Unburdened By What Came Before: Biden Out, Harris In

Transcript

Tom Church (00:11):

Welcome back to the Libertarian Podcast from the Hoover Institution. I'm your host, Tom Church, joined as always by the Libertarian, Professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Laurence A. Tisch Professor of Law at NYU, and he's a senior lecturer at the University of Chicago. Today we're talking about President Biden's decision to withdraw from the Democratic ticket in 2024 and the changing portions of the Trump campaign. Richard, hello. It's been quite a while.

Richard (00:41):

Yes, it has, but nothing has happened in the interim.

Tom Church (00:45):

Nothing at all.

Richard (00:47):

Absolutely.

Tom Church (00:47):

Richard, I think it's been about a month since you and I have spoken, and in that time, president Trump or former President Trump was almost assassinated. There's been some updates on his various dalliances with the law and those cases, but I think most importantly yesterday, president Biden decided to say out loud what I think many had been predicting and perhaps even hoping for, that he will not be running for president in 2024 this November. It's 100 days away, the DNC is coming up in just under a month. Very soon thereafter, Richard, he came out and said, "I support Kamala Harris as the nominee." Let's start here because we no longer have Biden at the head of the ticket. Former President Trump just spent a week at the RNC talking about who he thought he was going to be running against, and then now we still don't know for sure that it's going to be Kamala Harris. First question for you. Is this a good look for the Democrats or bad look for the Democrats?

Richard (01:50):

Well, it all depends on what your perspective is. It's a disaster from the Democrats if they could have done this a year ago when Biden had very strong information about his rapid decline. I think what happens is that the decline has become even more acute. It is instructive to note that he didn't say anything. What he did is he issued writings which could have been prepared for him by somebody else. The man has COVID. Generally speaking, if you have COVID and you're in your eighties, like me who've had it, you can do pretty well if you just take care of yourself. But if you have other impairments, it becomes synergistic and it's very, very dangerous. And my view is the reason he changed his outcome is it became clear to him that he could not get out of bed in a rational fashion, let alone try to run a campaign.

(02:38):

The stuff can be terribly debilitating and he's not going to be able to make it. So I don't think you'll see him speak very much, and if he does, it will be out of a hoarse and broken man. And did he have to pull out because of generosity towards the Democratic Party? I don't think so. I think it was bitter abject necessity that drove him to that situation. But on the democratic side, there is all rejoicing because there's no question even if you ran Daffy Duck, let alone Kamala Harris, you're much better off without having this man as an impediment on the ticket. It's also very clear to me that she will be the nominee of the party in one way or another. Every other person who has the potential chance of taking that nomination, even earlier, had basically forsworn. There is no matter as smart as Gavin Newsom or Gretchen Whitmer who would try to run under these circumstances in 2024 with everything against you when you could hold off, even have the Republicans, God forbid, win in the interim and then run against a new nominee in 2028.

(03:44):

So the thought that Nancy polluted falling, let's have ourselves a little public debate with six eager beavers up there. Are there going to be five no-shows? And the only person who will show will be Kamala Harris and she won't be asked to do anything about it because there's nobody who wants to stand in her particular way. It makes absolutely no sense for them to do so. So she's the nominee by default. That doesn't mean it's all smooth. How she takes the nomination, how they handle the four, whom she chooses for a vice president nominee, a running mate, how she delivers her acceptance speech on the floor, whom she picks for her key advisers and so forth are all very, very large issues that will have to unfold during this period. But I think in effect the shrewdest of them all, Nancy Pelosi, what she did is she said, "I'd like to have a wonderful little auction for this," yesterday.

(04:35):

And today she says, "I think it's Princess Kamala is about to become the Democratic queen." Because she read the tea leaves just as I did, and there is no one who's prepared to mount any opposition. So at this particular point, it's either in gratitude on the one hand or Kamala Harris on the other, and nobody wants to be ungracious. So what we do now on the Democratic side is we have an orgy in which the two greatest people since the history of civilization are the gracious man who resigned his position and the wondrous woman who's trying to replace him. And so this is spin meister all over again, and there's just a question of how long the particular honeymoon will last. On Biden I think nobody will want to pay any attention to his condition anymore unless and until he tries to speak in public, which he may have to do so long as he remains president. But they're going to try to confine it to that.

(05:27):

My view is he may not be able to serve out. I think the COVID is probably more serious, at which point I think she would become president and the vice presidency given all the turmoil is likely to remain vacant for the remainder of her term, creating all sorts of anomalies in the Senate and so forth. But I think that's the most likely scenario. I don't give him better than even money of surviving in a viable fashion until January of 2025. I think this is much more serious, and generally speaking, when these things happen, they go slowly at the beginning and then they accentuate and then they become irreversible. My guess is when he got the COVID, the irreversibility started to set in and people said to him, you can't do it. You can't get out of bed. That's my guess. I could be wrong, because nobody's going to be very candid about all of this, but I think in effect what happens is he's just a spent force and I wish him well.

(06:24):

Nobody wants to see anybody suffer. And to the extent that he can get out of politics so much, the better. The danger is that if he's ineffective while in office, major things could happen or could be induced if people on the other side understand that you're not going to get a firm and clear response from the United States. The reply to that, oddly enough, will be as follows. This has been around for the last six months ago. We got a team in place who can speak for the president under his name, and those will be the same decision makers that we have now. I think that's actually the more likely kind of arrangement on this sort of thing. But as far as I can see, Biden is no longer going to be a central political figure in the situation. It'll be his administration on the one hand or her campaign on the other.

Tom Church (07:10):

Richard, it's a long time to be a lame-dunk president. Usually we only do a couple months of that. We're looking at six months of that. I'll mention too, I think one of the other reasons, I don't think President Biden wanted to do this, but his polling has dropped even more in the key battleground states in Pennsylvania, Michigan, Wisconsin especially following that disastrous debate performance. I think it was kind of a, there is no path to victory here. You don't have a choice. He fought it for quite a long time.

(07:44):

You mentioned the health issues here. Immediately after this, speaker Mike Johnson came out and said, "Hey," and this is something that we're going to be seeing, I think unified across the Republican side of the aisle at this point, which was that if President Biden isn't fit to run for office, he isn't fit to hold the current office. So help me out here. Do Republicans actually want this? If Biden were to step down, Kamala Harris becomes president, and I think it's probably a much harder fight against a President Harris than a current Vice President Harris for Donald Trump.

Richard (08:19):

I think what happens is it probably improves the odds somewhat, but it also increases the variance. She could be a bigger screw up when she's president than when she's simply the vice president doing her campaign situation. And remember, she had a terribly disastrous situation when she tried to run for president the first time round. There were so many internal fights within her own family that she actually withdrew before the primary season began. And so what happens is-

Tom Church (08:46):

Richard, if you remember, Biden had to drop out a few times running for president too.

Richard (08:49):

I know. Look, I'm not saying that she can't recoup. People saying she walks on water. People have said that she's done enough campaigning now that she actually has certain things. It's very clear looking at her that she's 20 years younger than Donald Trump, turns out to be, and that could turn out to be a huge advantage in the way in which this thing operates. I think there's maximum uncertainty. But there was a piece in one of the journals today which said, "What's the rate of turnover in Kamala Harris's office?" And it turns out it's exceedingly high. This is not a trivial situation. It means that you don't know how to hire and retain staff. It means that you can't develop a team, you can't develop a spree, you can't develop any kind of trust that's going across these arrangements. It means that there are going to be all sorts of fights and this is going to create complications with money and influence and person. It's a very bad sign for her.

(09:43):

We do know that the Trump organization seems to be more professional than the President himself. He of course, is always graceless to the end. Even when he has a chance to say God rescue Joe Biden, he starts talking about crooked Joe Biden again. Somebody has to try and muzzle this man, but I think it's all hardwired DNA. And the moment he sees an opportunity to take a cheap shot, he is going to do it. And whom does he hurt? Well, it's of course himself. So Trump is always capable of putting somebody back into the race, but I think his staff is much more professional than it was, and you're not going to see Rudy Giuliani types of mistakes and so forth, and they kept everything sort of buttoned up when it came to the Republican Convention. His speech went on much too long, and that's because of his self-indulgence. So the real question is can they keep Donald Trump from being his own worst enemy? That's a 50 50 proposition.

Tom Church (10:40):

50 50?

Richard (10:41):

Yeah. They may be able to do it some. They did it for a couple of weeks when Biden, it turns out, had that bad debate. They may be able to persuade him to do it again. I don't know. I'm not a part of the Trump campaign. I'm one of those people who will probably vote for the person who happens to be the nominee of the Republican Party without uttering his name, and then we'll try to oppose him on many of the policies that he thinks are truly disastrous of which Trump has a fair parcel of them. It's the question of what's the alternative like? And it's worse. I think if anything, Kamala Harris absolutely will seal the complete dominance of the hard left wing of the Democratic Party. Gone are the days of any centrist Democrats. She will be supported by people like AOC, Elizabeth Warren and Bernie Sanders because she's going to be running and carrying water for them.

(11:36):

And I think that this is going to be a hard sell with respect to most of the public. And what happens is when she starts getting pressed, will she get flustered? I think the likelihood that she'll crack is very hard. Generally speaking, the less people know about you, the higher a weight is attached to each new piece of information. With Donald Trump, you have so much knowledge about him, then he sounds like a buffoon, you say, that's the buffoon we've known and loved for 2016. But if she does it, it's new information and can change it. And the question is, can she speak beyond the word salad is an open issue. Is she going to be able to address things like the border which she had dealt very badly with previously? And then there's just going to be the whole range of things that's going to happen.

(12:17):

Tell me, Ms. Harris, what do you think about your various key commissioners? Tell us about Lina Khan. Tell us about Gary Gensler. Tell us about Michael Regan. Just go down the list and tell us something about what they've done that you've liked. And they're going to have to clog her full of information and it's going to be very, very difficult to do so. She's going to try to run, I think, on abortion, which I think is a somewhat stale issue at that time. January 6th, which I think is even staler, but nonetheless is still there. I think she'd be a big mistake for her to say, well, look, Joe Biden is a convicted felon, when in fact the charges were contained with sufficient irregularities that they'll probably have to be reversed on appeal. I don't know what she's going to do and neither does she, and she has to figure it out.

(13:04):

There is no evidence whatsoever from anything that she's done that says that she's either quick on her feet or quick study on any substantive issues. So that's going to be, I think, the major problem that she has to face. And being an unknown, the volatility of your campaign is much greater. If she wins, it's going to be basically a very close race. If she loses, it could be by as much as 10 or 12 points because we don't know how she can perform under these circumstances. I was actually involved in some litigation against her in California where she took the very pro-union stance against some very strong workers who basically deserved her support and she was a very bad lawyer making very bad judgments in that kind of a case involving Garrow one farm. But that was then, this is now, and who knows the way in which this will go.

(13:57):

What's going to happen though is you are going to see stem to stern revelations about her going back to her relationship with Willie Brown and before. Nothing is going to be off limits. Some of it will be done through a respectable sources of it. Some of us will be done through the media. The Republicans are also able, just like the Democrats, to play highbrow in some settings and low brow and in other settings. And it's an open question as to whether she can stand it. If she comes up and actually beats the odds on this, she will have a very strong chance of winning this election because my view is there's 40% plus of the population in the United States who would vote for a dead gerbil if that would beat Donald Trump. And so she's got a base from which she could work. It's the independents, it's the folks who are worried about paying mortgages. It's the folks who turn out to be working class union types.

(14:52):

She may have the union leaders. She doesn't have the union representation. So she's going to have to basically win back some constituencies and she's going to have to answer some very, very hard questions, which the Democrats don't do. They always think that the economy's great, just look at the unemployment numbers. What they never bothered to ask is where's all the gain? And the answer is, it's in the public sector. And these are new workers that will reduce productivity rather than increase it.

(15:18):

So I think the long-term prospects for growth in the United States are very poor if she's around. And I don't know why, people will figure this out in great detail, but my sense is the skeptics to her believe that having watched Biden in office now for three and a half years, he did not know what he was doing. And she cannot basically differentiate herself from him in a way that will make her credible in terms of her potential run for the office. So I think the expected value is negative in terms of her campaign after the honeymoon is over. But there is, and the Democrats will exploit it, a high side, which may yet come to pass.

Tom Church (15:58):

Let me ask you, Richard, do you think that Republicans are looking at Biden stepping down and regretting making so much of the election about old age and senility? Trump is 78. He'd be the oldest person elected president. And while Joe Biden's debate performance was disastrous, Donald Trump's wasn't much more coherent. We're going to see Harris and Trump debate. We're going to put them side by side again. And the presidency, it's one of the toughest jobs of the entire world. I think it's very important who is there, who has the capacity to make these decisions.

Richard (16:35):

Yeah.

Tom Church (16:35):

And so now what do Republicans do now that Trump is the old guy?

Richard (16:40):

Well, the Democrats have already put this out as a central point. He's too old to run. They didn't say that about Biden in 78, but politicians only thrive because they have short memories. And this is no exception. Look, let's put it this way. You look at her and you said, hey, here's a woman roughly speaking in her prime of life. She's 59 years old. Then you look at J.D Vance, my God, he looks 20 years younger than her. And why is that? Because he is. And it's a striking difference. And then you look at Usha, his wife, and striking again. And so a lot of this may turn on who becomes the vice presidential nominee, but there is no question that visual appearances really make a huge impression on these kinds of cases, and that works to her advantage. He's not going to be able to get rid of it, and he's going to stumble a little bit.

(17:30):

I think he's much more vigorous at 78 than Biden was four years ago. He seems to get along very well on very little sleep, has done so for many years. He has yet to screw up in the same way on the campaign. And so I don't think that at this point it's going to take, unless and until you get some kind of an incident, and if that happens, then all bets are off. That's the reason why there's volatility. My betting is that she's more likely to screw up because of a lack of natural aptitude at this business and inexperience at it than he is given the fact that he's an old dog who's learned a few tricks in his day.

Tom Church (18:08):

Last one, maybe about the DNC. I want to ask about rules and I want to ask about fundraising because it's questions.I've been asked a lot about these hypotheticals of Biden stepping down. And now that he is, let's see, Harris on the presidential ballot. The DNC hasn't happened yet. And back in the day we had smoke-filled rooms and they got together and decided who the nominee was, and then we put them on the ballot. Are we expecting to see Republican strategist lawyers challenge having Harris on the ballot in any state in America just because this has happened so late in the game?

Richard (18:44):

I think they may well try, but the political ramifications of trying to keep her off the ballot are very, very bad.

Tom Church (18:51):

Okay.

Richard (18:51):

And I think what's going to happen is the battle will be less on balloting. It will be more on the question of who's going to be our vice-president nominee? But I think the transition of funds that serve to Biden, to our good friend Kamala Harris or something which are very, very complicated.

Tom Church (19:09):

Yeah, that was my next question was how about the funds already raised?

Richard (19:12):

And I think that is sufficiently arcane that the Republicans face no real blow back in trying to prevent an illegal transfer, if that is what there is. The Democrats will open up their wallets to her in a way that they did not for Biden. But I think in effect that what you're going to see is an initial burst of some modest enthusiasm to try to get her started, and then if she slows down, I think the contributions will dry up. So that she's again, much more volatile, and that's not only for a public audience, it's also for the fundraising audience.

(19:45):

What is very clear to me is that those people who are anti-Trump are so vehemently and profoundly anti-Trump that they will stop at nothing if they think that they can get him. They really do believe in a form of Armageddon that I regard as incomprehensible. But then again, they didn't ask me for my opinion. The typical response that I get in my progressive circles on the Upper West Side is people will ask me, or more often my wife, will say, he's not going to vote for Trump. On the ground. That this is simply unthinkable.

(20:18):

It's just beyond issue. May be able to stay home, but you cannot sign on to the incarnation of evil. Now what happens? That's the Upper West Side. Trump is not going to carry the Upper West Side. But when you start looking around the country, there are a number of people who said, I couldn't vote for him four years ago or two years ago, but what's going on on the other side is worse. My guess is that Kamala Harris will run a campaign somewhat to the left of that which Beau Biden was trying to run, and it's going to be more emphasis on abortion, which I don't think is going to carry it. But more importantly than that, the whole question of sexual relationships, men, women, transgender issues and all the rest of that stuff, she's going to be out there. And I don't think that that's a winning position with the public at large.

(21:08):

What's my evidence on that? Well, you look at the state of the debate over whether or not we're going to allow aggressive medical interventions with young children, even with parental consent, and state after state has pulled back from that. There was this powerful report in England, which went in the opposite direction. And I think in effect, most people in this country have come to the conclusion, if you're 21, do what you want with your own bodies. You have no one to blame or benefit but yourself. But if you're talking about kids, the whole institutional framework is sufficiently corrupt that we can ban it. And my guess is when it goes to the Supreme Court, those bans will be upheld. She wants to run on the transgender issue, she will lose and lose big because I think the public has just had it with that particular stuff.

(21:54):

Same thing with respect to men masquerading as women in these games. If you change your sex, you could change your identity in terms of your restrooms, your marriage license and your sport. But if you just do it by designation, nobody is going to accept that, I think as a general position. She may be in that particular group. So we're going to have to see. What happens when the endorsements and the threats start to come in, will she be able to handle them? As I said, my most likely scenario has her doing badly on this relative to what people have hoped, but that's only one scenario. And there's some that wish she may come out somewhat better. And so there's a high degree of uncertainty about what's going on here. Let's put it this way, if Biden had still been in office and still campaigning, I think the money would've dried up.

(22:44):

I think he would've collapsed in the way, and this would've happened a month or two months later where it would've even worse. So that for the Democrats, it's taking a very long shot and making it into a less long shot, and that they should be pleased about the way in which this is gone. But it's very fragile, and as we've said, wait until next week or at least next month because we have no idea what kind of order or chaos is going to be at the Democratic National Convention. What protesters are going to show up and why, becomes a very good question. I don't know very much. I'm a law professor. I give my best judgments on this as a long-term observer of human nature. But basically, I understand that the people who are in the steering wheel are pros, and I am not. And we'll see whether or not these predictions take hold or whether or not it turns out I'm wrong pretty much on everything.

Tom Church (23:39):

You've been listening to the Libertarian Podcast with Richard Epstein. As always, if you'd like to learn more, you can head over to Richard's column, the Libertarian, which we publish on definingideas@hoover.org. If you found this conversation thought-provoking, please share it with your friends and rate the show on Apple Podcasts, Spotify, or wherever you're tuning in. For Richard Epstein, I'm Tom Church. Talk to you next time.

Speaker 3 (24:09):

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