The Morning Dispatch: Barrett’s Nomination Sets Off Mad Dash for Confirmation

Happy Monday! Congratulations to Magawa, the bomb-sniffing African giant pouched rat, on his award-winning performance uncovering 39 land mines and 28 pieces of unexploded ordnance in Cambodia. 🐀

Quick Hits: Today’s Top Stories

• The United States confirmed 35,627 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 4.4 percent of the 806,258 tests reported coming back positive. An additional 264 deaths were attributed to the virus on Sunday, bringing the pandemic’s American death toll to 204,750.

• President Donald Trump announced his intent to nominate Judge Amy Coney Barrett of the 7th Circuit to succeed the late Justice Ruth Bader Ginsburg on the Supreme Court. The Senate is expected to begin hearings on Barrett’s nomination on October 12.

• The New York Times acquired President Donald Trump’s tax returns from sources “with legal access” to the records. The Times’ analysis, among other things, claims that the president is hundreds of millions of dollars in debt, and paid only $750 dollars in federal income tax in both 2016 and 2017.

• Florida Gov. Ron DeSantis lifted all statewide coronavirus restrictions on Friday, blocking localities from fining citizens for not wearing masks and allowing businesses, including bars and restaurants, to open at full capacity. Local governments can still impose restrictions if justified by health or economic reasons.

• A federal judge granted TikTok’s request for a temporary restraining order on Sunday night, preventing the White House’s ban on the social media app from going into effect.

• Tom Ridge, the former Republican governor of Pennsylvania, endorsed Joe Biden in a column for the Philadelphia Inquirer. He writes, “this year, I believe the responsible vote is for Joe Biden. It’s a vote for decency. A vote for the rule of law. And a vote for honest and earnest leadership.”

• Major League Baseball completed its condensed 60-game regular season on Sunday. After team-wide COVID-19 outbreaks with the Miami Marlins and St. Louis Cardinals early on, the league redoubled its safety efforts and experienced very few hiccups the rest of the way. Playoffs are set to begin tomorrow.

Amy Coney Barrett Is the Pick

President Trump has exhibited a flair for the dramatic throughout, well, his entire adult life. But looking just at the last four years, Trump has often relied on suspense as a governing tactic. Will he sign the budget deal to avert a government shutdown? Tune in at 1 p.m. to find out! 

But when it came to filling the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death, there was no such anticipatory buildup. It was always going to be Judge Amy Coney Barrett of the 7th Circuit Court of Appeals; Trump reportedly told advisers as early as summer 2018 he was “saving [Barrett] for Ginsburg.”

And so at 5 p.m. on Saturday, there was Barrett, standing next to President Trump in the Rose Garden after having flown to D.C. with her family from her home in South Bend, Indiana, earlier in the day. “Should I be confirmed, I will be mindful of who came before me,” Barrett said. “[Justice Ruth Bader Ginsburg] not only broke glass ceilings, she smashed them. For that, she has won the admiration of women across the country and, indeed, all over the world.”

“I clerked for Justice [Antonin] Scalia more than 20 years ago, but the lessons I learned still resonate,” Barrett continued. “His judicial philosophy is mine too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

Trump’s intent to nominate Barrett sets off a mad dash to get her confirmed to the Supreme Court before the election, 35 days from now. As former Senate Judiciary Committee staffer Gregg Nunziata wrote in a piece for The Dispatch last week, Barrett will spend the coming days meeting one-on-one with senators (though several Democrats, including Sen. Richard Blumenthal, have pledged not to play any part in what they view as an “illegitimate sham process”). Her hearing, a Senate GOP staffer confirms, is tentatively set to begin on October 12 and run through October 15, teeing up a final vote on her nomination the week or two prior to election day.

Barring something unforeseen, Barrett should have no problem securing the support of the 50 Republican senators necessary to be confirmed to the bench. “Amy Coney Barrett has proven she would be a fantastic pick for the Supreme Court,” Sen. Tim Scott said in a statement after the announcement. Sen. John Thune said she “is committed to interpreting the law as written and applying it faithfully and impartially.” Majority Leader Mitch McConnell called Barrett “an exceptionally impressive jurist” and a “brilliant scholar at the forefront of the legal academy.”

As we wrote last week, some Democrats responded to Barrett’s nomination to the 7th Circuit in 2017 with controversial lines of questioning about the prospective judge’s Catholic faith. “The conclusion one draws is that the dogma lives loudly within you,” Sen. Dianne Feinstein said. “That’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

Some lefty pundits and Twitter personalities renewed some of these bizarre personal attacks on Barrett over the weekend. Ibram Kendi, the director of the Center for Antiracist Research at Boston University, criticized Barrett for adopting two children from Haiti, claiming white people use adopted black kids “as props in their lifelong pictures of denial.” Vanessa Grigoriadis, a contributor to Vanity Fair and New York Times Magazine, questioned “how a potential Supreme Court justice can also be a loving, present mom to seven kids.”

But actual Democratic elected officials have, at least thus far, steered clear of such slander, distilling their opposition to Barrett down to two main themes: The “unfairness” of Republicans confirming a justice a month before an election after blocking Merrick Garland in 2016, and Barrett’s supposed opposition to the Affordable Care Act.

Barrett “has a written track record of disagreeing adamantly with the Supreme Court’s decisions, on two occasions, upholding the ACA,” Joe Biden said in Delaware yesterday, reiterating his belief that the Senate should not act on the nomination until after the election. Sen. Kamala Harris’ statement did not even mention Barrett by name: “From day one, President Trump made clear that he had a litmus test for Supreme Court Justices,” she wrote. “Destroy the Affordable Care Act’s protections for people with preexisting conditions and overturn our right to make our own health care decisions.”

Barrett has expressed skepticism regarding the Supreme Court’s previous decisions on Obamacare. In a 2017 journal article for Notre Dame Law School, she referenced Justice Scalia’s musings that Obamacare should be renamed “SCOTUScare,” adding that for textualists, “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” She argued Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in the 2012 NFIB v. Sebelius case.

These writings will no doubt thrill many Republicans—and those who prefer strict constructionists—but Democrats are hoping to use the ACA’s popularity (+7 net favorability in this month’s Kaiser Family Foundation’s Health Tracking Poll) to their political advantage. The Supreme Court is set to hear oral arguments in another Obamacare case on November 10, one week after the election.

Additional polls were released over the weekend showing a majority of voters (56 percent in a New York Times/Siena College poll, 57 percent in an ABC News/Washington Post poll) prefer the winner of the election appoint the next Supreme Court justice.

Trump’s Tax Returns Finally Released, Just Not by Him

Donald Trump has been promising to release his tax returns—a customary transparency gesture among presidential candidates dating back decades—for more than four years. “I will absolutely give my return,” he promised at a debate in February 2016. “But I’m being audited now, for two or three years, so I can’t do it until the audit is finished, obviously.”

“I will say this,” he told NBC’s Chuck Todd during the Republican primary. “I hate what they do with our money. And unlike everybody else, I try to pay as little tax as possible, because I hate what they do with my tax money.”

Well, his tax returns were finally released, and he wasn’t kidding: He does try to pay as little tax as possible. 

But they weren’t released by him. The New York Times published a bombshell report from Russ Buettner, Susanne Craig, and Mike McIntire Sunday, announcing they “obtained tax-return data extending over more than two decades for Mr. Trump and the hundreds of companies that make up his business organization.” The Times added that all the information they received “was provided by sources with legal access to it,” and that the reporters were “able to verify portions of it by comparing it with publicly available information and confidential records previously obtained by The Times.”

If you have the time today, it really is worth reading the whole thing. But here are some of the biggest takeaways:

• Trump paid no federal income tax in 11 of the 18 years examined by the Times, and paid only $750 in federal income tax in both 2016 and 2017, largely by reporting massive losses on businesses he personally owned.

• Trump is responsible for $421 million in loans and other debts, with much of it coming due in the next four years. “Should he win re-election,” the Times writes, “his lenders could be placed in the unprecedented position of weighing whether to foreclose on a sitting president.”

• Trump appears to have reduced his taxable income by paying his daughter Ivanka as a consultant; Ivanka was “treated as a consultant on the same hotel deals that she helped manage as part of her job at her father’s business.”

• The IRS has been engaged in a 10-year audit of a $72.9 million tax refund Trump received in 2010, an investigation he has repeatedly used to justify not releasing his tax returns. He received the refund—amounting to all the federal income tax, plus interest, he paid from 2005 to 2008—by claiming losses of $1.4 billion on some of his “core businesses” from 2008 to 2009. If he loses the dispute, and is forced to pay fees on top of the refund, he could owe the government $100 million.

• Trump received $73 million in revenue from abroad his first two years in office. Most of this was generated at his golf courses in Scotland and Ireland, but $3 million came from the Philippines, $2.3 million from India, and $1 million from Turkey.

Ryan Ellis, a conservative tax lobbyist, argued “consulting fees, legal fees, bad debt deductions, depreciation, charitable contributions, capital losses, passive loss deductions, etc. are part and parcel of what tax returns look like for high income folks. There’s nothing unusual about finding them.” Trump himself acknowledged in the second 2016 general election debate that “of course” he used business losses to avoid paying federal income tax. “I absolutely used it and so did Warren Buffett and so did George Soros and so did many of the other people that Hillary is getting money from,” he continued.

But asked Sunday about the New York Times report in a press briefing, Trump denied it all. “No. No. It’s fake news,” he responded when prodded about the $750 figure. “It’s totally fake news. Made up. Fake. We went through the same stories. You could have asked me the same questions four years ago. I had to litigate this and talk about it. Totally fake news. No.”

Trump said he “paid a lot of state income taxes, too,” and once again promised to release his tax returns once his audit is complete. “I look forward to releasing many things,” he said. “I’m going to release many things, and people will be really shocked.”

The report is sure to become a factor in the campaign, though its political effect will likely be muted. “The people who have been paying attention have long assumed something along these lines is true,” a veteran GOP operative who has worked on multiple presidential campaigns told The Dispatch. “The people who haven’t been paying attention aren’t changing their minds.”

“This won’t matter one bit to the base,” said another Republican strategist who is working on down-ballot races this cycle. But he still thinks it’ll harm Trump. “It will make for a great debate line [for Biden], and the best impact might be on Trump’s own psyche. He hates that people will know this about him.”

Rob Stutzman, a GOP strategist in California, concurred. “The Biden campaign should certainly use the story to fill-in the substance as to what a fraud Trump is,” the anti-Trump Republican told The Dispatch. “It might be fun to see Biden use some of the specifics on Trump Tuesday night and make him have to try to defend.”

The Biden campaign released a bare-bones advertisement late last night comparing Trump’s $750 in federal income tax to the average amount of paid by school teachers, firefighters, construction workers, and nurses, perhaps previewing how Trump’s political opponent will attempt to harness the news.

Worth Your Time 

• In her latest piece for The Atlantic, Caitlin Flanagan asks, “Will Democrats fail the Amy Coney Barrett test?” She takes aim at both baseless assertions that the People of Praise—a charismatic lay community of which Judge Barrett is a member—inspired The Handmaid’s Tale, and liberal concerns over the People of Praise’s teaching that husbands should take authority over the family. “If her faith has put limits on her talent and ambition,” Flanagan writes, “there are few signs of it.”

• Why is it that right-wing populist content is consistently the most widely shared across Facebook’s platform? Democrats argue it’s because Mark Zuckerberg’s company secretly harbors right-wing bias, an assertion most conservatives who follow such things probably find hilarious. Facebook itself has a different explanation: “Right wing populism is always more engaging” because it speaks to “an incredibly strong, primitive emotion” about “nation, protection, the other, anger, fear.” This Politico piece from Alex Thompson provides an interesting look at the various forces at play in the online content moderation debate.

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Toeing the Company Line

• In Friday’s G-File, Jonah ruminates on the question of competence. Has Trump let four years as president shape his reverence for and understanding of the position, or does he expect the institution to mold around his behavior and expectations? According to Jonah, his refusal to commit to a peaceful transfer of power after the election indicates the latter. Consider this thought experiment: “If you’re a basketball coach and you don’t know what a layup is or what someone means when they say ‘set a pick,’ you don’t know the job,” he writes. “If you don’t know how to answer a question about whether you will commit to a peaceful transfer of power—and you’re the frick’n president of the United States of America—you don’t know the job.”

• David’s Sunday French Press breaks down Amy Coney Barrett’s involvement in People of Praise, explaining how such organizations can simultaneously sound so culty to outsiders while being completely unremarkable to people who’ve lived in contact with such institutions. While he continues to believe Trump and Mitch McConnell ought to hold off on confirming Barrett unless Trump wins reelection, he argues that she is an eminently qualified candidate: “Americans can be sure that Trump has nominated a serious conservative scholar and a good and decent person to the highest court in the land.” 

• Be sure to check out the most recent Dispatch Podcast, featuring an interview with Carrie Severino of the Judicial Crisis Network. “We know historically it has been conservatives who are incredibly engaged by the Supreme Court,” Severino argues, because “it’s been conservatives on the receiving end of judicial activism.” 

Let Us Know

Which 2016 plea for applause best matches your personality? Jeb Bush’s infamous “please clap” at a town hall in New Hampshire, or Joe Biden’s recently unearthed “clap for that, you stupid bastards” during a visit to troops stationed in the United Arab Emirates?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@FahlOutBerg), James P. Sutton (@jamespsuttonsf), and Steve Hayes (@stephenfhayes).