What to Know in Washington: Senate Fight Could Delay Court Vote

President Donald Trump’s eagerness for quick confirmation of a new Supreme Court justice will have to be tempered by Senate Majority Leader Mitch McConnell’s need to protect his most vulnerable members.

Senate Republicans, who control the chamber 53-47, are on the defensive in this election. There are 10 Senate seats currently controlled by the GOP that are considered competitive, and three of them are held by members of the Judiciary Committee, including Chairman Lindsey Graham (R-S.C.).

Potentially rancorous confirmation hearings and a vote to replace the late Justice Ruth Bader Ginsburg crammed in before the Nov. 3 election could tie up crucial time that could otherwise be spent campaigning. It also would force endangered incumbents in swing states to cast a contentious vote before Election Day.

That may be a price too high for McConnell to pay to meet Trump’s demand for a confirmation “without delay.”

“There is plenty of time to get this done, but to get it done before Election Day, everything has to work, I think, pretty precisely,” Sen. Roy Blunt (R-Mo.), a member of GOP leadership, said yesterday on CBS’s “Face the Nation” program.

Several White House allies have said the expectation is that confirmation hearings would be conducted before the election with the vote on the nomination coming afterward, in the “lame duck” congressional session.

McConnell can press ahead once he’s certain that at least 50 Republicans are on board. The vote count was bolstered yesterday with Lamar Alexander’s (R-Tenn.) announcement that he’ll support going forward. Democrats had considered Alexander a potential “no” vote because he’s a moderate who is retiring and not running for re-election this year.

Among the Republicans on the Judiciary Committee, Sens. Thom Tillis (N.C.) and Joni Ernst (Iowa) have been narrowly trailing Democrats Cal Cunningham and Theresa Greenfield, respectively, in recent polls. Graham and Democratic challenger Jaime Harrison were tied in a poll last week, in a conservative state where Graham won his previous election by 16.5 percentage points.

One of the most endangered Senate Republicans, Susan Collins (Maine), has suggested the Judiciary Committee could start consideration of Trump’s choice but said the winner of the presidential election should ultimately decide who should fill the seat. Sen. Lisa Murkowski (R-Alaska), who isn’t up for re-election until 2022, joined her in opposing going through with confirmation before the election. Read more from Laura Litvan and Steven T. Dennis.

• Meanwhile, vice presidential nominee Sen. Kamala Harris (D-Calif.) is expected to play a prominent role in the fight against Trump’s nominee, though it’s not clear whether she’ll tear into the pick in the same way she went after Justice Brett Kavanaugh, an appearance that brought her to national prominence. Harris’s seat on the Senate Judiciary Committee gives her the perfect platform to lead the charge against whoever Trump picks. But people close to Biden say the campaign hasn’t decided exactly how to play it. Read more from Jeffrey Taylor and Tyler Pager.

Photographer: Amanda Andrade-Rhoades/Bloomberg

Mourners gather outside a vigil at the Supreme Court, across the street from the U.S. Capitol, where the fight to replace Ginsburg is taking shape.

Ocasio-Cortez, Schumer Team Up for Fight: Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Senate Minority Leader Chuck Schumer (D-N.Y.) joined forces in Brooklyn last night to call for a national mobilization against confirming a replacement for Ginsburg before Inauguration Day. Speaking at James Madison High School, which Ginsburg attended, both Democrats used dramatic terms to describe the potential fallout of replacing Ginsburg with a conservative chosen by Trump.

“We need to make sure that we mobilize on an unprecedented scale,” Ocasio-Cortez said. “This is our entire livelihood that could be shaped by the next 60 or so days,” she said, referring to the period before the Nov. 3 election and the court’s hearing of the case to overturn the Affordable Care Act shortly thereafter. “Our reproductive rights are on the line. Our labor rights are on the line. Our right to health care is on the line,” she added.

Schumer didn’t rule out increasing the size of the Supreme Court if Trump’s nominee is confirmed. “Once we win the majority, God willing, everything is on the table,” Schumer said, referring to elections for the Senate. “If we don’t win the majority, these questions are all moot.” Read more from Steven T. Dennis.

Court Fight Galvanizes Final Sprint of Trump-Biden Race: Trump’s plans to name a replacement for Ginsburg this week offer Joe Biden the chance to galvanize newly energized Democrats, while providing the president a fresh battle in a culture war he’s waged for four years. Early reaction to Ginsburg’s death on Friday suggests Biden stands to gain more politically from the sudden vacancy, as it underscores the stakes of the contest for liberal voters who had been reluctant to endorse his centrist candidacy.

A flood of Democratic fundraising since Friday signals that fear of a generation-long conservative hold on the Supreme Court has rallied support behind the former vice president, and gives Biden a new chance to extend his advantage with younger and female voters who viewed Ginsburg as an icon. In the 48 hours after Ginsburg’s death, donors poured more than $120 million into the ActBlue platform, which processes grassroots donations for Democratic Party candidates and causes. That included $71 million on Saturday alone, shattering the party’s previous one-day record of $42 million.

Republicans did not report any comparable figures over the weekend. Their voters have historically shown higher interest in the court, and may already regard Trump’s re-election as a way to lock in a conservative majority. Yet Trump’s allies sense there could be immediate political advantage for them as well. The coming nomination is a welcome chance to refocus attention on the nation’s cultural divisions, animating conservative loyalists who may have grown cold to the president after months dominated by coverage of the Trump administration’s struggles to combat the coronavirus pandemic. Read more from Justin Sink and Jennifer Epstein.

• Ginsburg’s death means only eight justices would have to decide issues around what’s shaping up to be the most litigated election in American history, with a 4-4 deadlock a distinct possibility. The nation’s highest court has already been asked to rule on voting during the coronavirus pandemic, and it is all but certain to face more legal questions as lower court verdicts are appealed and new cases filed after the election. Ryan Teague Beckwith has more.

What’s Ahead for the Court

Conservatives’ Dreams Move Closer to Reality: The sudden Supreme Court vacancy means that what once were conservative legal fantasies may soon be realistic goals. Overturning the landmark Roe v. Wade abortion rights decision could be only the beginning, if Trump succeeds in appointing a successor. The vacancy could produce the biggest ideological shift of a Supreme Court seat in decades. Greg Stohr breaks down some of the top items on conservative wish lists here.

But Ginsburg’s death leaves the Supreme Court shorthanded heading into a new term with Obamacare and a blockbuster copyright case involving Google in early argument sessions, and more election-related matters likely to come. Conservatives now hold a 5-3 majority on what’s usually a nine member court, although the justices don’t always stay in their lanes. The possibility of evenly split decisions could complicate last-minute election-related challenges and potentially lead to further delay in cases already postponed due to the pandemic. There are two business cases in the new term’s first three days—Carney v. Adams, which has implications for Delaware’s outsized role in American corporate law, and Google v. Oracle, called the copyright case of the century. Read more from Kimberly Strawbridge Robinson.

The Supreme Court shakeup upended assumptions about how the contest will play out, and has raised questions about how an eight-person court might handle a 4-4 tie on something like a contested election result or a consequential case regarding the Affordable Care Act. Daniel Flatley provides some details about the remaining eight Supreme Court Justices.

The Fate of Obamacare: The Trump administration is asking the court to declare the Affordable Care Act invalid and wipe out its protections for people with pre-existing conditions. The court is scheduled to hear arguments on Nov. 10, a week after the election, and probably will rule in the first half of 2021. With Ginsburg on the court, the law’s supporters held a strong, perhaps even unbeatable, hand. She was one of five justices, including Chief Justice John Roberts, who remained on the court after voting in 2012 to uphold the core of the law in a case that raised similar issues.

“I think you have to say that Affordable Care Act is in a more tenuous position today than it was on Friday morning,” said Nicholas Bagley, a health-care law professor at the University of Michigan Law School. “And you can hold that thought and still think that the likeliest outcome is that this very silly lawsuit will be turned away.” Greg Stohr has more on the outlook for the health law.

Trump Pledges to Pick Woman: Appeals court judges Amy Coney Barrett and Barbara Lagoa are emerging as the most likely to be picked after Trump said Saturday at a rally in North Carolina that he planned to select a woman. A third judge, Amul Thapar, had also been in the running until Trump’s comment. All three appeared on a long list of possible high-court picks that Trump updated earlier this month. Read more from David Yaffe-Bellany and Josh Wingrove.

• Biden will refrain from releasing a list of potential Supreme Court nominees, a campaign official said, resisting calls to match Trump’s public roster of potential nominees. Biden has only committed to nominating a Black woman to the high court if he saw a vacancy as president. Read more from Tyler Pager.

Happening on the Hill

Democrats, GOP Near Stopgap Deal: Republicans and Democrats in Congress were closing in on agreement for a stopgap spending measure to keep the U.S. government open after the new fiscal year begins Oct. 1, but a last-minute fight over aid for farms delayed a final bill from release. The bill, which would extend current levels of spending for agencies through Dec. 11, likely won’t be finished until later today.

Speaker Nancy Pelosi (D-Calif.) said yesterday they still hope to fund the government without getting distracted by any of the other political debates dominating the country’s attention. Democrats won’t use the talks on a continuing resolution as leverage in discussions on a replacement for Ginsburg, Pelosi said. Pelosi and Treasury Secretary Steven Mnuchin had also previously agreed to keep funding discussions separate from the negotiations on a coronavirus stimulus bill.

“None of us has any interest in shutting down government,” Pelosi said yesterday on ABC’s “This Week,” when asked about using the stopgap as leverage over the Supreme Court seat. “That has such a harmful and painful impact on so many people in our country, so I would hope that we can just proceed with that. There is some enthusiasm among, some exuberance on the left to say, ‘Let’s use that,’ but we’re not going to be shutting down government.”

Read more from Erik Wasson and Jack Fitzpatrick.

Powell and Mnuchin to Talk Stimulus: Federal Reserve Chair Jerome Powell and Treasury Secretary Steven Mnuchin are set to be grilled by lawmakers tomorrow on the need for more stimulus to shore up the U.S. economy’s recovery from the coronavirus slump. The focus of the House Financial Services Committee hearing will likely fall on fiscal policy, with time running short for Congress to agree on another round of spending measures before it shuts down ahead of November elections.

The $2 trillion bill passed in March helped production and employment rebound after the steepest drops on record. Its impact is now fading, and lawmakers have been deadlocked for weeks over how much more cash to pump in. Read more from Christopher Condon and Saleha Mohsin.

More Elections & Politics

Biden Banks $466 Million to Trump’s $141 Million: Biden started September with a $466 million mountain of cash to take on Trump and the Republicans, completely reversing the GOP’s financial advantage in just four months. In April, Biden, the Democratic nominee, had about $98 million in the bank compared to $255 million for the incumbent. Yet Democratic donor enthusiasm, driven by opposition to Trump and further energized by the selection of Harris as Biden’s running mate, has given the former vice president an unprecedented financial edge for a challenger. Read more from Bill Allison.

Higher Earners Are More Likely to Be ‘Shy’ Trump Voters: Trump has often said that polls underestimate his support. When it comes to higher-income voters and college graduates, at least, that may well be true. A new study by Morning Consult, a survey researcher, finds that people in those two groups are less likely to state support for Trump when surveyed by phone than when answering questions online, where they presumably feel more anonymous. However, Morning Consult couldn’t detect if there was any “shy Trump” effect on the overall poll results. Read more from Peter Coy.

Adelsons Pumped $25 Million Into GOP Senate Super-PAC: Casino mogul Sheldon Adelson and his wife Miriam Adelson gave $25 million to the Senate Leadership Fund, a super-PAC tied to Senate Majority Leader Mitch McConnell (R-Ky.), part of a $37.4 million haul the group raised in August, according to its latest filing with the Federal Election Commission. In addition to the Adelsons, billionaire Steve Wynn, who stepped down from his casino business in 2018 amid sexual harassment allegations, gave $4 million. William Oberndorf of Oberndorf Enterprises, Ronald Cameron, owner of Mountaire, and Beal Bank Chairman Andrew Beal each gave $1 million. Read more from Bill Allison.

Drugmakers Reject Trump’s Senior Savings Cards: The pharmaceutical sector rejected plans by the Trump administration to send one-time drug savings cards to seniors before the November elections. In a deal with the White House, drug firms were expected to spend $150 billion to offset the out-of-pocket consumer costs and co-payments to help elderly Americans, The New York Times reported Friday. The agreement fell through after Chief of Staff Mark Meadows insisted that the companies pay for the $100 cash cards, which would be sent to seniors before the polls, the Times reported. Emma Court has more.

Mississippi Upholds Absentee Vote Limit: The Mississippi Supreme Court on Friday reversed a lower court’s order that could have allowed absentee voting by all voters in the state with health conditions that might put them at risk for greater complications from Covid-19. “Having a preexisting condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purposes,” Associate Justice Dawn Beam wrote in the majority ruling. Read more from Jennifer Kay.

The Coronavirus Pandemic

Covid Grows Less Deadly as Doctors Gain Practice: Covid-19 continues to kill close to 1,000 Americans a day. But for those who develop dangerous cases of the infection, advances in medical care and the growing experience of doctors are improving the chances of survival. Read more from Olivia Raimonde.

CDC Messaging Was Bogged Down by Reviews: A few months ago the Trump administration put in place new procedures to review Centers for Disease Control and Prevention guidelines related to coronavirus, subjecting hundreds of proposed documents and publications to questioning by officials across the administration, according to people familiar with the matter. Since then, officials from across the federal government have been weighing in on nearly every document or website related to Covid-19 advice that the agency has published, the people said. The full extent of the role other federal agencies are playing in shaping CDC recommendations hasn’t been previously reported.

While the additional scrutiny rarely resulted in big changes to the publications by the agency, the people said, it delayed guidance to nursing homes, schools, houses of worship and businesses, sometimes for weeks, as infections soared across the U.S. Read more from John Tozzi.

HHS Offices Need Azar’s Approval for New Rules: Health and Human Services Secretary Alex Azar has barred agencies under his purview, including the Food and Drug Administration, from issuing new rules, The New York Times reported. The FDA is a key agency guiding the decisions in the development of a vaccine, and the Times reported that it was unclear if Azar’s move would change that process. Read more from Todd Shields and Yueqi Yang.

Trump Sees April for Public Vaccine: Trump said his administration expects to be able to vaccinate every American against the coronavirus by April. “We’ll have manufactured at least 100 million vaccine doses” by the end of the year, Trump said at a news conference Friday. “We expect to have enough vaccines for every American by April.” The timetable matches an optimistic forecast from a senior Health and Human Services official, Paul Mango, earlier last week. Mario Parker and Jordan Fabian have more.

What Else to Know Today

Trump Blesses Oracle’s TikTok Deal: Trump gave his blessing to Oracle’s bid for the American operations of TikTok, putting the popular video-sharing app on course to escape a U.S. ban imposed as part of his pressure campaign against China. “I approved the deal in concept,” Trump told reporters Saturday as he left the White House for a campaign rally in North Carolina. “If they get it done, that’s great. If they don’t, that’s OK too.”

The new company, which will be called TikTok Global, has agreed to funnel $5 billion in new tax dollars to the U.S. and open up a new education fund, which Trump said would satisfy his demand that the government receive a payment from the deal. “They are going to be setting up a very large fund,” Trump said. “That’s their contribution that I’ve been asking for.”

Shortly after Trump signaled his approval, the Commerce Department delayed by a week a ban that would have forced Apple and Google to pull TikTok from their U.S. app stores yesterday. Read more from Josh Wingrove, Jennifer Jacobs and Shelly Banjo.

Pompeo Hits Europe on ‘Silly’ Iran Deal, Sets Sanctions: The U.S. said international sanctions on Iran are automatically “snapping back,” in a move that most nations argued the Trump administration doesn’t have the authority to demand since withdrawing from the 2015 nuclear deal two years ago. “Sanctions are being re-imposed on Iran,” Secretary of State Michael Pompeo said in a statement late on Saturday. “The United States expects all UN member states to fully comply with their obligations to implement these measures.” Read more from David Wainer and Tony Capaccio.

• As the United Nations turns 75 this year, the world body keeps churning out increasingly grim reports on the global threats it was created to ameliorate. Biodiversity is being destroyed, climate change is accelerating, war and famine are creating more refugees than ever in human history, the world body warns. And now the Covid-19 pandemic is pushing hundreds of millions back into poverty as renewed lockdowns loom. David Wainer has more.

Trump Pushes to Reap Biometric Data: Six million would-be U.S. immigrants face expanded collection of their biometric data, including iris scans, palm-, and voice-prints, facial recognition images, and DNA, under a proposed federal rule. The Department of Homeland Security also for the first time would gather that data from American citizens sponsoring or benefiting from a visa application. Years in the making, the biometrics immigration rule has garnered more than 160 comments since its Sept. 11 publication. The 30-day comment period closes on Oct 13. A final version could be in place by Inauguration Day. Read more from Genevieve Douglas and Shaun Courtney.

Package With Poison Sent to Trump: A package addressed to Trump last week that contained the lethal poison ricin may have been sent from Canada. The FBI is working with Royal Canadian Mounted Police on investigating the origin of the package, RCMP spokesperson Dan Brien said in a statement. “Initial information from the investigation suggests that the letter originated in Canada,” Brien said, Natalie Obiko Pearson reports.

To contact the reporters on this story: Zachary Sherwood in Washington at zsherwood@bgov.com; Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Loren Duggan at lduggan@bgov.com; Michaela Ross at mross@bgov.com