Trump vs Biden: First debate, Supreme Court appointment battle and vote count fight make for a critical week

Trump vs Biden: First debate, Supreme Court appointment battle and vote count fight make for a critical week
Democratic presidential candidate Joe Biden and US President Donald Trump. (Illustrative image sources: EPA-EFE / Etienne Laurent / Washington | Alex Wong / Getty Images)

The American presidential debate happens this week, Tuesday 29 September, just as the fight over a new Supreme Court appointment heats up, and the arguments over the vote counts in this election are increasingly intense as well.

“I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how.” — Joseph Stalin, 1923

“As long as I count the votes, what are you going to do about it, say?” — Boss Tweed in a Thomas Nast political cartoon, 1871

“Indeed, you won the elections, but I won the count.”
Nicaraguan dictator Anastasio Somoza, 1977

We are just about to witness a major, even key, moment in the American presidential selection process this week. In fact, this debate is just one of several crucial events simultaneously, and they are profoundly interconnected. The first, of course, is the initial presidential debate between the incumbent president, Donald Trump, and his Democratic Party challenger, the former vice president, Joe Biden. 

This event takes place on Tuesday night (9pm to 10:30pm EST), broadcast from Cleveland, Ohio, and it will be available to viewers all across the US and around the world on various television channels and networks and via online streaming on many sites. While it is true that the audience for the whole, actual debate may not exceed that of one of those most highly hyped American football Super Bowl championship audiences, it will almost certainly exceed the audience of the first presidential debate in 2016 of about 81 million. And many more people will watch the best, or worst, snippets from this debate. Over and over again. Especially the gaffes and obvious lies.

The most emblematic moments from this debate will reverberate into the future and they will be repeated ad nauseam, seeping deeply into the national consciousness as the country heads into election day, in just a little more than a month. Yes, there will be two more presidential debates thereafter, as well as a single vice-presidential one between California Senator Kamala Harris and Vice President Mike Pence; but this first presidential debate will be the one that sets the table for what comes next. In fact, with millions of Americans already starting to use mail-in ballots or make use of other early voting provisions, this first debate may actually be the only one that matters for many voters because they will have already voted by the time the next two debates come around.

Senior Fox News correspondent Chris Wallace has been chosen by the presidential debate organisers to be the moderator for this event and he has defined the major question areas and themes he will focus on. These comprise: The Trump and Biden records; The Supreme Court; Covid-19; the economy; the integrity of the election; and race and violence in our cities. Presumably left out of this litany are the new Supreme Court vacancy and the growing acrimony over how best to fill it, following the passing of Associate Justice Ruth Bader Ginsburg. 

There is nothing in the rules, however, that absolutely prevents Wallace from adding new topics or modifying his announced choices, depending on circumstances. But in any case, since there are two more presidential debates, there is plenty of space for additional topics. The Trump camp is presumably less than pleased with the choice of Wallace as moderator, given his earlier one-on-one evisceration of the president in a previous televised interview; but, as the president said in connection with all the mounting death from Covid-19, “It is what it is.”

In this debate, crucial for challenger Biden will be the need to differentiate himself from his opponent, showing himself, in that well-used phrase, as “the only adult in the room”. Given the tight time limits, this will mean not disputing every transparent falsehood, bizarre misstatement, deliberate whopper and legendary tall tale coming from the president’s mouth. Instead, he will need to set out a cogent, affirmative case of how his administration would carry out its espoused policies — and why those policies are crucial for national welfare and the country’s future. 

Perhaps useful for the former vice president, too, will be a need to undertake a deliberate effort to slow down the pace, to demonstrate deliberateness, contemplation, thoughtfulness, and a fine appreciation for nuance, civility, and respect for voters’ opinions. In response to typical Trump over-the-top rhetoric, perhaps something like:

“That was very funny, Donald, but the duties and responsibilities of the president are not laughing matters” might be a good place to start.

Meanwhile, for the president, a real challenge will be for him to find an alternative to the rhythm and energy level that comes from the usual excesses of his rally performances in front of the cultish audiences that have largely defined his presidency publicly. It is almost a given, however, that Chris Wallace as moderator will not give Trump the kinds of softball questions that allow him to serve up his usual red meat to the howling, baying crowd. 

From my own experience as an old high school and university debate competitor, my best advice will be for the two debaters to make clear statements of their ideas and views, but without the usual smarmy “wink-wink nudge-nudges” that are becoming a near-constant feature of our incumbent president’s rhetoric. Running for president is not like doing a tryout at an open mike, stand-up comedian evening. It is more serious than that. One thing both men must remember to do is to state their positions, explain and expand those views and then crisply summarise what they have just said — and all within the tight time limits that will be operative on Tuesday evening. Maybe acting in that fashion will be less entertaining than the food fight, but it will be so much more informative for voters as they make their choices.

But amid all this, along has come the death of Supreme Court Associate Justice Ruth Bader Ginsburg and the unseemly rush by Republicans to appoint her successor before the election potentially changes both the president and the composition of the Senate. Even before her memorial service, even as Ginsburg’s remains were still in repose at the court and then lying in state in the Capitol, Republicans were already falling all over themselves to encourage the president to nominate a replacement who could be confirmed even before the election. 

This position runs in stark contrast to those same Republican Senate leaders’ statements and decisions just four years ago, after Associate Justice Antonin Scalia died and the Obama administration had attempted to nominate federal judge Merrick Garland as Scalia’s successor. At the time, Republicans insisted on a new precedent that Supreme Court nominations shouldn’t take place in the final year of a president’s term, waiting instead for a new presidential term to begin, even though some eight months remained in the president’s term. Suddenly, that vociferously argued GOP position vanished in the GOP senators’ rush to fill the newly vacated Ginsburg chair. 

On paper, of course, the Republicans do have the votes — 53-47 — in the Senate for confirmation of a new appointment, even if it becomes a harshly debated one in the Judiciary Committee and then on the floor of the Senate for a confirmation vote. So far, two Republican senators have signalled their intention to vote against the nomination, but that would still be two shy of a no vote on the nomination — unless two more Republican senators make decisions to join Democrats and their two fellow Republicans.

As this kind of partisan desertion now seems unlikely, it follows that federal appeals court judge Amy Coney Barrett will become the next Supreme Court justice, giving the court a distinctive, definitive 6-3 conservative-liberal split. Because these court appointments are for life in the US, this nomination has taken on some outsized importance, especially since the nominee’s pronounced “originalist” constitutional views are very much in keeping with those of her court mentor, the late justice Antonin Scalia (the justice whom she served as a law clerk early in her career).

This appointment confirmation becomes particularly important since the court is due to take up an appeal of a lower court judge’s decision to overturn the entirety of the Affordable Care Act (Obamacare) in just a few weeks. Moreover, there are concerns that with the 6-3 conservative/liberal split, the court might well begin to dismantle such established protections as a woman’s right to control her own body (aka, the right to abortions) under the earlier “Roe v Wade” decision. Further, and most salient for the impending election, there are fears that in a confused, even chaotic electoral process, the Supreme Court might well be called upon to wade into the intricacies of the balloting and rule on challenges about the counts. Think of the 2000 Bush/Gore disputed Florida vote count, but imagine such a disaster played out all across the nation. As a result, getting the court’s full complement of justices in a court that leans heavily towards Trump’s way has now become a key part of the incumbent president’s larger electoral strategy.

And that leads us to the growing unease about Donald Trump’s distinctly ambiguous statements about whether he actually concurs with the 200-year-plus precedent that presidents willingly and absolutely accept the will of the people, as expressed through all those regular, periodic elections every four years, regardless of circumstances. So far, Trump has played fast and loose with that very idea, muttering darkly he sees a million ways the Democrats will steal the election through a blizzard of fake, mail-in ballots and other shenanigans. Or, even worse, foreigners such as those nefarious Chinese will simply print millions of fake votes to elect their “boy” as president. (The Trumpians are not, of course, particularly worried about Russian interference in two elections, 2016 and 2020, as documented by various national intelligence bodies, even though it has come down heavily in Trump’s favour.)

In various statements, the president has argued that because many of these mail-in ballots will only be tabulated after election day, there must instead be a cut-off by midnight on election day. Alternatively, the president and his team have also insisted that mail-in ballots are ripe for fraud generally. This is despite the multiple checks on their use and the virtual lack of any proof of voter fraud by mail-in ballots historically. (They have made much of the one reported event where nine mail-in ballots sent by military personnel were found in a rubbish bin in Pennsylvania a few days ago.) There is also the fact that a growing number of states, especially in the western part of the nation, have already shifted to virtually all voting by mail-in ballots, and there have been no claims of fraud. 

Given the fact, though, that the number of mail-in ballots will be at least an order of magnitude greater than in any previous election (in part, due to fears about attendance in large, congested groups waiting in line), there are certainly possibilities the final results will only be known days or even weeks later than the actual election day in some states. Accordingly, there may well be numerous circumstances where the Trump campaign and its supporters will find reasons to seek court decisions to overrule the actual voting. 

Moreover, should some state results remain uncertified, there are various other ways that mischief can play out. In the event a state’s results remain in question, in theory, a state legislature could conceivably decide on its own slate of electors, regardless of the presumed vote, and that, in turn, might lead to contesting electors’ slates presenting their choices to Congress for formal ratification in December. Again that would open the doors to yet more courtroom battles. 

Ultimately, in the event there is no firm resolution of the election, or if the uncontested electors do not lead to a majority for one candidate, the House of Representatives is constitutionally empowered to vote, each state’s congressional delegation getting one vote. Under such confused circumstances, with 26 of 50 state delegations now held by Republicans, that would ultimately give Donald Trump the second term he hopes for without further fuss. 

As a result, there is a quickly growing cottage industry of commentators, legal analysts, constitutional scholars and partisans writing their most dire predictions of possible electoral disaster and chaos. Some are even writing about how all of this might play into the hands of competing (and potentially armed) partisans eager and itching for a fight with their opposite numbers, and thus deeper social upheaval. And thus, inevitably, there are speculations about how it all might play into the hands of an incumbent president who tries to maintain his political hold on government via extra-constitutional means. 

The counter-argument, of course, is that the very decentralised nature of the American electoral process makes it that much harder to create a widespread fraud, especially since the states are each independently responsible for the elections in their respective states, not in the hands of a national electoral commission. There are hundreds of different ballots, depending on state and county races, and any fraud would be localised, not broadly national in scope.

Moreover, with so many watchful eyes on this process, the chances of fraud are that much lower. What is clearly true, however, is that unless there is an absolutely overwhelming landslide of monumental proportions, unlike in most recent elections, Americans will need to accept the reality that the final, official, definitive results will take days to sort out. Uncertainty will be the new national fascination.

However, the results for this election may already be baked in, in all but the inevitable court cases. The polling has been consistent for months now that Joe Biden holds a significant lead nationally and, most importantly, in most of the so-called swing states, he also holds leads as well. This is largely due to his strong support among women (and most especially suburban, university-educated women), as well as the black and brown minority populations of the country. 

Absent some real October surprise event, the actual results may well lead to a Biden victory, but with bouts of legal jousting over the results, at the margins, in some swing states. But we still must wait until the votes are counted, and the fat lady hasn’t even found her Viking helmet or spear yet. DM


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