedom by Joe Biden for his courage in rejecting Donald Trump’s pleas and demands that he overturn the 2020 election results on January 6, 2021. Obviously, the hearings of the House Select Committee investigating the events of January 6 reinforced a sense of gratitude toward Trump’s once-sycophantic veep, and the committee itself treated the Pence staffers who testified almost reverently.

Then the U.S. Supreme Court handed down Dobbs v. Jackson Women’s Health Organization, abolishing a federal constitutional right to abortion, and even before the words of Justice Samuel Alito’s majority opinion stopped echoing, Pence was telling Breitbart News how thrilled he was that women had lost the right to choose:

“Today, Life Won. By overturning Roe v. Wade, the Supreme Court of the United States has given the American people a new beginning for life, and I commend the justices in the majority for having the courage of their convictions,” Pence said in response to the 5-4 decision from the U.S. Supreme Court in the Dobbs v. Jackson Women’s Health Organization case.”

Pence treated this as just the starting point for the forced-birth cause:

“’Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.’”

And the former vice-president also wanted to make sure Breitbart readers didn’t view him as a Johnny-come-lately to the anti-abortion cause:

“Pence also released a video through his organization Advancing American Freedom, which he also provided to Breitbart News exclusively ahead of its public release. In the slightly-over-three-minutes-long video, a narrator shows Pence’s history fighting for life beginning long before he was even elected to Congress. It then details how Pence offered the first-ever bill to defund Planned Parenthood in Congress—and then later as Vice President of the United States cast the tie-breaking vote to make sure a plan that gave that right to states passed Congress.”

Does that take the shine off his January 6 heroism? Maybe just a little?

Now Pence was famously the very favorite politician of the Christian Right before he stumbled over anti-LGBTQ measures in Indiana and was then lifted into the highest levels of national politics by Trump in 2016. But consider another Republican who has gained a fanbase among liberals and the center left: House Select Committee vice-chair Liz Cheney. Last year, after she defied Trump over his election lies, she soon became more popular among Democrats than Republicans. And even before the January 6 hearings that have won her further admiration from Dems, New York Times columnist Thomas Friedman was encouraging Joe Biden to consider dumping Kamala Harris and running for reelection on a ticket with Cheney or someone like her. But in light of the thunderbolt that has struck American politics in the form of Dobbs, it is probably relevant that in the current Congress, Liz Cheney is a co-sponsor of legislation (HR 1011) endorsing an idea that even the conservative bloc on SCOTUS hasn’t endorsed: fetal personhood.

“Life at Conception Act

“This bill declares that the right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual comes into being.”

No, don’t think she’s going to be on any Democratic presidential ticket soon.

My point is not to minimize the good things some Republicans have done in some areas of public life. Standing up to Donald Trump is indeed important to the future of democracy, and for that matter, it’s important to the deeply endangered future of reproductive rights, since Trump is the president who produced Dobbs as part of a cynical deal he made with conservative Christians obsessed with outlawing abortion. But at the same time,
Dobbs should remind everyone there are nonnegotiable subjects in politics other than the events of January 6, and sadly, Republican officeholders are even more united in being wrong on abortion policy than they are in defending and revering the 45th president. It’s a matter of perspective and of priorities.

One realization in particular that must now come to the fore post-Dobbs involves the bad media habit of treating some Republicans as “moderate” on abortion policy because they are willing to show some compassion (or maybe just shame) on behalf the very small percentage of people needing abortion services because they are the victims of rape or incest. Now that it’s clear they have no problem with banning the other 98 percent of previously legal abortions, these “moderates” look like the anti-abortion zealots they’ve always really been.

You may object that in a dangerously polarized political environment, but the last thing we need is to shine a spotlight on one of those issues where D’s and R’s (at least among those holding or running for office) are on different planets. We should instead, I suppose, focus on celebrating every symbolic moment where even a shred of bipartisanship can be found, whether it’s a big infrastructure bill, a small tweak in federal gun policies, or the willingness of a few Republicans to own up to Trump’s crimes. But it’s far past time to understand that polarization is not always some sort of artificial phenomenon foisted on an a peace-loving electorate by politicians and other “elites.” It’s sometimes the product of deep differences of opinion on matters that affect the lives of real people. That’s definitely true of abortion policy. And now that lawmakers are in the position to respect or oppress the reproductive autonomy of women in ways that have consequences, it’s actively offensive to shrug and look the other way.

As part of the continuing discussion about the impact of the Supreme Court’s Dobbs decision, I warned at New York that the pressure to ban abortion will only intensify:

The U.S. Supreme Court’s decision to eliminate the right to an abortion in Dobbs v. Jackson Women’s Health Organization was the culmination of the Republican Party’s long and powerful partnership with the anti-abortion movement. This is key to understanding the potential impact of the Court’s ruling; now, that alliance will likely drive even more extreme efforts to eliminate abortion access across the country. For the anti-abortion movement, overturning Roe v. Wade was a starter’s gun, not the finish line.

Prior to 1973, Republicans were about as likely as Democrats to support the decriminalization of abortion. But within three years of the Roe v. Wade decision, both leading candidates for the GOP presidential nomination favored a constitutional amendment overturning Roe. There were a lot of reasons for this sudden change of direction, including the GOP’s effort to win over previously Democratic southern conservatives and Catholic voters, and the emergence of abortion bans as a top priority of conservative evangelical leaders. After 1980, the die was cast; while pro-choice politicians and voters lingered in the GOP for some time, the Republican Party as a whole never wavered from its anti-abortion stance.

Yet for decades, the GOP couldn’t deliver. By the time the profoundly irreligious and previously pro-choice Donald Trump won the GOP presidential nomination, simmering resentment toward Republicans for failing to produce a reversal of Roe was close to boiling over; the marriage between party and movement had become loveless. So in a great irony, the unprincipled Trump made a straight transactional offer to get ’er done if the anti-abortion movement supported his candidacy. They took the deal.

As Trump’s Supreme Court appointments cleared the path for the reversal of Roe, GOP governors and state legislators went into an anticipatory frenzy. Twenty-six states passed abortion bans with provisions violating Roe and Planned Parenthood v. Casey, ranging from laws hassling providers to pre-viability abortion bans, like the 15-week Mississippi standard that led to Dobbs. When the ruling came down on Friday, 13 states had “trigger” laws designed to take effect the minute Roe died.

For decades, Republican politics have been about working with anti-abortion constituencies to set the table for the end of abortion rights in America, but now GOP politicians face a very different situation. As far as what they’ll do next, here are three things to keep in mind.

Republicans leaders will now face even more pressure to enact extreme abortion bans.

You might think that having won this huge victory in the Supreme Court, Republican anti-abortion activists would give it a rest for a bit. But that isn’t happening.

Having been invited by the Supreme Court to set abortion policy without any inhibitions, the true goal of the anti-abortion movement — a ban on all abortions from the moment of conception, with few if any exceptions — will become an immediate priority for Republican lawmakers. Where there are 15-week bans like Mississippi’s, six-week bans like Georgia’s will likely emerge. Where there are six-week bans, total bans from conception like Louisiana’s and Oklahoma’s will be pursued and likely enacted. Rape and incest exceptions will be challenged. The pressure on GOP lawmakers to grow more radical will go up, not down. This isn’t a political game anymore. Republican lawmakers have been handed the power to force every pregnancy to full term, and their most powerful religious constituencies expect them to use it.

GOP tactics will become more radical.

For most anti-abortion activists and their Republican vassals, overturning Roe was never anything more than an interim step toward a total abortion ban. Now they can publicly advance more audacious goals and impose new litmus tests on GOP politicians.

The states-rights and pro-democracy rhetoric that anti-abortion activists routinely deployed to challenge what they deemed federal judicial tyranny over abortion policy will instantly vanish. Republican elected officials and candidates will begin calling for a national abortion ban by congressional statute. It won’t happen so long as there is either a Democratic president or a Senate filibuster, but Republicans with aspirations for high office will line up to pledge to make it happen someday. Mike Pence took the vow minutes after Dobbs was announced:

“Now that Roe v. Wade has been consigned to the ash heap of history, a new arena in the cause of life has emerged, and it is incumbent on all who cherish the sanctity of life to resolve that we will take the defense of the unborn and the support for women in crisis pregnancy centers to every state in America,” Pence told Breitbart News. “Having been given this second chance for Life, we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.”

Meanwhile, at the state level, Republicans will do whatever they can to interfere with actions by citizens in blue states to aid people in red states. Even though Justice Brett Kavanaugh warned in his Dobbs concurrence that bans on travel to secure an abortion would represent an unconstitutional restriction on interstate commerce, that won’t keep those determined to “save all the babies” from trying to do so by hook or crook.

Most of all, you will hear more and more talk about the goal the GOP first formally embraced in its 1980 platform: an effort to convince the Supreme Court to recognize fetal personhood as a constitutional right, or to pass a fetal personhood constitutional amendment in Congress.

Anti-abortion fervor could shift the GOP’s election strategy.

Ice-cold Republican tacticians looking no further than the 2022 midterm elections or the next presidential contest will welcome the new climate as a base-energizing tonic for the troops. After all, the GOP kept its promises to its culture-war wing, and there will be much MAGA/Christian right excitement about acting on the new freedom to impose forced birth. State legislative and gubernatorial elections in November and beyond are going to be lit.

But as it happens, Republicans were already cruising toward major midterm gains thanks to economic worries, Democratic discouragement, the GOP turnout advantage in non-presidential elections, and the historical pattern of midterm losses by the party controlling the White House. All things considered, they want voters to go to the polls thinking about inflation, not abortion; about their grievances with Joe Biden, not their grievances with Samuel Alito.

Democrats have been thinking that Roe’s demise could change the dynamics of the midterms by encouraging high turnout from young voters and suburban women and giving Democratic voters something to feel more passionate about than a bipartisan infrastructure bill. Many Republicans may fear that outcome too, but they are in no position to tell their own base to stop thinking about abortion policy, which in turn means GOP candidates won’t stop talking about it. And that could complicate the anticipated GOP midterm victory, while also changing the landscape going into 2024. Potential Republican presidential candidates could go into a competitive frenzy of anti-abortion extremism, and that’s exactly what Democrats need to hang onto swing voters.

In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:

While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.

When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:

“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”

Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.

In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.

Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:

“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”

Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:

“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …

“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …

“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”

One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.

As a California voter, I am acutely aware of the state’s very deliberate process for counting votes, and wrote about the latest lesson from June 7 at New York:

Anyone engaged in politics in a state with heavy voting by mail knows that making pronouncements based on early returns is perilous. The danger of rushes to judgment is especially dire in California, which allows mail ballots postmarked by Election Day but received in the next week to count, permits Election Day registration, and goes the extra mile to help voters cure minor errors on their mail ballot. As CalMatters put it in 2020, “the state opts to make it very easy for Californians to vote” and prioritizes voter convenience over the speed or efficiency of vote-counting. There have been many recent elections in the Golden State where the winners on Election Night have turned into losers before very long.

This was all well known prior to the 2022 California top-two primary on June 7. Yet early returns fed a narrative of a conservative law-and-order revolt against the Golden State’s dominant progressives. Newsweek’s take was typical:

“Democratic voters in California took their frustrations to the ballot box on Tuesday, boosting a former Republican in Los Angeles’ mayoral race and removing one of the nation’s most progressive district attorneys from office in an urban revolt …

“What’s happening in the L.A. mayor’s race and in the San Fransisco district attorney race is ‘consistent with the trend we are seeing nationally: that voters feel that the Democratic Party has moved too far left and want elected officials to shift back towards the center,’ Democratic pollster Carly Cooperman told Newsweek.”

Rick Caruso’s early lead in the L.A. mayoral race and what appeared initially to be a three-to-two victory for the effort to recall San Francisco district attorney Chesa Boudin were wildly overinterpreted, as I pointed out at the time:

“The idea that the primary showed a state convulsed with reactionary tough-on-crime sentiment is an overreaction to what actually happened on June 7. Boudin was happily tossed over the side by much of San Francisco’s Democratic political establishment — who regarded him as an embarrassing and not terribly competent outlier, not a national symbol of criminal-justice reform (as some have treated him). And while Caruso’s emergence as a freshly minted Democrat running a viable race for mayor of L.A. was startling, it took a ten-to-one spending advantage over Karen Bass to make the general election. His best shot at winning may have passed in this low-turnout primary; Bass should be favored to win in November.”

Now, late-arriving results in the primary have made the law-and-order takes not just premature but possibly wrong, as the Los Angeles Times explained:

“[I]n the two weeks since California’s primary, some key races across the state have reshuffled or tightened — turning upside-down some of the early punditry about the message Golden State voters are sending this cycle …

“In L.A.’s mayoral race, Caruso, a billionaire developer who ran on a platform of expanding the city’s police force and clearing homeless encampments, celebrated with confetti on election night as he held a five-percentage-point lead over U.S. Rep. Karen Bass (D-Los Angeles), whom he will face in the November runoff.

“But two weeks later, he finds himself trailing Bass by seven points.”

I’d say Caruso is a distinct underdog for November.

Boudin was indeed recalled, but the margin of yea-over-nay votes has dropped from 20 percent to 10 percent, and may drop further. And meanwhile, other contests already contradicted the swing-to-the-right narrative on Election Night, as I noted:

“Appointed incumbent attorney general Rob Bonta should have been a prime target for tough-on-crime agitation. As The Appeal noted: ‘Bonta’s record on criminal justice reform, and his ties to groups doing the frontline work to transform prisons and policing, are stronger than either [Xavier] Becerra or [Kamala] Harris,’ his two predecessors. (The former is Joe Biden’s Health and Human Services secretary; the latter is his vice-president.) As a novice statewide candidate, Bonta could have been especially vulnerable, but in a primary against four opponents, he has received almost 55 percent of counted votes — a higher percentage than U.S. senator Alex Padilla and a bit below that of Governor Gavin Newsom.”

Bonta’s lead is exactly where it was on the evening of June 7.

The moral of the story is to resist the temptation to make broad generalizations about California election results until enough of them are in to justify such conclusions. Let’s hope the lesson sinks in by November.

I am not generally a fan of too-clever-by-half, much less deceptive, political tactics, so having seen one gain ground, I offered a warning at New York.

What was once a rare and controversial tactic — meddling in the other party’s primaries to boost extremist candidates that seem most beatable in a general election — is in 2022 becoming almost routine, particularly for Democrats. It happened in Pennsylvania, where prior to the May primary Democratic gubernatorial candidate Josh Shapiro spent more money on ads about ultra-MAGA Republican Doug Mastriano than Mastriano spent on ads about himself. The ads called him “too conservative for Pennsylvania,” which was cleverly intended to convince conservative Republican primary voters that he was just right for them. The gambit likely helped Trump’s endorsee win the GOP nomination.

In the June 7 California primary, Democrats pulled the same sort of stunts in order to help two right-wing rivals to Republican incumbent congressmen David Valadao and Young Kim. One, from Nancy Pelosi’s House Majority PAC, just blatantly promoted Valadao opponent Chris Mathys. Another, from Democratic candidate Asif Mahmood, raised the visibility of Kim opponent Greg Raths. The idea in both cases was to knock the incumbents out of the general election via a third-place finish in the nonpartisan top-two primary. Kim moved on to November anyway, and Valadao is leading Mathys with a lot of votes still out.

The help-the-kooks strategy is also in full swing in Colorado. In the June 28 GOP primary to select an opponent for potentially vulnerable Democratic senator Michael Bennet, the big ad spender is a group called Democratic Colorado, which is telling voters that election-conspiracy champion Ron Hanks is “too conservative for Colorado,” carefully laying out his issue positions in a way that lines up with Republican rank-and-file sentiment. Similarly, in the primary aimed at choosing a nominee to face Democratic governor Jared Polis, Democrats are spending serious dough to help another ultra-MAGA Republican, Greg Lopez, as Cook Political Report’s Jessica Taylor explains:

“The Colorado Information Network, funded partly by the Democratic Governors Association, has spent or reserved more than $1.5 million on broadcast and cable. One recent ad from the liberal group points out Lopez’s support for Trump and his election lies, opposition to gay marriage and abortion. ‘Greg Lopez is too conservative for Colorado,’ the ad ends — a clear effort to appeal to base conservative voters, which both parties have done before in primaries to boost a weaker potential nominee.”

Republicans cannot really duplicate this strategy at present, in part because there are fewer ideologically polarized Democratic primaries this year, and in part because Democratic voters won’t necessarily rise to the bait. Precisely because the Democratic rank and file are not extremist, attacking a weak Democrat as “too socialist” for this or that jurisdiction won’t necessarily lift them to victory; it might have the opposite effect.

But Democrats trying to nominate Republican extremists really need to ask themselves if they’re helping elect extremists in ways that may be enduringly bad for the country. For one thing, calculations about the electability of this or that opposite-party candidate could turn out to be fatally wrong. In 2016, as my colleague Gabriel Debenedetti explained, Hillary Clinton’s campaign did everything it could to promote Donald Trump’s candidacy early on, when he mostly looked like an irritant to the more electable Jeb Bush and Marco Rubio. Team Clinton couldn’t really fix on a strategy for beating Trump until it was too late. You have to wonder if Democrats looking at polls showing Doug Mastriano running ahead of Senate nominee Mehmet Oz on the Republican ticket in Pennsylvania are having some second thoughts about helping Mastriano win his primary.

Aside from the possibility that 2022 could be a good year for crypto-fascism, there’s another big moral hazard in any Democratic strategy to lift Republican extremists onto the general election ballot: This could be a big-wave election in which anyone bearing the elephant label in a remotely competitive contest will win, kookiness be damned. In that event the net result of Democratic tampering in Republican primaries would be a kookier group of people running America.

Wave elections can be like a large net thrown into the sea, collecting fish of every kind. I learned that a half-century ago as a Democratic precinct chairman in suburban DeKalb County, Georgia, then trending hard Republican in a year when Richard Nixon was routing George McGovern nearly everywhere. Nixon carried DeKalb by a 77-23 margin, and pulled into local office a whole zoo of outlandish and unqualified candidates for judgeships and other positions requiring a bit of brains and experience. It took DeKalb years to get rid of some of those people. And that was back when people split tickets. That’s not much of a thing anymore.

So maybe helping ultra-MAGA extremists win Republican nominations marginally increases the odds Democrats can minimize GOP gains this November. But it also significantly increases the odds that if everything goes wrong the Republicans placed in power will be bad people with bad ideas. It’s not worth the risk.

After watching the first three days of the House Select Committee investigating the events of January 6, I reached a conclusion about where the committee is heading, and shared it at New York:

The third day of hearings by the House select committee investigating January 6 focused on the backstory of Donald Trump’s very public effort to coerce then-Vice-President Mike Pence into stopping the certification of Joe Biden’s election during a joint session of Congress. Witnesses (most critically, former Pence counsel Greg Jacob) made it abundantly clear there was no real support in legal circles within or beyond the White House for the scheme cooked up by Trump campaign attorney John Eastman whereby Pence was expected to either reject Biden electors or suspend the process of counting them in order to give Republican legislators time to flip the election.

In a carefully reconstructed ticktock of discussions involving Trump, Pence, legal advisers to both men, and Eastman, the committee sought to allay any significant doubts that virtually everyone other than Eastman thought his claim of vast vice-presidential powers over the certification of electors was nuts. Indeed, Jacob, who was most directly involved in conversations with Eastman, indicated that Eastman repeatedly betrayed his own lack of faith in his outlandish claims about the veep’s breathtaking 12th Amendment powers. But Eastman and his boss continued to pressure Pence to violate the law and abandon his own clearly stated position right up to the fraught hours on January 6, 2021, when Trump allegedly told Pence in a phone call that he was a “wimp,” then informed a crowd of soon-to-be rioters that Pence had to stop the Biden certification.

Jacobs’s account was strengthened by taped testimony concerning Trump’s other legal advisers, as Above the Law’s Joe Patrice noted when the hearing concluded:

“White House Counsel Pat Cipollone thought it was wrong according to testimony. Eric Herschmann said he told Eastman that it didn’t make any sense beforehand and, according to Herschmann, Eastman concluded that it probably would be a loser at the Supreme Court. Herschmann even testified that he told Eastman before January 6 that “you’re going to cause riots in the streets.” Certainly that also crossed the mind of other lawyers in the building.”

Even Rudy Giuliani, Trump’s personal attorney, thought it was a bad idea (though he reversed himself in the excitement of January 6 itself). And just to emphasize the point that Eastman’s theory had no respectable support, conservative legal titan J. Michael Luttig was brought in to denounce it as antithetical to the Constitution and democracy and to warn that Republicans might try the same play again in 2024.

The committee went on to describe how Trump’s rage at Pence put the lives of the veep (and presumably many members of Congress) in danger when the insurrectionists stormed the Capitol to stop the Biden certification since Pence didn’t “do his duty.” That provided some gripping images, but the real point of the hearing became plain when Representative Pete Aguilar, who directed much of today’s proceedings, quoted from a March 2022 ruling by California federal judge David Carter, who was reviewing Eastman’s claims that his subpoenaed communications with Trump were privileged. Here is the pertinent language, as I described it at the time:

“Until this week, no one in the U.S. judicial system had officially suggested the 45th president might have committed a crime. Now California federal district court judge David Carter (a Clinton appointee) has ruled that Trump ‘more likely than not … corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,’ and that Trump and his attorney John Eastman ‘more likely than not … dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.’”

All the evidence in today’s hearing reinforced this potentially explosive conclusion: A rogue lawyer and his rogue client cooked up a ridiculous justification for an illegal action that risked lives and endangered democracy itself. Much of the evidence incriminated Eastman, who took the Fifth Amendment 100 times when forced to testify before the committee and had tried to secure a pardon from Trump. A telling exchange between Eastman and Jacob occurred when the latter asked the former via email, as the Capitol riot raged, whether he had finally advised Trump “that in your professional judgment the vice president DOES NOT have the power to decide things unilaterally.” Eastman replied, of Trump, “You know him — once he gets something in his head, it is hard to get him to change course.”

The lawyer and client were a match made in hell. And now they may both be in actual danger of legal consequences, or so the January 6 committee seems to believe. But that will presumably be up to Attorney General Merrick Garland, whose department will have to make the call on potential prosecutions coming out of these hearings.

As the country refocuses on the horrific events of January 6, 2021, there’s renewed talk, but little real perspective, about Mike Pence’s refusal to overturn the 2020 election results. I tried to offer some at New York:

I am really glad, even grateful, that then–Vice-President Mike Pence didn’t obey Donald Trump’s order to use imaginary vice-presidential powers to stop the confirmation of Joe Biden’s election on January 6, 2021. He was under a lot of pressure to do so from the Boss, whose other plays to stay in power had failed by then. The more we understand about what was happening that day, the clearer it is that everything else Trump did depended on Pence playing his assigned role. There were never enough votes in the Democratic-controlled Congress to overturn the recognition of Biden electors. And the mob Trump incited to attack the Capitol could not have done anything other than delay the inevitable for a day or two (or, as it happened, a few hours). So yes, Pence’s refusal to take a blatantly unconstitutional and perhaps even treasonous action mattered a great deal.

But let’s not get carried away. As the House committee investigating January 6 prepares to launch public hearings, Jonathan V. Last (whom I greatly esteem) suggested in The Atlantic that Democrats could take away some of the partisan atmospherics of their inquiry by showing some serious love to Pence. And he means serious love:

“Congress can name a building in his honor. The House and Senate could propose nonpartisan resolutions recognizing Pence for his service to democracy. And then Joe Biden could give Pence the Presidential Medal of Freedom. Because while Pence may not be the hero you or I might have wanted, he was the hero America needed.”

Last’s basic argument is that if someone more subservient to Trump (if that’s possible) had been in Pence’s position, then … well, “it’s not clear what would have happened next,” as he puts it. I respect Last for acknowledging it’s not at all likely that the Pence-led coup Trump demanded would have worked. Had Pence tried to recognize fake Trump electors, he would almost certainly have been overruled by Congress. If he had instead abruptly adjourned the January 6 joint session to (as Trump kept putting it) “send it back to the states” … again, where would this have led? Congress could have called itself back into a joint session to do its job with or without Pence’s consent, and the machinery wasn’t in place for Trump to get the electors he needed from Republican legislators. The courts would have almost certainly intervened, and had Trump just refused to leave the White House on January 20 when it was time for Biden to take office, I think military intervention would have been a real possibility. So while Pence’s refusal to act might have saved the Republic from a crisis even worse than the one we experienced on January 6, let’s not credit him for saving the Constitution on his own. There were other protections in place had Pence played the toady.

Last also stresses Pence’s personal courage on January 6, and maybe he has a point. It’s true that some members of the mob looked at Pence as a traitor and might have done him harm if given the opportunity, as they threatened with their “Hang Mike Pence” chant. I’m in no position to judge whether the VP really was in danger that day; perhaps the January 6 committee will cast more light on that.

But didn’t Pence show great courage in defying Trump to begin with? Well, that’s less clear. It seems everyone he consulted while he wavered (and he clearly wavered), including former Republican vice-president Dan Quayle and greatly respected conservative legal scholar J. Michael Luttig, told him that of course he had no authority, constitutional or statutory, to do what Trump was asking. The only person telling Pence he did have the authority was Trump’s attorney John Eastman, whose specious arguments would have probably gotten him bounced from a basic constitutional-law course. Indeed, you have to ask yourself whether Eastman would have made this plea to anyone with less than Pence’s long record of intensely, almost religiously obsequious conduct toward Trump. So the veep’s own craven history led to the order he so bravely denied, which means he would come to any Presidential Medal of Freedom award with unclean hands.

It’s also relevant that Pence’s revolt against Trump was and remains extremely limited, as I noted when he got a lot of praise for tough talk about the “un-American” nature of Trump’s demands of him on January 6:

“Pence has a strong natural interest in limiting congressional or media scrutiny to the isolated events of January 6. Did he ever disagree publicly or privately with the foundation for an election coup that Trump laid for months and months by attacking voting by mail and claiming his ticket could lose only if the election were rigged? Did he remonstrate with Trump when he claimed an immensely premature victory on Election Night? Did he dissent from the strategy of frantically asserted and entirely bogus fraud charges by the campaign bearing his own name as well as Trump’s? Did he object to the self-certification of victory by fake Trump-Pence electors in December 2020? Indeed, did Pence do anything to get in the way of the attempted theft of the election until Trump called on him to accomplish it in a clearly unconstitutional coup with the whole world watching?

“If so, we haven’t heard about it.”

Last’s underlying pitch is that Democrats should be trying harder to separate Republican voters who don’t accept Trump’s authoritarian ways from the GOP he still dominates. That makes sense. Is Pence their role model? I certainly hope not since he never repudiated many of the terrible policies the Trump-Pence administration promoted. And as Ross Barkan recently argued, Pence may be a greater threat than Trump going forward, given his rich history of atavistic cultural and economic positions married to the Hoosier respectability that supposedly saved him and his country from perdition on January 6.

I’ll say it again: Thanks, Mike. I’m glad that, like most Americans, you managed to do your job without (on at least one fateful day) undermining its very purpose. We’re the better for it. But you don’t get a medal for refusing to lead a coup d’etat, and I hope you’ll have a few thousand more second thoughts about the president you served so fervently before applying for the same job yourself.

Having read some insta-reactions to the June 7 California primary that treated it as some sort of massive validation of right-wing law-and-order politics, I pushed back at New York:

The big headlines from yesterday’s California primary were unsurprisingly driven by high-profile contests in the state’s two most prominent cities — San Francisco and Los Angeles. And the results, with the recall of the highly conspicuous progressive district attorney Chesa Boudin in San Francisco and strong showing by ex-Republican developer Rick Caruso in the L.A. mayoral race, lent themselves to a law-and-order narrative — with an undertone of panic among progressives that the GOP wave expected to convulse the nation in November might extend even into deep-blue California.

Democrats don’t need to panic just yet; turnout in the primary was too low to sustain any excited interpretations. We won’t know the final numbers for a good while in a state that’s careful to count every vote (California allows mail-in ballots postmarked by Election Day to count if received within seven days and has generous procedures for “curing” faulty ballots). But with ballots received now at 19 percent of registered voters, the Golden State could challenge the record-low primary turnout of 25 percent in 2014. While low primary turnout is normally a danger sign for Democrats (and may be this year as well), it could just reflect a year when there were no red-hot statewide contests — a dampening effect compounded by the sense that California’s top-two primary system makes the first contest a dry run with few real winners and losers.

The idea that the primary showed a state convulsed with reactionary tough-on-crime sentiment is an overreaction to what actually happened on June 7. Boudin was happily tossed over the side by much of San Francisco’s Democratic political establishment — who regarded him as an embarrassing and not terribly competent outlier, not a national symbol of criminal-justice reform (as some have treated him). And while Caruso’s emergence as a freshly minted Democrat running a viable race for mayor of L.A. was startling, it took a ten-to-one spending advantage over Karen Bass to make the general election. His best shot at winning may have passed in this low-turnout primary; Bass should be favored to win in November.

In addition, there were statewide races that didn’t confirm the “law-and-order spring” hypothesis. Appointed incumbent attorney general Rob Bonta should have been a prime target for tough-on-crime agitation. As The Appeal noted: “Bonta’s record on criminal justice reform, and his ties to groups doing the frontline work to transform prisons and policing, are stronger than either [Xavier] Becerra or [Kamala] Harris,” his two predecessors. (The former is Joe Biden’s Health and Human Services secretary; the latter is his vice-president.) As a novice statewide candidate, Bonta could have been especially vulnerable, but in a primary against four opponents, he has received almost 55 percent of counted votes — a higher percentage than U.S. senator Alex Padilla and a bit below that of Governor Gavin Newsom. Bonta’s most conspicuous tough-on-crime opponent, Sacramento district attorney Anne Marie Schubert (running as an independent after ditching her Republican affiliation as impolitic), tried hard to tie Bonta to Boudin and his L.A. counterpart, George Gascón. Schubert was endorsed by several major law-enforcement organizations and a majority of her fellow county prosecutors, but she finished a poor fourth and is currently running 47 points behind Bonta — who will face one of two not terribly impressive actual Republicans in November.

In general, the overall California returns belie the idea that it was some sort of conservative-backlash election. The top-performing statewide Republican candidate, Lanhee Chen (known nationally as chief policy adviser to Mitt Romney in his 2008 and 2012 presidential campaigns), made the general-election contest for state controller. But he did well mostly because he faced four viable Democrats and, at present, is only winning 37 percent of the vote. Chen has distanced himself from his national party and is running on a claim that California needs a non-Democrat in this position to avoid fiscal recklessness by the dominant party. He remains a long shot, at best, to break the GOP’s 16-year losing streak in California statewide elections.

At the congressional level, there’s no sign of an anti-Democratic wave so far. Candidates from both parties expected to make the general election have done so. Probably the weakest performances by incumbents were posted by Republicans David Valadao and Young Kim, who are both struggling a bit to put away challengers running to their right.

It’s a long way until November, and there are many dynamics that will shape the outcome — from inflation rates to gun-violence incidents, the Supreme Court’s decision on abortion rights, and efforts by Donald Trump to steal the spotlight. But California Democrats weathered Republican midterm waves in 2010 and 2014 quite well. And while California voters are expressing concerns about crime and (more prominently) homelessness and housing policy that may hurt some Democratic incumbents, talk of a law-and-order tsunami in the Golden State is premature. Like their colleagues everywhere, California Democrats should most urgently focus on getting their voters to the polls.

Public opinion on abortion hasn’t really changed much since the 1970s. But that could be about to change as I explained at New York:

There are some “culture war” issues, notably involving LGBTQ+ rights, in which public opinion shows really sharp generational divisions. To put it bluntly, homophobia appears largely to be a geriatric illness, born of inadequate experience with real live LGBTQ+ people and rigid views of acceptable conduct. Even among conservative Evangelical youth, hostility toward marriage equality has ebbed.

But until recently, there have been few persistent generational divisions on abortion rights. As Gallup noted in 2010, older and younger generations steadily converged in their views on legal access to abortion in the early years of this century. And the millennial generation has confounded expectations that it would lead a liberalizing trend on abortion like it has on same-sex marriage, as Daniel Cox explains at FiveThirtyEight:

“Over the past decade, one of the most confounding trends in public opinion has been why millennials (those born between 1981 and 1996) who are less religious, more educated and more liberal than previous generations — are not stronger supporters of abortion rights. Polls have generally shown that millennials express considerable ambivalence about abortion, views that do not distinguish them from the broader public.

Millennials’ attitudes on abortion rights stand in stark relief to the way they tend to approach other issues of sex and sexuality. For instance, they were among the strongest proponents of legalizing same-sex marriage at the height of debate in the mid-2000s, and they have generally liberal views on contraception, sex education and premarital sex. Abortion has always been the exception.”

As the steadily increasing fragility of abortion rights has raised the issue’s visibility in recent years, Generation Z (those born in or after 1997) looks likely to break the mold and lead a backlash to the impending revocation of a constitutional right to abortion by the U.S. Supreme Court. A new Pew survey released in May showed that 74 percent of adults ages 18 to 29 believe abortion should generally be legal, and that includes 30 percent who say it should be legal in all cases without exception. That’s a 12-point jump from the percentage of adults ages 30 to 49 taking the “generally legal” position and the difference between a solid majority and a supermajority.

This generational trend could solidify the anti-abortion movement’s isolation as an ideological group that is only dominant among white Evangelicals (who oppose legal abortion by a 74-24 margin, according to the same Pew survey). Pew shows Catholics now favoring legal abortion by a 56-42 margin (in sharp contrast to the largely monolithic official position of the Catholic Church in opposing legal abortion). Non-Evangelical white Protestants favor legal abortion by a 60-38 margin, and Black Protestants take the same position by a 66-28 margin. And among the religiously unaffiliated (an increasingly large group in both the millennial and Gen-Z cohorts), support for legal abortion soars to 84 percent.

According to Cox, there is an emerging gender gap in the overall ideological positioning of Gen Z that is less apparent in older generations:

“An analysis of Gallup surveys over the past decade conducted by the American Enterprise Institute’s Survey Center on American Life, which I lead, found a critical shift in political identity among young women. In 2021, we found that 44 percent of 18- to 29-year-old women identified as liberal, whereas only 30 percent of 18- to 29-year-old women identified as such a decade earlier. Among men in this age group, the share who identified as liberal was essentially unchanged during the same time period.”

In any event, the national divide over abortion isn’t as immutable as it has often seemed.  If the Supreme Court is indeed going to relegate abortion policy to the political realm to be fought out state by state in hand-to-hand legislative and electoral combat, there are some grounds for optimism about what might happen down the road.

Was kind of amused at the latest blame game being directed to Democrats after the May 24 Georgia primary, so I wrote about it at New York:

Donald Trump isn’t known for owning up to his mistakes. So it’s natural that in the wake of the setbacks his 2022 Republican-primary endorsement program experienced in Georgia on May 24, the once-and-would-be-future president is looking for excuses. The most tempting to him surely involves blaming his candidates — particularly the feckless gubernatorial aspirant David Perdue and the even more feckless secretary of State challenger Jody Hice, who lost to Trump enemies Brian Kemp and Brad Raffensperger, respectively. But then that would reflect poorly on Trump’s own judgment in hand-picking them to begin with, wouldn’t it?

The website for Trump’s official statements has only one allusion to the Georgia fiasco: an “ICYMI” link to a deranged bit of MAGA conspiracy-mongering basically claiming that only fraud can explain a Trump defeat this severe. But at his Wyoming rally over the weekend, Trump “denounced crossover voting in Georgia, where all voters can choose which primary they want to vote in, by Democrats who opposed Perdue and Hice,” noted the Washington Post. Trump might have been engaging in a little preemptive spinning as well, since the candidate he is trying to purge in Wyoming, Congresswoman Liz Cheney, is openly seeking to pull Democrats and independents into her August 16 primary.

The 45th president isn’t the only one attracting attention to the participation of Democrats in the Georgia Republican primary; it received some serious buzz among election analysts with no particular stake in the outcome. In mid-May, the Atlanta Journal-Constitution estimated that about 7 percent of early voters in the GOP primary were Democratic primary voters in 2020. And after the voting was done, the Associated Press suggested around 9 percent of 2022 Republican-primary early voters in Georgia were 2020 Democrats. So is Trump right? Did those rascally socialist Democrats sneak over into the GOP primary to smite candidates endorsed by the Greatest President Ever?

Maybe and maybe not. First things first: There is absolutely nothing illegal or even mildly inappropriate about Georgia voters choosing to participate in either party’s primaries as they wish. Georgia is one of 15 “open primary” states with no party registration. Voters show up at the polls and are offered either a D or R primary ballot. And while there may be some truth in Trump’s self-centered assumption that crossover voters were seeking to thwart his will, there’s no way to distinguish them from strategic voters seeking to choose the weakest general-election candidate or simply from voters who changed their actual party affiliation for one reason or another (clearly the heavy ad spending on the Republican side could have drawn in previously Democratic voters in the absence of competitive Democratic primaries in the gubernatorial and U.S. Senate races). I personally know Democratic voters in Georgia who routinely vote in Republican primaries because they live in deep-red jurisdictions where all the local contests are resolved in the GOP primary (the same was true in reverse for the many decades in which Democratic primaries were tantamount to general elections in states like Georgia).

The other thing to keep in mind is the folly of trying to attribute close election victories to one of many potential causes. The AP story on crossover voting in Georgia noted that the margin by which Raffensperger avoided a potentially dangerous runoff contest was smaller than the estimated number of Democratic voters participating in the GOP primary. Does that mean Democrats decided the outcome? Perhaps, but only if you assume (a) that nearly all of them voted for Raffensperger and (b) that he might not have won a runoff anyway.

The bigger issue in Georgia for Trump at the moment isn’t figuring out why his candidates lost but whether his anger at the primary outcome will lead him to sabotage the GOP ticket in November. His chief Peach State vanquisher, Kemp, is reportedly reaching out to the camp of the ex-president in order to arrange a truce to keep the GOP more or less united going into a tough general election in which Kemp will face a rematch with Democratic voting-rights champion Stacey Abrams, and Trump’s guy Herschel Walker will confront incumbent senator Raphael Warnock. It’s unclear what will happen, as the Journal-Constitution notes:

“Two people close to Trump say the chances of reconciliation were worsened when former Vice President Mike Pence headlined a pre-primary rally for Kemp, furthering a split between the two former running-mates. Others remain hopeful they can at least minimize Trump’s potential harm in a race where even slight changes in voting patterns could have a significant effect on the results.”

Trump has several months to pout and whine before putting on the party harness and avoiding a replay of his destructive role in the 2021 runoffs in Georgia that gave control of the U.S. Senate to Democrats. But if he remains in a fantasyland in which even a 2022 Republican primary in a state controlled by his party was “rigged” against him, he may never make his way back to a presidential ticket.