The Morning Dispatch: ACB Looks Inevitable

Happy Tuesday! For weeks, Joe Biden avoided giving a straight answer on court packing. Monday morning, TMD writes an item about his repeated equivocation. Monday evening, Biden finally cracks and tells WKRC in Cincinnati that he’s “not a fan of court packing.” We get results, folks.

Quick Hits: Today’s Top Stories

• The United States confirmed 41,586 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 4.1 percent of the 1,003,578 tests reported coming back positive. An additional 284 deaths* were attributed to the virus on Monday, bringing the pandemic’s American death toll to 214,061. (*Due to either a glitch or the reclassification of existing deaths, the cumulative death count on the Johns Hopkins Dashboard decreased by about 700 yesterday. We’ve reached out to the dashboard’s creator for clarification, but in the meantime pulled the 284 daily figure from the COVID Tracking Project.)

• European Union foreign ministers approved new sanctions against Russia in response to their suspected poisoning of prominent opposition leader Alexei Navalny. A Soviet-era nerve agent, Novichok, was discovered in Navalny’s system last month.

• A U.S. District Judge upheld a Minnesota state court agreement authorizing absentee ballots to be counted up to seven days after election day. The extension decision diverges from a recent federal appeals court decision in Wisconsin.

• A study measuring the efficacy and safety of Johnson & Johnson’s COVID-19 vaccine has been paused due to “an unexplained illness in a study participant.” Such pauses are not uncommon, and the 60,000-person clinical trial could resume in a few days if the issue is resolved.

• Facebook announced it will expand its hate speech policy to prohibit content that “denies or distorts the Holocaust,” citing “the well-documented rise in anti-Semitism globally and the alarming level of ignorance about the Holocaust, especially among young people.”

• Hours before President Trump took the stage at a rally in Florida, White House physician Dr. Sean Conley released a memo saying Trump had tested negative for coronavirus “on consecutive days.” 

A Predictable Confirmation Hearing

In yesterday’s Morning Dispatch, we previewed Amy Coney Barrett’s confirmation hearing, writing that 1) senators will grandstand and try to score political points, 2) Republicans will be itching for a culture war over the Supreme Court nominee’s faith, and 3) Democrats will instead focus their energy on process complaints and Barrett’s previous comments about the Affordable Care Act. Well, we watched the first day of the hearing, and—not to toot our own horn—we were three for three.

Because the hearing played out so predictably (and it was “so boring,” as Sarah pointed out on yesterday’s Advisory Opinions), we’ll keep our wrap short and fill in some blanks for you.

1. Senators on both sides of the aisle did a lot more talking than listening.

The hearing started early—around 9:00 a.m. ET—but Barrett herself didn’t speak until just before 2:00 p.m. Why? Because all the members of the Judiciary Committee had to get in their made-for-TV opening statements first. Barrett and her family sat silently for several hours as Republicans touted her credentials and Democrats voiced their concerns about the process and her ascension to the highest court in the land.

Committee chairman Sen. Lindsey Graham praised Barrett as being in “a category of excellence,” and said she is someone “the country should be proud of.” 

“On any measure Judge Barrett’s credentials are impeccable,” Sen. Ted Cruz said, pointing out the American Bar Association deemed her “well qualified” in a letter to the committee this week. “So what is it that our Democratic friends have focused on? Well, one thing they’ve focused on is history. And they claim the fact that this nomination is occurring at all is illegitimate. Doesn’t matter who Judge Barrett is. … The timing of the nomination, our Democratic friends tell us, makes it illegitimate.”

That is indeed a large part of what Democrats focused on. “There’s nothing about this that’s normal,” Sen. Cory Booker said in his opening statement. “It’s not normal that Senate Republicans are rushing through a confirmation hearing, violating their own words, their own statements. Betraying the trust of the American people and their colleagues.”

“This hearing has brought together more than 50 people to sit inside of a closed door room for hours while our nation is facing a deadly airborne virus,” Sen. Kamala Harris said via video chat from her office. “Senate Republicans have made it crystal clear that rushing a Supreme Court nomination is more important than helping and supporting the American people who are suffering from a deadly pandemic and a devastating economic crisis.”

2. Republicans were prepared to make Barrett’s faith an issue.

As we noted yesterday, Sen. Dianne Feinstein got in hot water during Barrett’s circuit court confirmation hearing three years ago when she employed a controversial line of questioning related to the nominee’s faith. Republicans didn’t let her forget it.

“Religious liberty is the default assumption of our entire system, and because religious liberty is the fundamental 101 rule in American life, we don’t have religious tests,” Sen. Ben Sasse said in his remarks. “This committee isn’t in the business of deciding whether the dogma lives too loudly within someone. This committee isn’t in the business of deciding which religious beliefs are good and which religious beliefs are bad and which religious beliefs are weird.”

Sen. Josh Hawley referenced all the “liberal media … hit pieces” on Barrett in his opening statement, before turning to Sen. Kamala Harris’ history of questioning nominees on their membership in the Knights of Columbus. “Let’s be clear about what this is,” he said. “This is an attempt to broach a new frontier, to set up a new standard. Actually, it’s an attempt to bring back an old standard that the Constitution of the United States explicitly forbids. I’m talking about a religious test for office.”

“I hope that this hearing will be an open, fair conversation about how Judge Barrett would act as Justice Barrett,” Sen. Joni Ernst told her colleagues. “I am concerned, however, that not everyone involved in this hearing shares that goal. We’ve already seen hints of that over the past few weeks … immediately attacking your faith and your precious family.”

3. Democrats remained on message.

But Democrats didn’t mention Barrett’s Catholicism at all yesterday. Asked by a reporter during a break if any of his colleagues planned to bring up her religion, Minority Whip Sen. Dick Durbin said he “can’t think of a single one” who will.

So what did Democrats talk about? The Affordable Care Act. Over and over and over again.

Most Democrats showed up to the hearing with pictures of constituents who could lose their insurance if Obamacare is struck down by the Supreme Court, referring to these Americans’ stories in their speeches. Harris made note of Myka, an 11-year-old girl from California with a congenital heart defect. “The only reason Myka is able to live her life as she does now is because the Affordable Care Act guarantees that her health insurance cannot deny her coverage or limit her care because it’s too expensive,” she said.

“With this vacancy, President Trump and Senate Republicans see the potential to … accomplish through the courts what they have failed to accomplish in the halls of Congress,” Sen. Pat Leahy argued. “At the top of their hit list is the Affordable Care Act. It is no secret, and it is no coincidence, that Republicans are rushing to confirm Judge Barrett before the Supreme Court considers the latest Republican-led lawsuit to overturn the Affordable Care Act on November 10. The President has promised that any judge he nominates will overturn the Affordable Care Act. For her part, Judge Barrett’s writings have made it unequivocally clear that she believes the law is unconstitutional.”

In a sign of just how far the politics of Obamacare have swung, Republicans pushed back on these charges, adamant that Barrett’s previous comments will have no bearing on how she rules on ACA. “The left is … suggesting Judge Barrett’s confirmation would be the demise of the Affordable Care Act and protections for pre-existing conditions,” Sen. Chuck Grassley said. “That’s absurd. As a mother of seven, Judge Barrett clearly understands the importance of access to health care.” In a debate with challenger Amy McGrath later on Monday, McConnell said that “no one believes the Supreme Court is going to strike down the Affordable Care Act.”

As Sarah and David discussed on Advisory Opinions yesterday, McConnell is right, in a sense. There’s very little chance the Supreme Court strikes Obamacare down in its entirety next month—any decision would likely only affect the law’s individual mandate, which, in any case, is already powerless since it was defanged by the Tax Cuts and Jobs Act in 2017.

But it’s still an odd case for Republicans to make, given that the Trump administration and a coalition of more than a dozen Republican state attorneys general are in the process of suing to invalidate not only the individual mandate, but the law as a whole. “Once the individual mandate and the guaranteed issue, and community-rating provisions are invalidated, the remainder of the ACA should not be allowed to remain in effect,” the Department of Justice wrote in its filing.

4. Both Republicans and Democrats understand what’s going to happen.

Perhaps the most important conclusion from Monday’s hearing was an indication from both sides of the aisle that Barrett’s confirmation is all but inevitable.

“This is probably not about persuading each other, unless something really dramatic happens,” Graham admitted. “All Republicans will vote yes, and all Democrats will vote no.”

“To all Americans, we don’t have some clever procedural way to stop this sham, to stop them from rushing through a nominee,” Sen. Amy Klobuchar lamented. “Let me tell you a political secret: I doubt that it will be a brilliant cross examination that’s going to change this judge’s trajectory this week.”

Barrett’s hearing will continue today, with senators now set to actually ask questions of the nominee.

New York State of Mind

As coronavirus cases begin to tick upwards again across the nation, the nation’s worst hotspot this past spring is seeing another spike: New York City. Over at the site today, Andrew has the details: 

At times over the summer, New York state seemed like it was on the cusp of containing the coronavirus that had ravaged it so brutally during the spring. In recent weeks, however, New York has slid away from its COVID-quashing goals, with new hotspots developing in Brooklyn, Queens, and suburbs just to the north. And Gov. Andrew Cuomo has found himself with a new coronavirus foil: local communities of ultra-orthodox Jews where participation in anti-virus measures like masking and social distancing has sometimes been subpar.

“The cluster is a predominantly ultra-orthodox cluster,” Cuomo told CNN Friday. “The issue is with that ultra-orthodox community.”

Last week, Cuomo cracked down on these communities, slapping heavy restrictions back on schools and houses of worship in places where the new breakouts have emerged. Jewish leaders reacted with dismay, trying (and failing) to block the new restrictions with a lawsuit and describing them as unfairly targeting Jews in particular. Orthodox Jews also took to the streets multiple nights last week, unmasked and in crowds, in protests where they proclaimed themselves “at war” with the state and city government, burned masks, and assaulted at least one person who was taking video of the scene.

The mathematics of exponential transmission make it easy to see why Cuomo would want to nip this new outbreak in the bud. But he has entered the conflict with a brand already tarnished by a number of self-serving and politicized pandemic decisions, most notably his attempt to distance himself from his government’s policy of forcing nursing homes to accept COVID-positive patients to take pressure off hospitals between late March and May:

In July the state Health Department released a study—reviewed and edited by Cuomo’s office—insisting it wasn’t the reintroduction of COVID-positive patients that kicked off the nursing home crisis, but staff accidentally bringing the virus with them to work.

That study was savaged by a cornucopia of epidemiologists and other public health experts, who said it failed to actually assess the effects of the order and wouldn’t pass muster in a scientific publication. But Cuomo has nevertheless repeatedly insisted that it proves his office acted rightly. Nothing but “ugly politics” was behind “this political conspiracy that the deaths in nursing homes were preventable,” he said in July. A spokesman for the governor doubled down on the claim: “We’re used to Republicans denying science but now they are screeching about time, space, and dates on a calendar to distract from the federal government’s many, many embarrassing failures. No one is buying it.”

This month, Cuomo had evolved to saying that the policy never went into effect at all: “It just never happened in New York where we needed to say to a nursing home, ‘We need you to take this person even though they’re COVID-positive,’” he said during an October 1 press call. “It never happened.”

Worth Your Time

• Now that the Lakers are NBA champions, the Orlando “bubble” is closing up shop. Ben Golliver—The Washington Post’s man on the inside—put together an insightful reflection on the strangeness of the bubble, sharing the odd trepidation he feels about returning to the outside world. “Depending on the hour, it was whimsical or grueling, exhilarating or disheartening, bustling or tedious, sunny or stormy… there’s a sadness in knowing that all future reporting assignments will pale in comparison,” he writes. He makes clear the bubble “wasn’t summer camp, and it wasn’t glamorous,” but details the strange habits he and other occupants picked up, from pickleball games to endlessly walking a one-and-a-half mile loop around the grounds. “The onerous rules have made me feel immune to the coronavirus, and I must reacclimate to an outside world where more than 213,000 Americans have died and the president has been hospitalized,” he concludes. “Liberation from the bubble means once again becoming captive to the germs.”

• Court packing is in the air these days, and while there hasn’t been an attempt to do the deed at the federal level since FDR, Hank Stephenson, writing for Politico, looks at a place where there has been. Arizona’s Supreme Court stood at five judges for 56 years, until the Republican-led state legislature passed a bill allowing GOP Gov. Doug Ducey to appoint two new judges in 2016, bringing the court’s total to seven. The appointments “eliminated the court’s progressive caucus and swung it from a more moderate conservative tilt to one that emphasizes libertarianism, populism, and law and order, in line with Ducey’s own views,” Stephenson writes. And Arizona isn’t alone. “According to Duke University law professor Marin K. Levy, at least 10 states have attempted to change the size of their courts over the past decade, with Arizona and one other state—Georgia—succeeding,” Stephenson notes. “Most of these efforts were spearheaded by Republicans.”

• Donald McNeil, the New York Times’ science and health reporter focusing on plagues, has become a household name for many over the past several months; many credit his February 27 appearance on The Daily podcast with waking them up to the pandemic to come. But in a piece published yesterday, McNeil shares some measured optimism on the prospect of the pandemic abating sooner than he once thought. The “cavalry”—in the form of monoclonal antibodies and vaccines that are at least somewhat effective—will start arriving in the next several months, he notes. Monoclonal antibodies will help blunt the coronavirus’ impact until all Americans are vaccinated. Dr. Moncef Slaoui, the head of Operation Warp Speed, believes that by February the United States will be producing 80 to 90 million vaccines a month. But “even if the cavalry is in sight, it is not here yet,” he writes. As parts of the country face a new wave of infections, McNeil argues we need to hunker down for the final push. “Masks and caution are our best alternative” until widespread vaccination occurs, he concludes. “One more mission lies ahead: to make sure this does not happen again.”

Something Fun

How come when our neighbors knock on our door in the middle of the night it’s never to tell us we’ve won a Nobel Prize?

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• It’s the witching hour for the presidential election, folks, and boy does our former three-time presidential campaign staffer have some thoughts. In Monday’s edition of The Sweep, Sarah discusses the record number of early votes in key states, the general irrelevance of third party candidates in this election cycle, and Biden’s polling leads in Arizona, Florida, and North Carolina. After a deep dive into several congressional Republicans’ reelection prospects, Andrew helps us answer the million dollar question regarding Maine’s Senate race: Is Susan Collins a Republican?

• All things considered, the first day of the Senate Judiciary Committee’s confirmation hearings for Amy Coney Barrett was relatively uneventful. Our Advisory Opinions hosts argue that boredom during these hearings was a win for the Biden campaign’s Do No Harm strategy. Any sound bite attacking Barrett’s religion or character could depress the Democratic candidate’s current 10-point lead over Trump. Check out our latest episode to hear David and Sarah discuss the Affordable Care Act’s lifespan, partisan judicial elections on the state level, and the Capitol Hill Baptist Church lawsuit.

Let Us Know

In light of that Cal Cunningham poll above, what’s a scandal a politician could be caught up in that would actually make you more likely to vote for them?

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

Photograph by Kevin Dietsch – Pool/Getty Images.