Senate Victory, Judges, Alaska, and Obstacles!

Part of OJB’s victory gallery.

OK, which of the people above is not like the other? You could make the case for any of them, based on race or gender, but here’s a clue: two of them are incumbent Senators that we’ve wanted to see re-elected. The other is new Judge Michele Bell, a worthy successor to the late, great Judge Frank Ospino. While this piece is about the U.S. Senate, we haven’t yet congratulated her on her victory, and this happy post seems like a nice place to do so.

Vern asked me to write about Democrats retaking the Senate — so long as no one in the projected caucus dies. Morbid? Maybe, but I’ll bring that up to remind us that we now have a culture where we again have to worry intensely about assassination, for the first time since Barack Obama’s first year in office. I haven’t heard much chatter about that, perhaps out of concern about “manifesting,” but to me it’s a critical reminder of not only the tenuousness of Democratic margins (if the House does tip our way) but also of how much we need to do to clean the stain left on our society by people who have pushed a physically confrontational “might makes right” approach to politics. (And yes, that does mean Donald Trump and Steve Bannon above all — with their tens of millions of facilitators not far behind.)

WHY DOES THE SENATE MAJORITY MATTER?

For some things, including voting to convict an impeached President — and if Republicans take the House, we can probably expect them to impeach Biden once every quarter, so that Trump no longer holds the ignominy record (or maybe they no longer care about that!) — the Senate Majority doesn’t really matter much. The main thing is that it means that Democrats will have all of the Committee Chair positions, which means that they won’t bottle up good legislation (at least quite as much as Republicans would.) The prospect of not having Mitch McConnell — who will still go to hell for not having allowed a vote for mushy centrist Judge Merrick Garland for more than a year — as Senate Majority Leader would still be cause for great celebration even if it were mostly symbolic. But a lot of the Senate’s Democratic Committee Chairs leave a lot to be desired — Joe Manchin continuing as Chair of the Senate Energy and Natural Resources Committee for example, is hideous, but in the 50-50 status quo the Democrats literally can’t lose him — but in some cases, such as Bernie Sanders rather than Lindsey Graham being Chair of the Budget Committee or Dick Durbin rather than Charles Grassley Chairing the Judiciary Committee, the difference is enormous.

Those Committees will play a large role in approving (or disapproving) the President’s appointments, which is one of the most critical things that the Senate does. (Given that Trump got away with having “Acting Secretaries” of his departments, who had never been considered for running the offices they ended up holding — and who ended up holding those positions for longer than legally allowable, which would have been a legitimately impeachable offense but for his protection by the Republican Senate Minority — even subordinate appointments are going to get a lot more scrutiny in the years ahead.) Obviously, some of those appointments are Judges, and a rare one may be Supreme Court Justices, but let’s bear in mind that opposition from even one Democrat in an evenly split Senate can be enough to doom an appointment. But the vast majority of the appointments will be in other areas of government, although the Supreme Court is at the forefront of people’s minds.

The other major thing that the Senate does is investigations, which can be absolutely critical for shaping policy, weeding out corruption, and for worse things when power is in the wrong hands. (McCarthy committee, remember?) Who has the majority has a major impact on who gets what investigation.

As of Catherine Cortez-Masto’s decisive win late Friday, you’re probably hearing that we are tentatively back to the “status quo.” I disagree: we will be either somewhat better off or somewhat worse off, based on that happens with the undecided race that you’re not hearing about. I’m going to take you on a quick tour of Alaska.

ALASKA??!!

Yes, Alaska. The Alaska Senate race isn’t getting much mention, for reasons I don’t really comprehend, but its result will also fairly meaningful. Alaska Senator Lisa Murkowski — the last Republican Senate moderate — had to move to the right, after voting to convict Trump in his first impeachment trial, in preparation for this year’s re-election campaign. (Hey, I don’t like that either, but I sure do understand it.) With six years to go before her next campaign (when she’ll be 71), she can now return to being a potentially gettable vote — she voted against confirming Justice Brett Kavanaugh, remember! — especially given that her state that looks likely to elect Democrat Mary Peltola her first full term as its sole U.S. House Representative.

Opposing her is Trump-endorsed Kelly Tshibaka — who would likely be more conservative than Murkowski has been on her most conservative day. Admittedly, getting Trump’s endorsement over someone who voted to convict him was probably not especially difficult, but welcoming it is a problem. But I’m also factoring in her being a pro-gun, anti-abortion, evangelical Pentecostal from Wasilla — and, worse yet, another Harvard Law grad! (Republican Senators Romney, Cruz, Cotton, and now Vance are all Harvard J.D.s. Josh Hawley is even worse: a Yale J.D.! )

Alaska has ranked-choice voting for the top four candidates. Half a percent voted for a write-in candidate as their first choice, so I’m guessing that they aren’t ranking anybody, so the real goal here is to get 49.8% of who’s left, which would eventually become a majority. Let’s pretend for a moment that the current percentages will stay as they are and figure out what happens next. Tshibaka currently leads by 44.2% to 42.8%, with 80% of the vote counted; she probably received support from the 2.9% who chose the more extreme Buzz Kelley, so we might presume that she’ll be up to 47.1% in the second round after the write-in voters and Kelley voters are gone. So who’s the remaining queenmaker?

The Democrat in the race, Pat Chesbro, got 9.5% of the vote. I know that that’s low, but a lot of Democrats probably supported Murkowski to try to put her above 50% in the first round, which accomplishes nothing but saving time. I expect that Chesbro voters are those who were most turned off by both the State Republican Party’s ads for Tshibaka and Mitch McConnell’s ads for his incumbent. So the question becomes: Are Alaska’s Republicans smarter than California’s Democratic Party leaders? Democrats, the leaders proclaim, are not supposed to vote for a Republican under any circumstances — even ranking who’s better than whom is offensive to their sensibilities. So: if Republican voters similarly don’t express a preference between a moderate Republican and a likely more extreme one, the we’d expect Tshibaka, the more extreme Republican to win. If three-quarters of them were willing to express a preference between them, and all chose the moderate, then Murkowski should win.

I realize that that’s not what you are reading this article for. But you should know me by now.

THE STATUS QUO: WHAT IF WARNOCK LOSES?

If Sen. Rafael Warnock loses his seat in the December 6 runoff election to any of Herschel Walker’s personalities, then unless Lisa Murkowski is still there and feeling frisky any legislation is subject to the veto of both West Virginia Senator Joe Manchin and Arizona Senator Kyrsten Sinema. Manchin is the more publicly recognizable obstacle, but Sinema may actually be the more dangerous one, because she aspires to higher office and knows that, as one Arizona political observer put it “everyone in the state hates her,” so she and the hedge fund managers who love her may have some surprises in mind if she decides to make a move in 2024.

This is bad, but there is a silver lining: except on Senate procedural issues such as eliminating the filibuster (which gives swing vote centrists so much extra power), Manchin and Sinema tend to be bad on different sets of issues. I’ll paint here with a broad brush: Manchin is horrible on the environment; Sinema — who can expect to live further into the future, and who comes from a state already on the verge of melting — is pretty good on it. Sinema tends to be bad on the kinds of financial system and anti-corruption issues that Elizabeth Warren cares about, while Manchin, who does not have to raise much money to keep his job, is not a slavish fan of Big Banks.

So, putting it simply: if Warnock loses, Democrats have two big obstacles to getting anything done — and on many issues losing one, even if not both, is likely.

STATUS QUO + 1: WHAT IF WARNOCK WINS?

First of all, we’ll retain one of our best Senators, a literal and figurative follower of Martin Luther King Jr. Beyond that, circumventing the obstacles becomes a lot easier.

For one thing, it’s easier for Murkowski (fingers crossed) or maybe even Mitt Romney to come into play as a replacement for one of their votes. And even if it’s not, there would be a number of issues where Sinema would help get past Manchin or vice-versa. This matters despite the filibuster because some bills are filibuster-proof — a recent high-profile example of which has been Reconciliation Bills, of which a limited number can be brought forth every year.

STATUS QUO +2: WHAT IF WARNOCK WINS AND TIME REVERSES AND MANDELA BARNES SOMEHOW BEATS RON JOHNSON IN WISCONSIN?

Remember President Biden saying “Give me two more Senators”? He was hoping that he could finally ignore both prominent obstacles at once. In that case, though, chances are that another obstacle — our own Dianne Feinstein has been one in the past, although Senators including Mark Warner, Tim Kaine, Tom Carper, John Tester, or Bob Casey are likelier — could rise up to Obstacle Supreme status. But, in general, the more supporters a reform has, the greater the likelihood that it gains an air of plausibility around it, and becomes something that can gain more future support.

THE OBVIOUS BUT LESS OFTEN NOTICED REASON THAT IT MATTERS

Senators serve six-year terms, remember? The people we elected this month will be present for three Congresses — helping to make policy through the end of 2028. We can’t yet know what opportunities may come in the future. Maybe Democrats will be able to fashion a veto-proof majority at some point. Maybe Republicans will come back under a Republican President and one or more of this year’s elections will be all that stands between them and a unified Republican government that could do who knows what. While every seat in this election actively matters because it will decide who runs the Senate, its latent significance may be even greater. The basic fact is that good things come from firm foundations — and today’s successes. What happens this year does not stay in this year. What happens this year makes both great and horrific futures either more or less possible.

(Is this the sort of piece you had in mind, Vern? I hope so!)

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)