What to Know in Washington: Barrett to Face Democrats’ Grilling

Democrats will get their first crack at questioning Amy Coney Barrett today during her U.S. Supreme Court confirmation hearing, where they plan to focus on how she might move the court in a more conservative direction on issues such as health care and abortion.

Asking their pointed questions for American voters to hear, and drawing whatever answers they can from President Donald Trump’s nominee, may be all Democrats can hope to achieve, since Senate Republicans have the numbers and the determination to seat Barrett before the Nov. 3 election.

Democrats say the confirmation of Barrett, a federal appeals court judge who is a former clerk and protege of the late conservative Justice Antonin Scalia, could yield a high court that restricts abortion and consumer rights, relaxes gun restrictions and casts aside the 2010 health-care law known as Obamacare, which provides health insurance to more than 20 million Americans and protects people with pre-existing conditions.

“President Trump and Senate Republicans see the potential to wildly swing the balance of the court,” Sen. Patrick Leahy (D-Vt.) said yesterday, as the committee’s 12 Republicans and 10 Democrats gave their opening statements. “They see the ability to take the courts from being independent to making them instead an arm of the far right and the Republican Party.”

Barrett ended the first of four hearing days with a statement casting herself as a judge who knows how to set aside her personal views and embraces a limited but key role for the federal judiciary. Americans, she said, “deserve an independent Supreme Court that interprets our Constitution and laws as they are written.” Read more from Laura Litvan and Greg Stohr.

Photographer: Alex Edelman/AFP/Bloomberg
Barrett at Monday’s Judiciary Committee hearing.

An Opportunity for Harris: Sen. Kamala Harris (D-Calif.) returned to the Senate Judiciary Committee this week for the hearing, working to balance her instinct for a newsmaking cross-examination of the nominee with the Biden campaign’s need to maintain its steady lead. Harris is one of the most junior members of the committee, but also a Democratic Party standard-bearer as the vice-presidential nominee. She is largely leaving the campaign trail just three weeks from Election Day for what will probably be a futile battle to stop Republicans from confirming Barrett.

The former prosecutor elevated her national platform at the start of Trump’s term with her questioning of Supreme Court nominee Brett Kavanaugh and Attorney General William Barr, propelling her unsuccessful run for the Democratic presidential nomination. But now as Joe Biden’s No. 2, Harris may be inclined to tamp down some of her prosecutorial instincts, wary of alienating voters or endangering the risk-averse Biden campaign’s polling lead, according to people familiar with her planning for the hearing.

She, like some other Democrats, is also participating in the hearing remotely, after several committee members tested positive for the coronavirus last week. That would make it more difficult for her to have any breakout moments, like the viral clips from past exchanges — in particular, her questioning of Kavanaugh on abortion rights when she asked him if he could point to any laws that “give the government the power to make decisions about the male body.” Read more from Tyler Pager.

Explaining Recusal: Senate Democrats demand that Barrett recuse herself from the Obamacare fight and any potential general election legal disputes that could sway the outcome of the 2020 vote should she be confirmed to the Supreme Court. High court recusals are rare, particularly in cases in which the justices have agreed to take up a dispute as is the case of the Affordable Care Act challenge they’ll hear in November soon after the election. Kimberly Strawbridge Robinson offers an explanation of the Supreme Court recusal process and how it might play out with Barrett.

Biden ‘Not a Fan’ of Packing Court: Biden said yesterday that he is “not a fan” of expanding the Supreme Court, his clearest answer on the issue after weeks of dodging the question. “I’ve already spoken on — I’m not a fan of court packing, but I don’t want to get off on that whole issue,” Biden said in an interview with WKRC-TV in Cincinnati. “I want to keep the focus — the president would like nothing better than to fight about whether or not I would in fact pack the court or not pack the court.”

Biden, who served as chairman of the Senate Judiciary Committee during his decades as a senator from Delaware, had expressed opposition to adding to the number of justices on the high court as recently as last year. But the issue gained new traction, especially among progressives, with the push to confirm Barrett, which, would establish a conservative majority on the court. Read more from Tyler Pager.

Elections & Politics

Trump Boasts of Feeling ‘So Powerful’: Trump returned to the campaign trail last night, boasting at a rally in Florida that he felt “so powerful” after his recovery from Covid-19 that he wanted to walk into the audience and “kiss everyone.”

“I am so energized by your prayers and humbled by your support,” Trump said at the outdoor rally at the Orlando Sanford International Airport, where there was little social distancing though some spectators wore masks. “Twenty-two days from now we’re going to win this state, we’re going to win four more years at the White House.” The crowd at one point broke into a chant of “we love you” as Trump renewed his attacks on his Democratic opponent, Joe Biden. “Now they say I’m immune. I feel so powerful. I’ll walk into that audience. I’ll walk in there, I’ll kiss everyone in that audience. I’ll kiss the guys and the beautiful women and the — everybody,” Trump said.

Hours earlier, his doctor said Trump had tested negative for Covid-19 on consecutive days. In a memo released by the White House, Sean Conley, the president’s physician, said the tests, along with guidelines from the Centers for Disease Control and Prevention, informed the conclusion that Trump “is not infectious to others.” Read more from Justin Sink, Mario Parker and Jordan Fabian.

Florida Seniors Could Seal Trump’s Fate: Trump has a lot to worry about right now, but winning Florida should be at or near the top of his list. There’s no realistic path to reelection for him without it. In 2016, Trump carried Florida by crushing Hillary Clinton among voters ages 65 and older, who, exit polls showed, supported him by a 17-point margin. But seniors are a group that’s moved away from Trump during his presidency, and even more so with the onset of Covid-19. Early returns in senior-heavy Florida suggest they may vote in historic numbers. That would seem to be bad news for Trump, whose support among seniors cratered in a recent Quinnipiac University poll. The Oct. 7 poll shows Biden winning seniors by 15 points (55% to 40%), up from a 3-point lead in early September. Read more from Joshua Green.

Texas Ballot Box Restrictions Reinstated: Texas restrictions allowing only a single drop-box for mail-in ballots in each county were reinstated by a federal appeals court that said the governor’s concerns about ballot security outweigh voting-rights activists’ worries that millions of voters won’t be able to safely access the drop-box. The federal appeals court in New Orleans late yesterday sided with Gov. Greg Abbott (R) who on Oct. 1 ordered the shuttering of multiple drop boxes where thousands of ballots in some of Texas’s largest counties were already collected. Read more from Laurel Brubaker Calkins.

Facebook Sees Twice as Much Fake News as 2016: Facebook users are engaging with twice as many “deceptive sites that masquerade as journalism” as they did in the last presidential election year, according to new research. “We found that the level of engagement with articles from outlets that repeatedly publish verifiably false content has increased 102 percent since the run-up to the 2016 election,” according to a report published by the German Marshall Fund yesterday, Ryan Teague Beckwith reports.

What Else to Know Today

What to Watch in Congress: The Senate will hold a pro forma session at 8:45 a.m. The House will hold a pro forma session at 11:30 a.m.

Summers Says Covid-19 Will Cost $16 Trillion: The Covid-19 pandemic will exact a $16 trillion toll on the U.S. — four times the cost of the Great Recession — when adding the costs of lost lives and health to the direct economic impact, according to former U.S. Treasury Secretary Lawrence Summers and fellow Harvard University economist David Cutler. About half of that amount is related to lost gross domestic product as a result of economic shutdowns and the ongoing spread of the virus, while the other half comes from health losses including premature death and mental and long-term health impairments, Cutler and Summers wrote in an essay published online yesterday in in the Journal of the American Medical Association. Olivia Rockeman has more.

J&J Confirms Covid-19 Vaccine Trial Paused: Johnson & Johnson said its Covid-19 vaccine study has been temporarily halted due to an unexplained illness in a trial participant. Jake Sargent, a spokesman for the company, confirmed an earlier report by health-care news provider STAT that the study was paused. Earlier this month, Johnson & Johnson joined the short list of vaccine makers that have moved an experimental coronavirus shot into late-stage human studies in the U.S. Read more from Jeff Sutherland and Riley Griffin.

Study Confirms U.S. Covid Re-infection Case: The first study to investigate the case of a person in the U.S. who contracted Covid-19 twice found re-infection can occur swiftly and the second bout of illness can be more severe. The research, published in the Lancet medical journal, examined the case of a 25-year-old man living in Nevada who became infected with two different genetic variants of the SARS-CoV-2 virus in less than two months. He tested negative twice in between, meaning he’s unlikely to have suffered a single prolonged infection. Read more from Suzi Ring.

Washington Readies One-Two Antitrust Punch on Big Tech: U.S. Attorney General William Barr and Rep. David Cicilline (D-R.I.) are far from ideological soulmates. But in a one-two punch, they’re about to take on the country’s biggest technology platforms and could drive the most significant changes to antitrust law enforcement in decades. Barr, one of Trump’s most loyal cabinet members, is poised to file a monopoly-abuse lawsuit as soon as this week against Google. Cicilline is preparing legislation based on last week’s report alleging wide-ranging antitrust violations by Google, Facebook, Apple and Amazon. While the Justice Department case, which is expected to focus on Google’s monopoly over internet search, could take years to resolve, Cicilline’s legislation could have immediate effect if passed — and could be far more consequential for the tech industry as a whole. Read more from David McLaughlin.

Labor Chief Stirs Culture Wars in Ohio Talk: Labor Secretary Eugene Scalia embraced religious freedom and preserving American tradition from cancel culture during a speech in Ohio that echoed Trump re-election themes without mentioning the economic crisis that’s causing record joblessness. At an event yesterday billed as a Columbus Day commemoration, Scalia praised the origins of the national holiday as a symbol of religious inclusiveness. While acknowledging the contributions of American Indians and the sins of Christopher Columbus as a slave owner, Scalia took aim at activists who have toppled multiple statues of Columbus and other historical figures this year. Read more from Ben Penn.

Justices to Hear Assault Case from Military: The U.S. Supreme Court will hear arguments today over prosecuting sexual assault in the military, in a clash between #MeToo-era accountability and the rights of the accused in a system that has struggled to give survivors justice. Read more from Jordan S. Rubin.

Protesters Take Cellphone Footage to Courts: Video footage taken by protesters, bystanders, and legal observers is becoming a significant source of evidence for a wave of civil lawsuits alleging that law enforcement across the country met recent Black Lives Matter and other protests with unconstitutional shows of force. Read more from Brian Flood.

To contact the reporter on this story: Zachary Sherwood in Washington at zsherwood@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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