What to Know in Washington: How to Evaluate Supreme Court Picks

  • Biden, Harris to meet with Senate Judiciary Democrats on court pick
  • Schumer readies bill to legalize, tax marijuana ahead of midterms

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Two reported front-runners to become the first Black woman Supreme Court justice have been trial-court judges for most or all of their careers on the bench, raising questions of how to evaluate their rulings.

District-court reversal rates arose during confirmation hearings for one of the top contenders, Ketanji Brown Jackson, who was elevated to the D.C. Circuit last year from the federal district court in Washington, and is likely to be a talking point should she or South Carolina District Court Judge J. Michelle Childs be selected to replace the retiring Stephen Breyer.

Progressive group Alliance for Justice says Jackson’s reversal rate is around 2% and Childs’ is less than 1%, figures which are both lower than other trial-court judges in their circuits.

Reversal rates are an appealing statistic to gauge top contenders who lack experience on a federal appellate court, the position all but one justice in the past 40 years held prior to joining the high court. But judicial-nominations experts say it’s less useful than examining the substance of their opinions since the rates depend heavily on the kinds of cases they hear and the ideological makeup of the circuit court that reviews their work. Looking at the underlying judgments and the reasoning employed gives a richer look into the kind of justice they would be.

The front-frunners are likely to be on the agenda today, when President Joe Biden and and Vice President Kamala Harris meet with Democrats on the Senate Judiciary Committee at the White House to discuss potential nominees. Read more from Kimberly Strawbridge Robinson and Jordan S. Rubin.

Justice Sonia Sotomayor warned that the increasingly political nature of Supreme Court confirmations could further undermine the legitimacy of the third branch of government. “It certainly does feed into the public’s uncertainty. And that has a price,” she said while speaking yesterday during an online event sponsored by the New York University School of Law.

Recent Supreme Court confirmations have been decided along almost purely party lines. Early battle lines over the next nominee have already been drawn, as several Republicans have criticized Biden’s promise to nominate the first Black woman to the high court.

“The more partisan the voting becomes the less belief that the public is likely to have that Congress is making a merits or qualifications-based assessment of judicial nominees,” Sotomayor said. Read more from Kimberly Strawbridge Robinson.

Happening on the Hill

CONGRESSIONAL AGENDA:

  • The Senate meets at 10 a.m. and could vote on a bill to ban forced arbitration for sexual harassment claims.
  • The House is not in session.
  • Click here for a complete list of today’s hearings and markups.

Senate Majority Leader Schumer is bolstering prospects for marijuana initiatives on the Hill by throwing the weight of his office behind them. The Democrat recently said back in his home state that he will formally unveil legislation as soon as April to legalize marijuana and set tax and banking rules to oversee the burgeoning industry. It could be ready for floor action ahead of this fall’s midterms. “As majority leader, I can set priorities. This is a priority for me,” Schumer said at an event with advocates. Read more from Nancy Ognanovich.

Senate Democrats and Republicans said they’ve struck a deal to renew the Violence Against Women Act and that the chamber may take up the legislation after the Presidents Day recess. At a bipartisan Capitol news conference yesterday that featured actress Angelina Jolie, Senate Judiciary Chairman Dick Durbin (D-Ill.) said the bipartisan agreement reached to update the 1994 law has the backing of almost 60 lawmakers, the number needed to overcome a filibuster threat. Durbin expressed confidence that Schumer will soon be able to schedule the VAWA rewrite for floor action. Read more from Nancy Ognanovich.

The fast-moving bipartisan drive to ban stock trading by members of Congress is hitting resistance, with some lawmakers questioning its reach into their families’ business and whether it would discourage public service. Progressive Democrats and conservative Republicans alike have been surfacing proposals with varying degrees of restrictions from requiring securities be put in a blind trust to outright bans on ownership of individual stocks. House Rules Chair Zoe Lofgren (D-Calif.) sent leaders a list of potential issues that need to be addressed in any new trading or stock-disclosure rules, a person familiar said. Read more from Steven T. Dennis, Laura Litvan, and Billy House.

The Biden administration said it wouldn’t fund efforts to distribute free pipes to drug users after Republican lawmakers railed against the idea. Sen. Marsha Blackburn (R-Tenn.) threatened yesterday to prevent quick passage of a short-term government funding bill unless she gets firmer assurances that federal taxpayer dollars aren’t being used to buy drug paraphernalia. Several conservative outlets reported the administration would buy “crack pipes” as part of a harm-reduction program, sparking outrage from Republicans. Read more from Alex Ruoff.

Rep. Jason Smith is joining the race to become the top Republican on the House Ways and Means Committee next Congress, according to a source familiar with his plans. Smith (R-Mo.) yesterday announced he’ll seek reelection, passing on a run for the Senate seat held by retiring Sen. Roy Blunt (R-Mo.). The committee’s current ranking Republican, Rep. Kevin Brady (Texas), is retiring at the end of his term. Reps. Vern Buchanan (Fla.) and Adrian Smith (Neb.) have also set their sights on the top Republican spot on the Ways and Means panel. Read more from Colin Wilhelm.

SENATE ACTION ON NOMINATIONS:

  • The Senate confirmed Judge Leonard Stark to the Federal Circuit, the nation’s top patent court. Stark, a judge on the U.S. District Court for the District of Delaware, was approved yesterday on a vote of 61-35, Perry Cooper reports.
  • The Senate confirmed a new top lawyer for the Treasury Department. Neil MacBride, a former chief counsel to then-Sen. Biden, will be general counsel for Treasury. MacBride was confirmed yesterday by a vote of 61 to 33, Colin Wilhelm reports.
  • Biden’s pick to defend the Department of Health and Human Services against legal challenges, Samuel Bagenstos, moved closer yesterday to full Senate confirmation. The Senate voted 48-47 to allow the confirmation vote to occur without committee action. A final vote on Bagenstos’s nomination could occur at any time, Allie Reed reports.
  • Two Senate panels advanced the nomination of Shalanda Young to be director of the White House Office of Management and Budget. The Senate Budget Committee and Homeland Security and Governmental Affairs Committee advanced Young’s nomination, in addition to the nomination of Nani Coloretti to be deputy director. Read more from Jack Fitzpatrick.
  • Biden’s pick for the top supervisory post at the Fed agreed to sign an broader ethics agreement after GOP senators urged scrutiny of Sarah Bloom Raskin’s work at a financial-technology company that subsequently got access to the central bank’s payments system. Under the agreement, Raskin would extend to four years instead of two any recusals she would be expected to undertake while at the Federal Reserve. Read more from Justin Sink.
  • Raskin tried again yesterday to assuage Republicans’ concerns about her hawkish stances on mitigating climate risks ahead of a vote on her nomination. Raskin, in written responses to senators’ questions, she said she saw “no path” for the Fed to diminish the role of the oil and gas industry. Read more from Steven T. Dennis.

Politics & Influence

Jared Kushner held talks with Saudi Arabia’s de facto ruler and top officials from Saudi Aramco in recent weeks as part of a regional tour that mixed personal travel and business, according to people familiar with the matter. Kushner, son-in-law and former senior adviser to former President Donald Trump, forged a close personal relationship with Saudi Crown Prince Mohammed Bin Salman during the Trump administration. Kushner has traveled widely in the Persian Gulf region in the past few months, said some of the people, who requested anonymity as the matter is private. Read more from Matthew Martin, Jennifer Jacobs and Ben Bartenstein.

Peter Navarro, Trump’s former trade aide, was subpoenaed by the House committee investigating last year’s insurrection at the Capitol. Navarro has acknowledged publicly that he and former Trump adviser Steve Bannon worked on a plan to coordinate with lawmakers on a process to stop the certification of Biden’s victory in the 2020 election. Navarro is the latest member of that administration to be subpoenaed. “More than 500 witnesses have provided information in our investigation, and we expect Mr. Navarro to do so as well,” Chair Bennie Thompson (D-Miss.) said. Read more from Billy House.

Around the Administration

BIDEN’S SCHEDULE:

  • Biden will speak at 12:30 p.m. alongside Health and Human Services Secretary Xavier Becerra in Culpeper, Va., on the administration’s efforts to lower health care and prescription drug costs.
  • Biden and Harris will host Senate Judiciary Committee Democrats at 4:45 p.m. to discuss Biden’s nominee to succeed Breyer.

The Biden administration plans to spend $5 billion over five years to install chargers for electric vehicles, mostly along interstate highways, in an effort to jump-start acceptance of the vehicles. Another $2.5 billion will be doled out in competitive grants focused on rural and underserved communities, according to a joint announcement by the departments of Transportation and Energy. The money is coming from the bipartisan infrastructure bill passed by Congress in November. Energy Secretary Jennifer Granholm and Transportation Secretary Pete Buttigieg plan to unveil the plan in Washington today. Read more from Keith Laing.

Biden promoted the clean energy elements of his stalled spending bill in a session with power company executives, saying his proposals would lower prices, create jobs and render the country’s grid more resilient to extreme weather. “Companies are betting on a clean energy future and the world is betting on American workers to build it,” Biden told executives from some of the nation’s largest utilities who gathered at the White House yesterday. The event comes as Democrats try to find a way to get Build Back Better provisions through Congress piecemeal. Ari Natter, Jennifer Epstein, and Justin Sink have more.

Photographer: Andrew Harrer/Bloomberg
Biden and the executives at the White House on Wednesday.

Biden spoke yesterday with King Salman of Saudi Arabia about ensuring stable energy prices as well as Mideast security, in light of recent attacks by Yemeni rebels, and the status of talks over Tehran’s nuclear program. Amid a broad surge in global energy prices in recent weeks, the two leaders “reiterated the United States’ and Saudi Arabia’s commitment to ensuring the stability of global energy supplies,” according to a White House statement. Read more from John Harney.

Russia and Belarus begin their largest joint military drills in years today, watched closely by the U.S. and Europe amid tensions over neighboring Ukraine. Thousands of troops backed by tanks, fighter aircraft and advanced S-400 missile-defense systems are involved in the “Allied Resolve 2022” exercises in Belarus that run to Feb. 20. They include drills near the border with Ukraine as well as close to Poland and Lithuania, both NATO members. Read more from Aliaksandr Kudrytski and Ilya Arkhipov.

A federal appeals court declined to lift an injunction blocking the Biden administration from enforcing a Covid-19 vaccination requirement for federal workers. The U.S. Court of Appeals for the Fifth Circuit, in a 2-1 vote yesterday, will allow the injunction to remain in place while the court determines whether the vaccine order exceeds the president’s authority. Read more from Maeve Allsup.

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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