It has been 12 days since the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization and overturned the constitutional right to an abortion. So far, President Joe Biden has reacted to that news with one speech—not even a prime-time Oval Office speech, but a middle-of-the-afternoon “press event” that didn’t allow for actual questions—during which he said he “stands with” women. He evidently didn’t mean that literally: We have not seen Biden physically standing with any of the people who have been protesting the court’s decision. And he evidently didn’t mean it figuratively either: We have not seen Biden echoing, amplifying, or even agreeing with calls for immediate action to protect reproductive rights by people like Senator Elizabeth Warren or Representatives Alexandria Ocasio-Cortez and Cori Bush.
Some might argue that 12 days is not enough time to develop a fully fleshed-out federal response to the revocation of the right to bodily autonomy for half the population. But I’d point out that it has been 65 days since the Supreme Court’s draft opinion in Dobbs was leaked to Politico. Perhaps some people wanted to believe that the decision wasn’t “real” until it was announced, but the federal government should not be extended the luxury of sticking its head in the sand when it has forewarning of impending doom.
Indeed, the revocation of abortion rights has been more than theoretical for at least 308 days. That’s when Texas’s infamous Senate Bill 8—the bounty-hunter bill that has effectively outlawed abortions—took effect. At the time, President Biden promised a “whole of government” response to what he called the “unconstitutional chaos” of the Texas bill. So far, we’ve seen a lawsuit filed by the Department of Justice that was dismissed by the Supreme Court before the ink was dry on it, and nothing else from the whole rest of government.
But even before then, every Democrat had been on notice that reproductive rights were under dire threat. Six hundred and fifty-six days ago, Ruth Bader Ginsburg passed away. That’s when everybody who was paying attention knew for a locked fact that the Supreme Court would take a shot at overturning Roe v. Wade. Biden wasn’t yet president, but since taking office he’s had 532 days to prepare to address the threat, and in that time his administration has done nothing—nothing to protect reproductive rights, nothing to blunt the power of the courts to take them away, and nothing to set up backup protections for pregnant people to access services we knew the Supreme Court was going to take away. For the Biden administration to come into office without a clear plan and strategy for this exact situation is executive malpractice. Republicans were ready to take advantage of the Dobbs decision the moment it came out. Why weren’t Democrats ready with countermeasures?
And there are things Biden could have done. Knowing, as he must have, that the court was taking aim at abortion rights, Biden could have refused to sign a 2022 budget that included the restrictive Hyde Amendment, which limits how federal funds can be used to promote reproductive health care. Even with the Hyde Amendment in place, Biden could right now begin leasing federal lands to abortion providers, providing services at military installations, and providing for travel vouchers for people who need to flee their Christofascist states in order to exert control over their own bodies.
In addition to putting forth actual policies and orders to protect rights, Biden could be using the bully pulpit to argue in favor of court expansion, instead of always being the wet blanket arguing against it. Remember: While the “court packing” scheme put forward by Franklin Delano Roosevelt did not meet with congressional or popular approval, the Supreme Court noticed. Before he put forward the plan, the court was regularly striking down FDR’s New Deal policies; after he threatened to pack it, the court relented and started approving his policies. Historians call it “the switch in time that saved nine.”
There’s an interesting historical debate about whether Justice Owen Roberts, the man who changed his position on the New Deal, was influenced by the threats of court packing, but I feel confident in saying those threats didn’t hurt. If Biden had been making a full court press for court reform over the course of his presidency, would that have made alleged attempted rapist Brett Kavanaugh, a weak man who appears susceptible to peer pressure, join Chief Justice John Roberts in a more limited restriction of abortion rights, thereby preventing Roe from being overturned outright? We’ll never know, in part because Biden never said anything to make the court sweat.
Instead of political and moral leadership, Biden (who still hesitates to say the word “abortion” in public, as if it is something to be ashamed of) has offered a politics of appeasement. A therapist might call this response (and that of many Senate Democrats) “learned helplessness”: exhausted by previous losses, the Democrats now believe they are powerless to help themselves and their voters, even when opportunities to act are presented to them. Most of the Democratic establishment has spent the past week and a half telling people what they can’t do, instead of telling people what they’re going to do.
That feigned helplessness is not limited to the immediate aftermath of the Dobbs decision. The rot is so deep that even in this moment of national crisis, Biden is still allowing Senate minority leader Mitch McConnell to dictate the rules of the game. Last week, news leaked that the president was set to nominate a forced-birth extremist, Chad Meredith, to a lifetime federal judgeship in Kentucky as part of a “deal” with McConnell. In exchange for giving the Senate minority leader another anti-abortion judge who will wield power for the rest of his days, Biden is set to get two US Attorneys—prosecutors—in the state.
I cannot adequately express how terrible this deal is, and I express how bad things are for a living. Biden is trading one lifetime appointment for two temporary appointments, which is obviously bad. But it’s even worse because McConnell cannot actually stop Biden from appointing whomever he wants to fill the US Attorney seats. It is only by Senate convention (not a law, not even a “rule”) that senators get to tell the president whom they’d like to see nominated as US Attorneys for their states. It’s a convention that Donald Trump regularly ignored while in office. All Biden needs is 51 votes in the Senate to get his picks from Kentucky confirmed, not the specific consent of McConnell and Rand Paul.
If Biden goes through with the “deal,” he will be putting up a forced-birth judge (at a time when the whole country should be rallying against forced-birth judges) in exchange for McConnell’s pointless blessing of two temporary appointments McConnell cannot stop anyway. It’s like allowing my 9-year-old to drop out of school in exchange for taking a bath when I could just dunk the kid in water and then tell him to get his narrow ass on the bus.
Meanwhile, Biden and Senate Democrats are on track to leave 60 judicial vacancies open by the end of the year, effectively inviting a post-midterm Republican-stacked Senate to block all future judicial appointments. Biden and his administration exceeded expectations when it came to filling judicial vacancies during their first year in office, but their efforts in year two have stalled, for no appreciable reason. That Biden is even willing to entertain a “deal” with McConnell for prosecutors who can be fired by the next administration while leaving judicial vacancies open until after the midterms defies reason and screams incompetence.
Meanwhile, Biden keeps asking for more votes. He would have us believe that nothing can be done unless Democrats have a bigger majority in the Senate, but then he doesn’t do anything to help people overcome the voter suppression laws enacted by Republicans in multiple states.
Biden’s approach reminds me of George McClellan, the commander general of the Union Army for the first part of the Civil War. McClellan always wanted more: more troops, more time, more training. When he took the field, he was slow and turned every stalemate into a loss, and every loss into a retreat. He didn’t want to fight with the army he had, and he kept waiting for Lincoln to furnish him with a bigger one. McClellan almost lost the war, but before that could happen, Lincoln fired him. Lincoln kept firing generals until he found one who knew how to win.
Lincoln fired generals and Roosevelt threatened to pack the court because that’s what great presidents do: They find a way. When their people are under attack, when the public is suffering, when lives and livelihoods are threatened, great presidents find a way to do something to fight back.
Forgettable presidents find a way to do nothing.