About that Non-Debate, and Facing Reality

Today is July 4, which in the United States is celebrated as Independence Day.  Because I have been loudly and repeatedly telling readers that I am no longer in the US, I should probably walk that talk and treat today as a Thursday and nothing more.  Thanksgiving will be on October 14, Labour Day is the same day as Labor Day, and Boxing Day is a thing.  (So is Nunavut Day.)  The point is that I have decided not to take today off, which is why I am writing this new column while so many of you are at the beach.

Notwithstanding my expatriation, however, it is hardly surprising that what I want to write about today is US politics.  Because of the end-of-term release of Supreme Court cases (most of them outrageous), we here at Dorf on Law have not written explicitly about last Thursday night's CNN ratings-desperate event, which was mislabeled a "debate" and has turned the presidential election story upside down.

Professor Dorf did end his column last Friday, which discussed the Court's Chevron-killing ruling, with this: "Any Congressional effort to restore Chevron must therefore await a time when Democrats control both Houses of Congress (with either 60 votes in the Senate or the will to change the cloture rule) and the Presidency. After last night, that's probably at least four and a half years away."  This reflected an assessment that President Joe Biden came out of Thursday's event badly injured, if not mortally wounded electorally.  I completely agree.

Next week, I will publish a column on Verdict in which I will argue that none of this matters, that is, that even an absolutely stellar performance by Biden would not have changed the fact that Republicans and the Supreme Court will install Donald Trump in the Oval Office in January.  For now, however, I will set that aside and act as if the non-debate (or any of the politicking this year) matters.

I will thus use this opportunity to offer some reactions to the non-debate and then discuss whether Biden should step aside and refuse to be the Democrats' 2024 nominee.  Spoiler alert: Yes, he should, although it is both scary and sad to say so.

Stay with me on this, because as I explain below why this was not a debate, I will also explain why it was so irreversibly fatal to Biden's political viability.  There are now no good choices, and for those who think that the election's outcome will not be overturned by Republicans, the only question is which of the bad choices is least bad.  Reasonable minds can differ up to a point, but this is a pretty one-sided argument.

To begin, why do I continue to reject the word "debate" to describe such political events?  Partly, I concede, it is pure pedantry.  Both Professor Dorf and I have noted many times here on the blog that we were actively involved in the collegiate "parliamentary debate" circuit in the early and mid-1980's.  It is difficult to take seriously as a debate an event at which people merely talk past each other for an hour or more and then are declared losers and winners based on who sighed too much (Gore's arrogant! [2000]) or who sighed in what was deemed to be the right way (Pence wasn't drawn into bickering! [2016]).

Indeed, I argued after the 2016 non-debates ended that there should be no more such events, ever.  At this point, Biden's team probably wishes that that message had carried the day.  Admittedly, there are many legitimate formats that can structure a real debate, so I would never say that there is anything inherently wrong with a system in which a participant has two minutes to respond to a question, listen to his opponent respond for a minute, and then speak for another minute in rebuttal.  That is awkward and artificial, but any framework is necessarily arbitrary and wooden.

More to the point, no matter the format, what one would hope to get out of anything that even purports to be a debate is what we nerds call "clash," that is, actual engagement and response to what an opponent has said.  Most of the time, US politicians are so scripted that they barely listen to each other, and they are coached to "answer the question that you want to answer, not the question that was asked."  All of that leads to infamously weird moments such as Michael Dukakis' 1988 gaffe in which he answered a hypothetical question about his wife being raped and murdered by robotically reciting his prepared statement about crime.  Similarly, Marco Rubio's presidential candidacy effectively ended when he could not stop repeating the same talking point over and over again.

Notably, Rubio's undoing was not merely caused by his own mindlessness but by actual debating.  Chris Christie had noticed Rubio's unseriousness, prepared for it, and landed a devastating blow when Rubio barreled forward.  Even worse for Rubio, Christie then landed the knockout blow by catching Rubio going straight back to the script.  I never thought that some of the supposedly big moments in presidential non-debates were big deals -- Ronald Reagan's "There you go again" was not an actual response to any specific argument but merely a B-list actor's delivery of a generic putdown -- but Christie's was the real deal.

Last Thursday, Biden did not debate, even in that minimal way.  I will discuss below the more memorably bad aspects of Biden's performance, but one thing that rightly infuriated people was that both CNN's anchors and Biden himself essentially ignored the nonstop litany of lies coming out of Trump's mouth.  This was especially surprising in light of Team Biden's confidence that they could win the night in the same way that he had pulled off a major win in the State of the Union speech earlier this year.  But Biden did not gain rave reviews in March by delivering a soaring speech.  That speech was not a debate, but he debated effectively, responding to Republicans' jeers and boos so cleverly that he ended up painting them into a corner, as he had done the year before as well.

His failure on that score last Thursday was made immeasurably worse by the viral moments in which Biden could not even get through his prepared remarks competently.  At least Dukakis and Rubio could do that much, but Biden simply failed again and again.  In debate terms, his "constructive" speeches were even worse than his "rebuttal" speeches.  The media usually converges on a meaningless consensus after such events, but it is difficult to quibble even a little bit with non-opinion pieces using the word "disastrous" over and over again to describe Biden's evening.

Does any of this matter?  MSNBC's Lawrence O'Donnell has articulated a persuasive argument that it does not.  He points out that there is never a time in a presidency (or any politician's life) in which the moment must be met by a zinger, a quickly recalled factoid, or an elevator speech about an important public policy topic.  To his credit, he offered his argument before the non-debate -- when liberals like O'Donnell quite reasonably felt confident that Biden would do well -- rather than merely trotting it out after the non-debate to excuse what we had all seen.

Again, O'Donnell's argument is persuasive on its face.  There are, however, two better arguments that rebut his dismissal of the importance of communicative competence.  First, I am repeatedly on the record emphasizing George Orwell's most important argument about clear thinking and speaking.  In my 2016 call for the end to these non-debates, for example, I wrote this:

In his classic and essential essay "Politics and the English Language," George Orwell rejected the notion that a person can have good ideas without having the words to express them.  When someone says, "I know what I mean, but I don't know how to say it," most people sympathetically nod.  Orwell would say, "Then you don't really know what you mean."

Orwell's point is that the path between muddled thinking and muddled communication is not a one-way street.  That is, most people seem to think that unclear thinking will always lead to unclear speaking or writing, but clear thinking might or might not find its way into clear communication.  Orwell says that if you are not making your point clearly, then you do not have a clear point.

What we all saw on the stage last week was not, I am arguing, someone who "knows what he means but can't say it clearly."  And I make this argument fully sympathetic to Biden's challenge in dealing with a stammer, which is most definitely not the problem here.  George H.W. Bush used to go off on weird tangents, and tangents from tangents, that left everyone confused as to what he might even have been trying to say.  Biden was that bad; and just as I believe that the elder Bush's incoherence was two-way, so I see that in Biden now.

The second reason I reject O'Donnell's excuse for Biden is that Biden did not merely stumble over his words so much as look completely lost.  Even when Trump was speaking, the split-screen showed Biden staring blankly into the void, seeming not to comprehend what was happening.  I suppose that one could argue that a President is entirely a figurehead, which is essentially the argument that Republicans made to justify propping up Reagan and the younger Bush, both of whom were essentially potted plants (even setting aside Reagan's late-in-life decline).  "It doesn't matter what he said, didn't say, or anything else" is surely what Trump's supporters would have shouted if he had had the kind of night that Biden had, but for anyone who wants a Democrat to beat Trump again, there has to be a reason to say that Biden's obvious decline does not matter.

To be clear, we are now talking about prognostications and alternative scenarios, which are inherently speculative.  If I believed that voters could be convinced to look past what they saw -- and what they will continue to see on endless loops, even though most of them missed the non-debate -- then sticking with Biden would make more sense than any of the truly dicey alternatives.  And maybe Biden will have a couple of good days this weekend that calm the waters.  Maybe.

What is odd about the response among Democrats is that they cannot agree on what they saw, even though they all agree that it was bad.  Former congressman (and one-time presidential candidate) Tim Ryan wrote an op-ed a few days ago calling on Biden to step aside so that Democrats can nominate Vice President Kamala Harris for President.  He then was the interviewee for a segment on MSNBC's "Morning Joe," where he had this exchange with host Mika Brzezinski:

Ryan: "I don't think that it's helpful to try to convince the American people that we didn't see what we saw.  ...  That's why the 41 percent are calling for him not to run.   That's why people are running around with their heads in their hands, because you're asking them not to believe what they saw, that their eyes are lying to them.  And I just, I don't think that's helpful."

Brzezinski: "OK, but who's doing that?  Tim, I don't understand who's doing that.  Everyone's says it was a terrible night.  I mean, it was a horrible, terrible, disappointing night.  No one is saying ... no one's being Trumpy here.  ...  If Joe Biden can recover from this -- and I'm just suggesting that everybody wait a week and see what happens."

When Brzezinski asks, "Who's doing that?" the key issue is what "that" is.  She argues that even Biden's defenders are willing to say that he had a very bad night, which she thinks rebuts Ryan's point.  But when he said that "you're asking them not to believe what they saw, that their eyes are lying to them," he is saying more than that Biden had a bad night for one reason or another.  He says that "what we saw" was someone who has finally, sadly reached a key turning point in the unwinnable fight against aging.

Honestly, even if Biden has a great few days this coming weekend, why would anyone think that voters who were already deeply skeptical of Biden's age would say, "OK, cool, it was all just due to a head cold and lack of sleep"?  Brzeskinski tries to argue that Biden can right the ship, and she adds this in response to Ryan's call for Harris to get the nod: "What I don't get about your argument, and I'm curious about it because I respect your greatly, is that you still have Kamala Harris.  She's his Vice President.  ...  I just wonder, though, what argument are you making to put Kamala Harris out there, when she already is."

As I noted above, this is ultimately guesswork.  Maybe Brzezinski is right that the harms from having Biden step aside more than outweigh the benefits, and maybe Democrats can run a campaign that essentially says: "Even if you're not willing to ignore Biden's decline, we have his replacement right here."  Ryan argued that putting Harris front and center importantly elevates her in a way that being Biden's top surrogate does not.

I would add that those who think that Biden is still a viable and valuable campaigner can now flip the script and say, "You still have Joe Biden."  That is, if Biden decides to step aside, he can say something like this: "A lot of people keep it together well into their late 80's, and I thought I would be one of those people.  I can, however, no longer ask the American people to trust that my health will hold out.  I picked Kamala Harris as my running mate four years ago, and I have never once regretted that decision.  She is experienced, ready, and a force to be reckoned with.  I will use all of my remaining energy to campaign for her while running the successful administration that she and I put together."

I should also add that I am not in fact saying that this is the only scenario that might make sense.  I do think that Trump's team would never in a million years allow him onto a (non)debate stage with her, because she would go into prosecutorial mode and eat his lunch.  But I am also impressed by the other people whose names are being floated, from Gretchen Whitmer to Josh Shapiro to Wes Moore.  And honestly, Trump will look terrible next to any of them.

There are people arguing earnestly that Biden has been a very successful President, and they are right.  They are also missing the point, however, because this is all about the future.  Any Democrat can run on the successes of the past three-plus years, and all of them can run away from the things that are politically difficult (although Harris's ability to do so is obviously limited by her being Vice President).  We also do not know with certainty that Democrats would unite around someone else, that the media would not spin this as desperation, or whatever.

There are no certainties.  If Biden decides to stay in, I hope that he will be able to prove that what I thought I saw last week was not what he now has become.  But like Tim Ryan, I am very confident in what I saw, which did not appear to be a reversible lapse.  More importantly, I do not see how to convince others to give him another shot.

I admit that people who are not already voting against Trump — given everything we know about him — are impossible to understand, so maybe they can be calmed by a few good news cycles.  If I were someone in a position of influence in the Democratic Party, however, I would not be willing to bet the rule of law on being able to pull off that trick.


To all of the Dorf on Law readers who are based in the US, I wish you a pleasant holiday.  I hope that we will all be able to celebrate the country's continued viability next July 4, and for many years after.