What to Know in Washington: Barrett Enters Fray of Legal Battles

Newly confirmed U.S. Supreme Court Justice Amy Coney Barrett will immediately be embroiled in some of the nation’s biggest legal battles, including cases that could determine whether the president who nominated her gets four more years in the White House.

The 48-year-old Barrett, who will take her seat just a week before Election Day, joins a court already deliberating pending voting disputes from North Carolina and Pennsylvania. She could play a pivotal role in any post-election legal fights, and will take part when the court hears a challenge to the Affordable Care Act a week after the election.

The Republican-controlled Senate confirmed Barrett on an almost party-line 52-48 vote last night. Barely an hour later, she appeared alongside a beaming President Donald Trump at the White House, where arch-conservative Justice Clarence Thomas administered one of the two required oaths of office.

Barrett, who can start work today after she takes her second required oath in a private ceremony at the court, vowed to stay above politics.

“The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences,” Barrett said at the White House.

Never before has a justice joined the Supreme Court so close to an election — or with a president openly saying he might need the new member’s vote to win another term. Barrett was studiously noncommittal when Democrats asked at her confirmation hearing whether she would disqualify herself from cases over the election. Federal law gives justices broad latitude to decide when to recuse.

The Supreme Court is already addressing pre-election skirmishes over the rules for casting and counting ballots in the contest between Trump and Joe Biden, the Democratic nominee. Just minutes before the Senate confirmed her, the court issued a 5-3 decision rejecting a Democratic attempt to revive an extension for the receipt of mail ballots in Wisconsin. Read more from Greg Stohr.

Photographer: Al Drago/Bloomberg
Justice Clarence Thomas administers the judicial oath to Amy Coney Barrett at the White House on Monday.

High Court Rejects Democrats on Wisconsin Ballot Deadline: The Supreme Court rejected Democratic calls to reinstate a six-day extension for the receipt of mail ballots in Wisconsin, a state that is experiencing a surge of Covid cases and could be pivotal in the election. The 5-3 rebuff means ballots must be received by Election Day to count in the state. Democrats were seeking to revive an extension that was ordered by a federal trial judge and then blocked by an appeals court. The court’s three liberals dissented. Read more from Greg Stohr.

Biden Rules Out Term Limits for Supreme Court Justices: Biden yesterday ruled out considering term limits for Supreme Court justices, an idea suggested by some who want to see changes to the court. “It’s a lifetime appointment. I am not going to attempt to change that at all,” Biden told reporters. Biden said last week that, if elected, he’d launch a 180-day study of potential changes to the court. But his latest remark appeared to cross one option off the list. Read more from Jennifer Epstein.

Happening on the Hill

Floor Schedule: The House is scheduled to meet at 10 a.m. for a pro forma session. The Senate adjourned last night until Nov. 9, and will hold a pro forma session today at 11:30 a.m.

Lame-Duck Session Best Shot for Covid Aid: Timing for another pandemic relief package largely hinges on the outcome of the election, those tracking talks say—a deal would be unlikely if Democrats take control of the Senate or if Joe Biden wins the presidency. Republican aides said there will be little incentive for Senate Republicans to back a deal in that scenario, with many of them already skittish about more deficit spending. Senate Finance Committee ranking member Ron Wyden (D-Ore.) said in an interview yesterday that he agrees.

“The lame duck agenda depends largely on the outcome of the election,” Wyden said. “If my choice wins, Vice President Biden, it’s hard to see Mitch McConnell supporting another penny of stimulus.” Speaker Nancy Pelosi (D-Calif.) and Treasury Secretary Steven Mnuchin spoke yesterday, but failed to reach agreement. The two sides still disagree over language for a national coronavirus testing and tracing program, Colin Wilhelm reports.

Related: Stimulus Hopes Put On Hold Until After Election as Senate Leaves

House Democrats Set Education Agenda: House Democrats would authorize $261 billion over 10 years to protect jobs at K-12 schools, an education priority for the post-election session and next Congress. More than 585,000 public education positions were eliminated this year after the coronavirus pandemic hit the U.S. That number could grow to almost 2 million in the next two years as states grapple with massive budget shortfalls, teachers’ unions say. The Democrats’ proposal, outlined today, would dramatically expand on the CARES Act, which provided $13.5 billion to K-12 schools. Read more from Andrew Kreighbaum.

Elections & Politics

BGOV’s Races to Watch—Election Webinar: Join Bloomberg Government this Thursday at 1 p.m. for an election webinar on Nov. 3’s biggest House and Senate races to watch. Bloomberg Government reporters Greg Giroux and Emily Wilkins will discuss the current state of Congress, the changing landscape in Washington, and more. Register here.

Trump Pins Hopes on Rallies: Trump’s push for a second poll-defying victory is relying on a hallmark of his first — raucous campaign rallies that Trump sees as a crucial sign of voter enthusiasm but that pollsters say may only be cementing his defeat. Trump held three rallies yesterday, all in Pennsylvania, with three more scheduled today and as many as five or six a day expected by the weekend. The rallies befit the showman with roots in reality television: blaring music, slick production, video montages, warm-up speeches, Air Force One as a backdrop and the president himself as the headline attraction. Attendees erupt in screams and cheers at his arrival, and local Republicans say it’s unlike any political event they’ve seen.

Trump has held five rallies each in Florida and Pennsylvania since his recovery from the coronavirus, more than in any other states, along with repeat stops in North Carolina, Wisconsin and Arizona. Biden has kept a limited travel schedule, holding two events since last Thursday’s debate. And when he does, they are sparsely attended by design, often staged as drive-in rallies, to prevent the spread of coronavirus.

Biden is leading Trump by about 8 percentage points in national polls, according to RealClearPolitics. The two are essentially tied in Florida, a critical state to each one’s potential victory, and Biden has small leads in most battleground states. Read more from Josh Wingrove.

Still, Biden is picking up the pace of his campaign travel as the race enters its final week, announcing plans to hit traditional battlegrounds as well as some states that seemed out of reach until recently. The Democratic presidential nominee will visit Iowa and Wisconsin on Friday, adding to a travel schedule that includes a visit to newly competitive Georgia today and a trip to Florida on Thursday. But the pace of his travel still pales in comparison to Trump, Jennifer Epstein and Tyler Pager report.

Biden Rebuffs Trump’s Claim He Plans to End Fracking: Biden reiterated to Pennsylvania voters that he wouldn’t end fracking, as he pushed back against repeated accusations from Trump that he intended to curtail a vital industry in the battleground state. “Let me make it clear: I’m not shutting down oil fields, I’m not eliminating fracking,” Biden told reporters in Chester, Pa. “I’m investing in clean energy, and we’re going to make sure we don’t continue to subsidize the oil companies.” Read more from Misyrlena Egkolfopoulou.

States Weigh How Candidates Chosen: Far down the Florida ballot, well below the polarizing choice for president, voters are being asked to sideline party affiliation entirely when it comes to future state leaders. Switching to an all-in-one primary for state-level offices in Florida is one of several big decisions Americans will make about how they choose their state leaders. Two other states are considering giving second-choice candidates a chance. “We think voters are sick of voting for the lesser of two evils,” said Greg Dennis, policy director of Voter Choice Massachusetts, a group advocating for ranked-choice voting in that state. Read more from Jennifer Kay and Adrianne Appel.

New York State Democrats See Opportunity to Curb Veto Clout: Democrats are positioned to pick up a second supermajority in the New York Legislature, giving lawmakers leverage against Gov. Andrew Cuomo (D) when it comes time to negotiate hard choices about taxing and spending. Cuomo has had a sometimes-cooperative, sometimes-contentious relationship with the legislative branch of government, clashing over education, how to spend new revenue if recreational marijuana becomes legal, and other priorities. Democrats already have a supermajority in the state Assembly, and could do the same in the Senate by adding two seats in the Nov. 3 election, plus keeping the 40 seats they hold in the 63-district Senate. Read more from Keshia Clukey.

The Coronavirus Pandemic

‘Surge’ Virus Testing Targets Asymptomatic in Latest Push: Missouri, Kentucky, Utah, and South Dakota will be the next states to get “surge” virus testing sites as Covid-19 cases in the U.S. rise and federal officials push for “smart testing” strategies. Officials last week opened up federal testing sites in North Carolina and Wisconsin and are ready to deploy eight more sites once they get states’ approvals, Brett Giroir, an assistant health secretary leading the Trump administration’s testing efforts, told reporters. Though “surge testing” in hot spots isn’t new, this is the biggest deployed to several states at once. Jacquie Lee and Emma Court have more.

  • Deborah Birx, the White House coronavirus response coordinator, “painted a pretty stark picture” of the dangers associated with rising cases in the Midwest during a visit to Minnesota, Gov. Tim Walz (D) told reporters yesterday. “She couldn’t have been clearer,” he said. “Her message was this: cases are rising across the upper Midwest and Minnesota is no exception.” Read more.
  • The Minnesota Department of Health has linked coronavirus outbreaks across the state in September to three Trump campaign events and a protest at one of the president’s rallies. In all, at least 23 Covid cases and two hospitalizations stemmed from the events; four additional cases were traced to the protest. Read more from Emma Kinery.
  • Louisiana’s governor filed a lawsuit in state court yesterday to defend a mask mandate and other restrictions to slow the spread of Covid-19 after Republicans in the state House of Representatives moved to try to end them, Jennifer Kay reports.
  • Caught between a rampaging pandemic and a vocal segment of citizens who aren’t inclined to listen when the government tells them what to do, Idaho’s governor yesterday sought middle ground by taking a step back in the state’s phased reopening, Paul Shukovsky reports.

Push for Vaccine Raises Risk Virus Will Linger: The U.S. strategy to rely on vaccines and treatments, rather than emphasizing social distancing, masks and testing nationwide, threatens to delay the return to normal life for Americans. While the U.S. has committed more than $10 billion to develop new shots to fight Covid-19, about half of Americans say they are wary of taking them, according to a Gallup poll reported this month. Meanwhile, any shortfalls in the vaccine program could mean the country will struggle with the virus well into 2023, according to the London-based firm Airfinity. At the same time, cases are climbing as the weather cools and more activity moves indoors. Read more from Naomi Kresge, James Paton and John Lauerman.

  • A seven-week halt to a U.S. trial of the Covid vaccine developed by AstraZeneca and the University of Oxford bumped it from pole position in the race for a protective shot, but it’s still in the leading pack. High rates of infection as the pandemic regains strength and the large numbers of participants in other trials around the world should help keep the vaccine program on course, according to scientists. Suzi Ring has more.

What Else to Know Today

Agencies Aim to Reshape Workplace Anti-Bias Rules: The Trump administration is moving to transform enforcement of workplace anti-bias laws by restricting the Labor Department’s authority to refer complaints from individual workers to the Equal Employment Opportunity Commission and giving the Justice Department heightened oversight. The changes come in the form of an update to an existing memorandum between two of the three agencies, which has yet to be finalized. Charlotte Burrows, one of two Democrats on the EEOC’s five-person leadership panel, said in a statement that the proposal “threatens to undermine the independence of the Commission as the primary federal agency charged with protecting American workers against workplace discrimination.” Read more from Ben Penn and Paige Smith.

  • Trump was sued over an executive order that would make it easier to fire federal workers involved in policy-making decisions. The National Treasury Employees Union, which represents 150,000 federal workers, sued yesterday claiming the executive order was “a textbook example of the president acting contrary to Congress’s express and limited delegation of authority.” Trump’s order instructs federal agencies to review their rosters and place employees with jobs that involve policy-making in a newly created category without protections afforded to most government employees. Read more from Robert Burnson.

Minority Bank Execs Say Regulation is a Threat: The dwindling ranks of minority-owned banks have hung on through a global financial crisis, and now the coronavirus’s disparate impact on the communities they serve. The next threat they see, one they fear could shutter more of them, is regulators. Rebeca Romero Rainey, president and CEO of the Independent Community Bankers of America, says those institutions may not survive the pandemic without “regulatory patience.” Examiners and auditors need to keep in mind that these bankers’ decisions on how who they lend to are different than at other banks because their missions are different, she said. Read more from David Hood.

U.S. Backs Potential $2.4 Billion Sale to Taiwan: The State Department signaled its approval for a possible $2.4 billion sale of land-based anti-ship missiles to Taiwan, a move that’s sure to anger China and raise tensions further between it and the U.S. The Trump administration notified Congress that it backs the proposed sale of as many as 100 Harpoon Coastal Defense Systems including 400 land-based missiles, in a statement yesterday. Tony Capaccio has more.

Pompeo Pushes Closer India Ties: Secretary of State Michael Pompeo has pushed for closer ties with India to confront China’s “threats” to security in the region. The two sides have a lot to discuss, including “our cooperation on the pandemic that originated in Wuhan, to confronting the Chinese Communist Party’s threats to security and freedom to promoting peace and stability throughout the region,” Pompeo said during a visit in the capital New Delhi today. Read more from Archana Chaudhary.

King & Spalding Lands Ex-DOJ Official: Former top Trump Justice Department official Ethan Davis is heading back to King & Spalding as a partner in San Francisco. Davis, most recently the acting assistant attorney general for the civil division, will join the firm’s special matters and government investigations team. Davis left King & Spalding for the Justice Department three years ago before clerking for Supreme Court Justice Neil Gorsuch for the 2017 to 2018 term. He then returned to DOJ where he undertook civil division leadership roles. Read more from Elizabeth Olson.

Halt on WeChat Ban Stays in Place: The Trump administration lost a bid to enforce its prohibitions against the Chinese-owned “super app” WeChat in the U.S. during its appeal of a judge’s ruling that the ban probably violates the free-speech rights of its users. Upholding a trial judge, the U.S. Court of Appeals in San Francisco yesterday rejected the administration’s request for a stay of the preliminary injunction that prevents the administration from enforcing a wide range of measures, including barring the app from Apple and Google’s app stores for U.S. downloads, over purported national security concerns. Read more from Edvard Pettersson.

With assistance from Nancy Ognanovich

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

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