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The Morning Dispatch: Bracing for the Barrett Brouhaha
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The Morning Dispatch: Bracing for the Barrett Brouhaha

Plus: Joe Biden is getting pretty tired of you asking whether he'll pack the court.

Happy Monday! Congratulations to the Los Angeles Lakers on their championship and the NBA as a whole for successfully setting up and maintaining a 2.5-month bubble with zero (!) known coronavirus infections among players or team staff. Now LeBron just needs two more rings to catch the 🐐.

Quick Hits: Today’s Top Stories

  • The United States confirmed 42,073 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 4.5 percent of the 943,645 tests reported coming back positive. An additional 388 deaths were attributed to the virus on Sunday, bringing the pandemic’s American death toll to 214,767.

  • The second presidential debate, originally scheduled for October 15, has been canceled. The Commission on Presidential Debates announced late last week the debate would be held virtually due to coronavirus concerns, but the Trump campaign refused that change. The Biden campaign will instead participate in a town hall with ABC News, while the Trump campaign is expected to do the same with NBC News.

  • White House physician Dr. Sean Conley declared President Trump “no longer contagious” in a memo released just over a week after Trump first announced he had COVID-19. The president is due to speak at a campaign event in Florida later today.

  • The Trump administration is pushing again for a coronavirus stimulus package less than a week after President Trump publicly cut off negotiations. National Economic Council director Larry Kudlow told CNN yesterday the administration “may” push for a deal even greater than the $2.2 trillion House Speaker Nancy Pelosi is currently proposing. Senate Majority Leader Mitch McConnell, however, said a stimulus package remains unlikely before the election, and other Senate Republicans reportedly lambasted the proposal on a Saturday call.

  • Hurricane Delta, which made landfall in Louisiana Friday, has left 350,000 in the state without power and flooded large areas. One death was reported Sunday after a man sparked a fire attempting to refuel a generator.

  • Attorney General Bill Barr has told Republican lawmakers that the Justice Department’s review of the Russia investigation’s origins—spearheaded by U.S. Attorney John Durham—will not be released prior to the election. President Trump called the lack of indictments for his political opponents “terrible,” a “disgrace,” and an “embarrassment.”

  • North Korea showed off a new intercontinental ballistic missile at a military parade over the weekend commemorating the 75th anniversary of the ruling Workers’ Party. The South Korean government held an emergency meeting and expressed concern over the reveal of new weaponry, while a senior U.S. official characterized it as “disappointing.”

  • A federal judge in Pennsylvania threw out a lawsuit by the Trump campaign that sought to limit the state’s use of drop boxes for ballots, override state restrictions on poll watchers, and force election officials to reject ballots if the voter’s signature doesn’t match the one on file.

  • The World Food Program—a United Nations agency and the world’s largest hunger-focused humanitarian program—won the Nobel Peace Prize on Friday. Created in 1961 following a proposal by President Dwight Eisenhower, the Food Program last year served nearly 100 million people in 88 countries.

  • Robert Wilson and Paul Milgrom won the Nobel Prize for Economics today, both professors at Stanford University, “for improvements to auction theory and inventions of new auction formats.”

What to Expect When You’re Confirming

The Senate Judiciary Committee will begin its confirmation hearing for Supreme Court nominee Amy Coney Barrett today, giving the GOP 22 days to secure a 6-3 conservative majority on the nation’s highest court before Election Day. Sen. Lindsey Graham, chair of the committee, will preside over the hearings, slated to take place over four days this week. Graham said on Sunday he expects a vote on Barrett’s nomination by October 27 at the latest.

So, what will today look like? After Barrett delivers her opening remarks, a bipartisan panel of 22 Senators will pepper her with questions, ostensibly to gauge her fitness to serve on the Court—but more realistically to grandstand and score political points in front of the Senate cameras. Sen. Kamala Harris—the Democratic vice presidential nominee—intends to participate in the hearings remotely from her D.C. Senate office due to coronavirus concerns. Two of the committee’s Republican Senators—Utah’s Mike Lee and North Carolina’s Thom Tillis—recently tested positive for COVID-19; Graham refused to take a COVID test last week.

Barrett’s opening statement was leaked to several news outlets on Sunday. In it, she will discuss how faith, family, and the late Justice Antonin Scalia have shaped her approach to the law. Barrett will highlight the importance of judicial restraint, a deferential approach to constitutional interpretation that discourages judges from legislating from the bench. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett plans to say. “The public should not expect courts to do so, and courts should not try.”

Barrett’s originalist judicial philosophy was developed under the tutelage of Scalia; she served as his clerk from 1998 to 1999. Following her clerkship and time in private practice, Barrett returned to Notre Dame Law School—where she graduated first in her class five years earlier—to teach law. She and her husband, former Assistant U.S. Attorney Jesse Barrett, now live with their seven children in South Bend, Indiana. President Trump nominated her to the United States Court of Appeals for the Seventh Circuit in 2017; she has served as a judge ever since.

In her statement to the committee, Barrett also plans to honor Sandra Day O’Connor and Ruth Bader Ginsburg, the first two women to serve on the Supreme Court. “I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place,” Barrett will say. “I will be forever grateful for the path she marked and the life she led.” If confirmed, Barrett will be the first mother of school-aged children on the court and the only sitting justice who didn’t attend either Harvard or Yale Law School.

Democrats are mostly powerless to stop Barrett’s ascension to the Court; Republicans have the votes. So instead, they’ll focus their energy on trying to make the Senate GOP pay an electoral price for confirming her before the election.

Senate Democrats are expected to grill Barrett on her judicial philosophy as it relates to abortion, health care, gun rights, and other legal issues. Senate Minority Leader Chuck Schumer on Sunday called on Barrett to recuse herself from any and all Supreme Court cases involving the Affordable Care Act if confirmed, alluding to a paper she wrote in 2017 criticizing Chief Justice John Roberts’s 2012 majority opinion upholding the Affordable Care Act. “Nothing in her opening statement allays the concerns America has that she will overturn ACA and hurt people’s health care,” Schumer said.

Democrats will also likely question Barrett about how her Catholic faith and originalist judicial philosophy play into her view on Roe v. Wade, the 1973 Supreme Court case that established a woman’s fundamental right to get an abortion. Barrett has signed on to at least two anti-abortion advertisements. One, in 2006, said “it’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.”

But on Barrett’s faith, Democrats will have to tread carefully: Any explicit queries about the judicial nominee’s Catholicism may bring to mind Democratic Sen. Dianne Feinstein’s controversial line of questioning three years ago, during Judge Barrett’s Seventh Circuit confirmation hearing. “Whatever a religion is, it has its own dogma,” Feinstein said of Barrett’s Catholic faith in 2017. “I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”

Feinstein’s comments were met with fierce criticism from pro-life conservative activists and Republicans lawmakers alike, many of whom argue that questions about a nominee’s faith amount to “religious tests” for public service, a standard which is explicitly banned by Article 6 of the Constitution. Republican Senator Josh Hawley said on Friday that he plans to renounce attacks on Barrett’s faith during Monday’s hearings. “It’s a form of religious bigotry,” Hawley told Axios’ Mike Allen. “It’s time for every single one of the Democrats on the Judiciary Committee to renounce it and to pledge that they will abide by the Constitution and they will not seek to impose religious tests.”

Vice President Mike Pence also warned of Senate Democrats’ forthcoming attacks on Barrett’s faith. He accused Kamala Harris during Wednesday’s debate of targeting federal district judicial nominee Brian Buescher in 2018 for being a member of the Knights of Columbus, a Catholic fraternal service order. “It’s insulting to suggest that we would knock anyone for their faith,” Harris said in response. But she does have a record of grilling Catholic judicial nominees about their membership in the organization.

Senate Democrats may be cautious about repeating their mistakes on this front, especially since Republicans have been broadcasting for weeks their eagerness for a fight over Barrett’s Catholicism. “You can promise that [Sen.] Mazie [Hirono] will say something crazy,” Sen. Ben Sasse told NBC News a few weeks ago of the Hawaii Democrat. CNN’s Jake Tapper asked Hirono yesterday if she plans to discuss Barrett’s faith during the hearings. “Her religion is immaterial, irrelevant,” Hirono responded. “I am totally focused on what this nominee sitting there as a justice is going to do in striking down the Affordable Care Act. That’s what I’m focused on. I’m not going to be asking her questions about her religious views. They’re irrelevant.”

Surveys conducted immediately after Ginsburg’s death indicated the American people wanted her successor to be appointed by the president sworn into office in January 2021. But more recent polling shows support for Barrett growing. On September 26, Morning Consult poll respondents supported confirming Amy Coney Barrett to the Supreme Court 37 percent to 34 percent. By last week, that margin had expanded to 46 percent to 31 percent. A CNN poll conducted from October 1 to 4 showed it much tighter: 42 percent supported Barrett’s confirmation, 46 percent opposed it.

To Pack or Not to Pack: That is the Question

In the weeks since it became clear Republicans were going to move ahead with filling Ruth Bader Ginsburg’s seat, we’ve noted the Biden campaign’s staggering refusal to answer questions about potential court packing. “It’s a legitimate question,” Biden conceded when asked by Wisconsin Action 2 News. “But let me tell you why I’m not going to answer that question: Because it will shift all the focus. That’s what [Donald Trump] wants.”

Asked point-blank by Chris Wallace in the first (and potentially only) presidential debate, Biden again demurred. “Whatever position I take on that, that’ll become the issue. The issue is the American people should speak,” he said. When Trump interjected to point out his opponent wasn’t answering the question, the former vice president unleashed his (in)famous “Will you shut up, man?”

Sen. Kamala Harris hasn’t done any better. She floundered when questioned on the subject by MSNBC’s Lawrence O’Donnell, and in the vice presidential debate she responded with a non sequitur. “Let’s talk about packing the court,” she said before proceeding to not talk about packing the court. “Do you know that of the 50 people who President Trump appointed to the court of appeals for lifetime appointments, not one is black? This is what they’ve been doing.”

Biden’s non-answers grew more contemptuous over the weekend. “You’ll know my opinion on court packing the minute the election is over,” he said Thursday. Asked a day later if voters deserved to know his stance, Biden shot back that “no, they don’t deserve—” before catching himself and saying “I’m not going to play [Trump’s] game.”

Biden had no qualms answering these sorts of questions last year. “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he told Iowa Starting Line in July 2019. “I would not get into court packing,” he said in a Democratic primary debate last October. “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”

Republicans are pressing the issue. “I just want the record to reflect she never answered the question,” Pence said last Wednesday of Harris’ hemming and hawing. “Maybe in the next debate Joe Biden will answer the question, but I think the American people know the answer.”

“It’s grotesque that Vice President Biden won’t answer that really basic question,” Sen. Ben Sasse told Chris Wallace yesterday. “What they’re really talking about, or refusing to talk about, is the suicide bombing of two branches of government.”

Whether the Biden team’s demurrals stem from a desire to maintain leverage heading into 2021 or from a fear of turning off progressive voters, the outcome is the same: The 64 percent of voters who say Supreme Court appointments are “very important” to their vote in this year’s election don’t know where the Democratic nominee stands on the structure of the nation’s highest court. The refusal to answer – and eagerness to keep court packing as an option if elected — is particularly striking given Biden’s attempt to sell his candidacy as a return to normal after the chaos of the Trump presidency.

The past four years have revealed just how fleeting the 24-hour news cycle can be. President Trump has gotten away with non-answers on his tax returns, his non-existent health care plan, the peaceful transfer of power, and a myriad of sexual assault allegations simply by repeating the same thing every time he is asked. The press eventually moves on.

Biden may be hoping for a similar outcome—but it’ll be harder to come by with Amy Coney Barrett’s confirmation hearing leading the news the next few weeks. That may be why Biden allies were workshopping a slightly more substantive (but far less factual) talking point on the Sunday shows yesterday. “Voters are being denied their constitutional right to have a say in this process,” Biden deputy campaign manager Kate Bedingfield said. Delaware Sen. Chris Coons told Fox News that Barrett’s nomination and confirmation itself “constitutes court packing.”

These statements are, of course, incorrect. Filling a vacancy on the Supreme Court isn’t court packing, and it’s plainly constitutional. But adjusting the number of justices on the Supreme Court is fully constitutional as well; the Judiciary Act of 1789 originally established the Court with six justices, but it has stood at nine justices since 1870. Adding a tenth or eleventh justice to the bench would constitute a significant departure from this norm, but Republicans have violated their fair share of norms in recent memory as well—including through their refusal to hold hearings on President Obama’s nomination of Merrick Garland in 2016.

Worth Your Time

  • In his most recent column, Bret Stephens takes aim at the New York Times’ 1619 Project—in the pages of the Grey Lady herself. While acknowledging the project’s impact, Stephens notes that the story the 1619 Project told about itself—that it was revealing a new, more truthful way to frame the American project—was its Achilles’ heel. Journalists “are best when we try to tell truths with a lowercase t,” Stephens writes, “not the capital-T truth of a pre-established narrative in which inconvenient facts get discarded.” By brushing off criticisms from eminent scholars and making unacknowledged edits to central claims, Stephens writes, the 1619 Project’s authors engaged in journalistic overreach. It “should have been enough for the project to serve as curator for a range of erudite and interesting voices, with ample room for contrary takes,” he concludes. But with its fundamental flaws in framing and conception, “the 1619 Project has given critics of The Times a gift.”

  • In The Atlantic, Brown University economist Emily Oster makes the data-driven case for school reopenings. “The evidence is pointing in one direction,” she writes, referencing her work with data scientists and school administrators. “Schools do not, in fact, appear to be major spreaders of COVID-19.” Oster does note that the “numbers are not zero, which for some people means the numbers are not good enough.” But zero, she adds, “was never a realistic expectation.” Oster hopes “more schools and districts will see these data, and others, and perhaps start to think about how reopening might work.”

Presented Without Comment

Toeing the Company Line

  • Top-notch New York Times political reporter Jonathan Martin joined Sarah and Steve on the Dispatch Podcast this week to discuss the electoral college faceoff in Arizona, the president’s misreading of the electorate on coronavirus, and whether the GOP’s current fixation on media bias will continue in a post-Trump world.

  • Sunday’s edition of the French Press looks at the case of Capitol Hill Baptist Church, which won a court injunction against D.C. restrictions on gatherings for religious services. The legal reasoning is important, David writes, but the church’s humble, decent behavior during the course of the lawsuit is even more so, as a lesson for more pugilistic religious conservatives. “The church’s cultural defeat will be hastened if it disregards its biblical obligations to ‘love mercy’ and ‘walk humbly.’”

  • In the latest G-File, Jonah engages in a little “self-serving, perhaps distastefully self-congratulatory introspection.” During these last four years, he writes, many on the right have succumbed to “the logic of the Popular Front” and decided that truth is a secondary value to the needs of the party. In times like these, “resolving to tell the truth, even when it’s hard, is not only liberating, it’s a bulwark against letting the craziness win.” This weekend’s Ruminant expands on these themes, and has Jonah unloading on some unpleasant Twitter beefs, revisiting his episode from earlier this week about legalizing marijuana, and returning to discussion of The Remnant’s eternal nemesis: Woodrow Wilson (cue ominous music).

Let Us Know

Say you were tasked with coming up with a slate of Supreme Court reforms to deescalate current tensions and make each individual vacancy less crucial. What would you propose?

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

Photograph by Demetrius Freeman – Pool/Getty Images.