What to Know in Washington: Democrats Aim Court Fight at Policy

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Democrats are wading into the confirmation fight over Supreme Court nominee Amy Coney Barrett, aiming to avoid the vitriol that accompanied President Donald Trump’s last court pick and focusing on what they see is a winning election issue — the future of Obamacare.

Party leaders from presidential nominee Joe Biden to Senate Minority Leader Chuck Schumer (D-N.Y.) to Speaker Nancy Pelosi (D-Calif.) delivered the cues for Democrats to follow over the next few weeks as the White House and Senate Republicans speed Barrett through to confirmation.

With little chance to block or hold up the nomination, Democrats are looking to Election Day.

“The clear focus is this is about your health care. This is about whether or not the ACA will exist,” Biden told reporters in Delaware yesterday. “This is about whether or not pre-existing conditions will continue to be covered. This is about whether or not a woman can be charged more for the procedures as a man. This is about people’s health care in the middle of a pandemic.”

The Republican timetable would install Barrett on the court before the Nov. 3 election, putting her on the bench when the justices will review a federal appeals court decision that found part of the original 2010 Affordable Care Act unconstitutional and left doubt about the rest of it. Trump’s administration, along with several Republican-controlled states, are urging the court to say that the law, including its protections for people with pre-existing conditions, is invalid.

The battle lines will be more clearly drawn this week as the White House begins delivering vetting materials followed by rounds of meetings between Barrett and senators. A few Democrats, including Schumer and Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, have already said they will refuse a meeting with Barrett. But others, including second-ranking Senate Democrat Dick Durbin (Ill.), have said they would.

Warnings about Republican threats to the law known as Obamacare were central to the Democrats’ campaign when they netted more than 40 seats to win the House in 2018. As the party eyes the presidency and Senate majority in the midst of a pandemic, they believe health care will again be a winning issue. Read more from Jennifer Epstein and Laura Davison.

Photographer: Stefani Reynolds/Bloomberg
Barrett speaks at her nomination ceremony at the White House on Saturday.

More from the Court

Barrett Signaled Willingness to Go Farther on Guns Than Scalia: Supreme Court nominee Amy Coney Barrett argued against blanket bans on convicted felons possessing firearms in a federal appeals court dissent that has won plaudits from gun rights supporters and raised concerns among gun control advocates. The U.S. Court of Appeals for the Seventh Circuit majority last year upheld the ban in Kanter v. Barr. Barrett’s dissent argued that such blanket bans run afoul of the Second Amendment because there’s no evidence those who commit nonviolent felonies are particularly dangerous.

“There’s much to be said for that argument,” said Adam Winkler of the University of California, Los Angeles, who studies the Second Amendment. But it “clearly puts her well outside the mainstream of judges on this issue,” he said prior to Barrett’s nomination. Read more from Perry Cooper.

  • Barrett’s nomination could make it tougher for environmentalists to wage future legal fights. Barrett has applied a narrow view of standing, the legal bar for bringing a case, in her rulings as a judge on the Seventh Circuit. That’s a red flag for public interest lawyers whose ability to sue over environmental harms has long been under siege by conservatives who favor stricter standing requirements. “She’s going to be another vote to narrow standing, so we could see things switch at a fundamental level,” said Brett Hartl, government affairs director for the Center for Biological Diversity, which frequently litigates over endangered species and other environmental issues. Read more from Ellen M. Gilmer.

Liberals in Limbo With No Ginsburg Successor: The Supreme Court’s liberal wing was outgunned before Ruth Bader Ginsburg’s death. It’s about to get worse. The court’s four liberals managed to eke out some recent wins when conservative justices occasionally crossed over to build majorities. That becomes much tougher with a 6-3 majority, which requires winning over two conservatives.

“With now essentially a 6-3 minority, even if they at times get Roberts or even a Kavanaugh or a Gorsuch—probably not both at the same time—to side with them, there will be few victories,” said Deborah Pearlstein, a professor at Cardozo Law who clerked for the late Justice John Paul Stevens, appointed by Republican Gerald Ford before going on to lead the liberal wing until his retirement in 2010. Read more from Jordan S. Rubin and Kimberly Strawbridge Robinson.

Ginsburg’s Career, Replacement Parallel Thurgood Marshall’s: Thurgood Marshall and Ginsburg both became famous in legal circles as pioneering advocates long before becoming justices, and later helped anchor the Supreme Court’s liberal wing of their respective eras. In death, Ginsburg will have one more thing in common with Marshall, the nation’s first Black justice: being replaced with an ideological mirror-image who may wind up undoing much of what they fought for in their careers and on the court. Clarence Thomas replaced Marshall in 1991, and Trump has nominated Barrett to replace Ginsburg. Read more from Kimberly Strawbridge Robinson and Jordan S. Rubin.

Happening on the Hill

Stimulus Talks Not Dead Yet: Pelosi said there’s a chance she and Treasury Secretary Steven Mnuchin can still reach a deal on a coronavirus stimulus package, and that Democrats will unveil a new “proffer” shortly. “I trust Secretary Mnuchin to represent something that can reach a solution, and I believe we come to an agreement,” Pelosi said on CNN’s “State of the Union.”

She added if a deal isn’t struck soon, Democrats might vote on a House-only version of a coronavirus relief package, including funds for airlines and restaurants, and more Paycheck Protection Program funding. “The public is going to have to see why $2.2 (trillion), or now $2.4 (trillion), perhaps, is necessary,” she said, adding Trump’s “denial of the virus, and resistance to do anything to crush it, has made matters worse.”

Discussion of a potential fresh House vote on stimulus follows weeks of resistance by Pelosi to suggestions from moderate members that Democrats need to show Americans they’ve taken some additional action since passing their Heroes Act in May. Read more from Billy House.

Bipartisan Pilot-Safety Bill Introduced in House: Reps. Rick Larsen (D-Wash.) and Garret Graves (R-La.), the chairman and top Republican of the House Transportation and Infrastructure Aviation Subcommittee, offered legislation that would improve aircraft designs to make pilot errors less likely to be catastrophic following two Boeing 737 Max jet crashes. The government and aviation industry must “thoroughly consider human factors to ensure pilots and flight crews do their jobs safely and efficiently,” Larsen says, Alan Levin reports.

  • American Airlines CEO Doug Parker said there’s sufficient time for Congress to agree on extending $25 billion in federal aid that would prevent layoffs for tens of thousands of airline workers on Oct. 1. American will continue urging Congress to resolve a stalemate and approve the aid as part of a broader economic stimulus package, Parker said yesterday in an interview on CBS’s “Face the Nation.” The approaching deadline could spur action, he added. “I’m confident” the payroll aid will be extended, Parker said. “There’s certainly not much time left, but there’s enough time. Often times, a deadline like this is what is needed to get action. We’re hoping that is the case.” Read more from Mary Schlangenstein.

Elections & Politics

Trump Faces New Scrutiny of Personal Finances: Trump faces renewed scrutiny of his personal finances just weeks ahead of Election Day, after a report raised fresh questions about his business savvy and the integrity of his accounting. The New York Times report, published yesterday, portrayed a president in a financial vise who could potentially turn to investments that could threaten his independence as commander-in-chief. Citing tax documents, it said Trump, a billionaire, paid no income taxes in 10 of the past 15 years and only $750 in 2016 and 2017.

Trump called the report “totally fake news” during a news conference just minutes after it was published. He reiterated that he’d only release his tax documents when an Internal Revenue Service audit was complete — a refrain he has employed since 2016.

The report offered a catalog of potential improprieties — citing tax documents — that threaten to dog the president just as he tries to breathe new life into his struggling campaign with the nomination of Barrett. It also provides Biden with fresh fodder just ahead of the first presidential debate tomorrow night. Read more from Laura Davison.

Biden Wields Edge in Debate Expectations: Joe Biden will take the stage at the first presidential debate of 2020 tomorrow staring at an opponent who’s unwittingly spent the last several months doing him a big favor: lowered expectations for Biden’s performance as they take the stage in Cleveland, Ohio. An even passable performance by the former vice president may come off as a win in a debate that has taken on outsize importance after Covid-19 limited the candidates’ in-person campaigning.

But if the gaffe-prone Biden stumbles or looks even a little bit like the caricature Trump has painted of him, his campaign may be damaged. There are two more presidential debates to go, but first debates—like first impressions—have a way of sticking to candidates. Read more from Justin Sink and Tyler Pager.

Still, political pros on both sides are fretting about a viral moment that can turn a good performance into a disaster that’s remembered for generations. A single ill-advised answer could turn off a crucial demographic in a battleground state. A subconscious gesture could go viral, undermining the candidate’s carefully constructed image. Or the debate could simply prove a missed opportunity when there’s few of them left before the Nov. 3 election.

Biden has to worry about looking confused or unsure, or even interrupting himself to note that his time is up, as he did several times during the primary debates. For Trump, experts are watching how he conducts himself in a format that doesn’t suit his off-the-cuff style — and to see if his boastful lack of preparation leaves him seeming ill-informed against a policy wonk like the former vice president. Read more from Ryan Teague Beckwith.

Washington Judge Hits Postmaster With Election Mail Injunction: A federal judge in the nation’s capital is the latest to order the Trump administration not to implement policy changes that could delay mail delivery for voters in the election. U.S. District Judge Emmet Sullivan in Washington, D.C., issued a preliminary injunction in a case led by New York Attorney General Letitia James and joined by New Jersey and Hawaii, along with New York City and San Francisco. Read more from Peter Blumberg.

Trump Considered Daughter as 2016 Running Mate: Donald Trump repeatedly discussed with advisers the idea of naming his daughter Ivanka as his running mate in 2016 before settling for Mike Pence, according to a former Trump campaign aide who became a star witness in Special Counsel Robert Mueller’s investigation. Rick Gates, who in the summer of 2016 was Trump’s deputy campaign chairman, describes in a new book how Trump — wary of the “Never Trump” sentiment in the Republican party and still stinging from his competitors’ attacks during the GOP primary — deliberated for about a month on a vice presidential candidate he could trust completely. Read more from Jennifer Jacobs.

Carson Unhappy With Trump’s Hiring Manager: Housing and Urban Development Secretary Ben Carson is not happy with the White House office that places political appointees in government agencies. Carson inadvertently let reporters see notes on his podium as he spoke in Atlanta. “I am very loyal to you and after you win I hope to stay in your administration,” the notes said. “I am not happy with the way PPO is handling my agency.” Read more from Justin Sink.

Trump Aide Parscale Detained After Threat to Harm Self: Trump’s former campaign manager Brad Parscale was detained by police in Fort Lauderdale, Fla., yesterday after barricading himself in his home and threatening to harm himself, according to a police statement. Fort Lauderdale police said they went to Parscale’s home about 4 p.m. local time after receiving a 911 call about an armed man who was threatening suicide. Parscale’s wife told the officers who responded that her husband had access to multiple firearms. Read more from Jennifer Jacobs and Justin Sink.

Delayed House Race to Get Tighter: Candidates in a Minnesota swing district will get an additional three months to make a pitch to voters before a February special election, an unusual situation that likely benefits the GOP challenger to freshman Democrat Angie Craig. Instead of being held Nov. 3 like the rest of the House, the 2nd district’s election will occur Feb. 9, as Minnesota law requires when a major-party nominee dies within 79 days of Election Day. Read more from Samantha Handler and Emily Wilkins.

Defense & Foreign Affairs

U.S. Warns Iraq It May Shutter Embassy: Secretary of State Michael Pompeo warned Iraq’s prime minister the U.S. may shutter its embassy in Baghdad if the Iraqi government can’t protect diplomats and staff linked to the diplomatic outpost. Pompeo told Prime Minister Mustafa al-Kadhimi in a call Saturday that the U.S. would slash staff at the embassy unless Iraq can halt attacks by Shiite militias that have targeted the U.S. embassy and other assets, according to a person familiar with the matter who asked not to be identified discussing a private communication. Read more from Nick Wadhams.

U.S. Sanctions Said Cost Iran $150 Billion: Iran has lost $150 billion of revenue since Trump withdrew from a 2015 nuclear deal and reimposed sanctions on its economy, President Hassan Rouhani said. The U.S. measures are also hindering imports of medical and food supplies, Rouhani said in a statement Saturday. “If people want to curse anyone for problems and shortcomings in the country, it’s the White House,” Rouhani said. Read more from Arsalan Shahla.

TikTok Ban Is Temporarily Blocked: Trump’s ban on TikTok was temporarily blocked by a federal judge, dealing a blow to the government in its showdown with the popular Chinese-owned app that it says threatens national security. After an unusual Sunday morning hearing, U.S. District Judge Carl Nichols granted a preliminary injunction against the ban on new downloads of the video-sharing network, which would have gone into effect at 11:59 p.m. in Washington. The judge declined to grant an injunction on a separate set of prohibitions scheduled for Nov. 12 that are designed to further curb the app’s use in the U.S. Read more from David Yaffe-Bellany and Chris Dolmetsch.

  • The U.S. imposed export curbs on Semiconductor Manufacturing International, Financial Times reports, dealing a new blow to China’s technology sector and sharpening tensions over intellectual property and national security, Kit Rees reports.
  • The Trump administration is maintaining pressure on Chancellor Angela Merkel to exclude Huawei from Germany’s fifth-generation wireless network, though a high-level American official received no guarantees the Chinese supplier would be shut out at meetings in Berlin last week, Patrick Donahue reports.

Chinese Paper Hits Pompeo for Spying Remark: The suggestion by Pompeo that Beijing’s consulate in New York serves as a spy hub stoked outrage in an editorial by the Chinese state-run Global Times newspaper. The editorial said China would retaliate against U.S. diplomats if its envoys were ejected or arrested after comments Pompeo gave to the New York Post this week, which it blasted as a “crude accusation.” Michael Riley has more.

What Kim Jong Un Might Be Planning: After months of relative silence, North Korea has begun to stir in recent weeks, with signs that the regime is preparing for a fresh flourish of military might. That has stoked speculation that Kim Jong Un may be planning an October surprise for Trump before the election. Missile trucks have been seen gathering in Pyongyang, while South Korea media said a possible U.S. visit by Kim’s sister is in the making, Jon Herskovitz reports.

What Else to Know

Early Treatments Could Be ‘Bridge’ to Vaccine: Monoclonal antibodies that stop Covid-19 from spreading in the body are among promising strategies for averting severe illness from the virus before vaccines arrive, according to the country’s top infectious diseases director. Antibody-based medications, other blood products from recovered patients, and antivirals are being investigated for their potential as early treatments, Anthony Fauci said, Jason Gale reports.

FDA Demanded to Keep Away Politics: Prominent scientists took the unusual step of demanding the FDA commissioner publicly guarantee political pressure won’t interfere with the approval process for a Covid-19 vaccine. Their open letter, which was co-signed by two former top Food and Drug Administration scientists, calls on Commissioner Stephen Hahn to reaffirm that science—and not politics—will steer the FDA’s regulatory decisions. Read more from Jeannie Baumann.

Census Worker Accuses U.S. of Defying Court Order: A federal judge demanded an explanation from the Trump administration after a census worker in Texas said the government isn’t complying with a court order not to shorten the time line for completing the once-a-decade population count. U.S. District Judge Lucy Koh in San Jose, Calif., on Thursday blocked the Commerce Department from moving its deadline for data collection from Oct. 31 to Sept. 30 after civil rights groups complained the compressed schedule would result in an undercount of minorities. The administration is appealing her ruling. Read more from Peter Blumberg.

Fannie, Freddie Said Need to Boost Capital Levels: Fannie Mae and Freddie Mac should up their capital toward levels held by banks to shield the secondary mortgage market, the Financial Stability Oversight Council said on Friday in the first use of its new activities-based approach to identifying potential peril to the U.S. economy. Members of FSOC unanimously agreed that Fannie and Freddie’s activities pose such a risk. Read more from Jesse Hamilton and Robert Schmidt.

Schools Win Funding Fight With DeVos: Public education groups ran a victory lap on Friday in a months-long dispute with the Trump administration over the share of government coronavirus relief for private schools. Education Secretary Betsy DeVos won’t appeal a Sept. 4 U.S. district court judge’s decision that said she illegally directed states to divert CARES Act aid from public schools to private schools. Read more from Andrew Kreighbaum.

Hackers Infiltrate Washington State’s Agencies: Hackers have launched a sprawling, multifaceted cyberattack against the state of Washington, according to two people familiar with the matter. The attack infested many of the state’s agencies with sophisticated malware, including one type known as Trickbot, according to the two people, who requested anonymity because they aren’t authorized to talk to the media. Read more from Kartikay Mehrotra and Dina Bass.

Editor’s Note: Sunday’s What to Know in Washington corrected Sen. Lindsey Graham’s name.

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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