Nikki Haley Gets a Puncher’s Chance

In a post on August 14, Panic on the Right, I discussed the dense, academic law journal article by two Federalist Society legal scholars who offered up what seemed to be the off-the-wall theory that Donald Trump was ineligible to run for re-election. Section 3 of the 14^th Amendment, they concluded, prohibits anyone from seeking or holding public office who had taken “an oath to support the Constitution,” and then “engaged in insurrection or rebellion against the [United States] or given aid or comfort to the enemies thereof.”

In addition to the dubious question of applying a rule meant for those who fought for or supported the Confederacy in the Civil War to current politics, there seemed to be the not insignificant problem that Trump had yet to be convicted of anything, nor had he been present at the Capitol. The authors, William Baude and Michael Stokes Paulsen, insisted that neither of those mattered since Trump had been impeached as an insurrectionist, although, inconveniently, he had not been convicted in the Senate either. 

It seemed to me that the real import of the article was not its highly questionable premise but rather its source.  The Federalist Society had been one of Donald Trump’s most passionate supporters, especially since he had taken their recommendations on all three of his Supreme Court nominees and many other judicial appointments as well.  Since it was unlikely that the article had been prepared without the imprimatur of Federalist Society leaders, it appeared that they had decided to turn on him.  If so, it would be an indication that after three straight conservative underperformances in national elections, they thought it was time to cut Trump loose and move on to someone else.  The Koch brothers later took a similar position, pledging tens of millions of dollars to find an alternative candidate.

Section 3 seemed a desperate throw of the dice, but, likely to the authors’ surprise and everyone else’s, the idea began to catch on.  It was given an enormous boost when two legal titans, conservative J. Michael Luttig and liberal Laurence Tribe, supported the theory in a joint article in The Atlantic. While most constitutional theorists remained dubious as to whether such an arcane application of Section 3 would be upheld in court, a combination of liberal and conservative activists decided to press suits in a number of states, one of which was Colorado.

Many court watchers expected the suit to be summarily dismissed.  It was not.  Rather, it survived all challenges and is now before a judge. 

While the outcome of the case is uncertain, if the judge agrees with the premise—after all, former Confederates were also barred without formal convictions—she can prevent Trump from appearing on the Colorado ballot.  Other states may come to the same conclusion.  There are already active suits in Michigan and Minnesota and others are pending in more than a dozen states, some of them, like Texas, Kansas, and South Carolina, conservative bastions. 

Any adverse ruling will be appealed, of course, and could well end up in the Supreme Court.  Although Trump considers his appointments “his” justices, to date he has not had a whole lot of luck with them and, given the uncertain loyalty of many deep-pocketed Republican donors, it is no sure thing that they would back him here.

It has thus become at least possible that, if conservatives who don’t need his voters are as anxious to be done with him as are the Federalist Society and the Koch brothers, Donald Trump, despite his huge lead in the polls, will not be able to run. 

And so, the race for runner-up has taken on surprising significance.  There are only two entrants who have a realistic shot at taking Trump’s place.  One, Ron DeSantis, has evoked such well-earned distaste that his poll numbers have dropped by two-thirds, a crater that no politician who is not supremely skilled can climb out of.  If DeSantis has demonstrated anything it is that “skilled” is hardly a term that would describe his political abilities.

The other is Nikki Haley.

When she entered the race, many observers, including this one, thought she was in it to audition for vice-president.  With South Carolina’s governorship and Senate seats out of reach, there were not any other alternatives for her to remain a power in national or state politics.

But then, in each of the two debates that Trump chose to ignore, Haley exhibited knowledge of issues, promoted conservative policies without sounding mean or shrill, and, most of all, successfully beat back any of her fellow debaters who dared challenge her.  Her poll numbers began to rise and, in a shrinking field, are likely to rise further.  Nothing bespeaks her success more than that DeSantis has begun to attack her, which, given DeSantis’s rare ability to be thuggish and smarmy at the same time, should only help her.

Now, against all odds, Haley may actually have a chance to win the nomination.  If she does, she will be a formidable opponent for Joe Biden.  Before that, however, she is faced with a decision she, like all her fellow aspirants except Chris Christie, have thus far put off.

What to do about Trump.

He will be in the race for a while, at least. The choice is to take him on, at least to some degree, and risk alienating his base or continue to be slavish and alienate the mainstream Republicans and Independents who will likely be the difference between victory and defeat in swing states.

How Haley plays it, how aggressive she is in distancing herself from Trump, will give an indication of not only what she thinks is the best way to increase her poll numbers, but how serious Republican smart money is about finding a different candidate.  It is a near certainty that she has already been assured of support by some of the nation’s most powerful, and likely least visible, conservatives.  The degree to which she is aggressive in trying to create an alternative to Trump might well provide indications about how committed the Republican donor class is to get rid of him.