The Morning Dispatch: Sheldon and THE SCHEME

Happy Wednesday! Isn’t it nice that when Sen. Mitt Romney talks about a “vile, vituperative, hate-filled morass that is unbecoming of any free nation” he is referencing our national political culture at large and not The Dispatch comment section? Let’s keep it that way! 

Quick Hits: Today’s Top Stories

• The United States confirmed 51,658 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 5.6 percent of the 929,567 tests reported coming back positive. An additional 810 deaths were attributed to the virus on Tuesday, bringing the pandemic’s American death toll to 215,861.

• Days after Eli Lilly urged the FDA to approve emergency use of its antibody treatment, the government-sponsored clinical trial testing it has been put on hold due to safety concerns. 

• Two of the six men charged with conspiring to kidnap Michigan Gov. Gretchen Whitmer reportedly also discussed plans to abduct Virginia Gov. Ralph Northam, according to testimony from an FBI Special Agent.

• The Supreme Court reversed a lower court order that extended counting for the 2020 Census due to pandemic-related delays to October 31 from an original deadline of July 31, allowing the count to be halted immediately. All states but Mississippi (99.4 percent), Louisiana (98.3 percent), and South Dakota (99.8 percent) have now enumerated 99.9 percent or more of housing units. The Trump administration argued the count had to end now in order to meet a year-end deadline. 

• A 25-year-old Nevada man has become the first American to become re-infected with COVID-19, scientists said yesterday. Also this week, an elderly and immunocompromised woman in the Netherlands reportedly became the first person in the world to die of a second COVID infection.

• Russia, China, and Cuba won spots on the United Nations’ Human Rights Council on Tuesday, but Saudi Arabia failed to cross the needed vote threshold. “These elections only further validate the U.S. decision to withdraw and use other venues and opportunities to protect and promote universal human rights,” said Secretary of State Mike Pompeo, referencing the Trump administration’s 2018 departure from the Council. (More background from Danielle Pletka and Brett D. Schaefer, here.)

• A civil rights organization filed a lawsuit to extend the voter registration deadline in Virginia by 48 hours after a cut fiber optic cable resulted in the state’s online voter registration portal being down for several hours on Tuesday.

Day Two of ACB Hearings: Grandstanding Galore

Democratic Senate Judiciary Committee members spent day two of the confirmation hearings trying to pick Amy Coney Barrett’s brain on the constitutionality of Roe v. Wade, Obergefell v. Hodges, and the Affordable Care Act.

But Judge Barrett consistently adhered to the Ginsburg rule, saying she would provide “no hints, no forecasts, no previews” of her future legal positions during their hearings. (This has become a bog-standard nominee technique at SCOTUS hearings: In her 2010 confirmation hearing, for example, now-Justice Elena Kagan said “it would be inappropriate for a nominee to talk about how she will rule on pending cases or on cases beyond that might come before the Court in the future.”)

Republicans were pleased with Barrett’s performance on Tuesday, praising her temperament throughout the hearings and remarking on her ability to speak at length about every question launched her way without notes. Here are some of the highlights.

ACB Doesn’t Take the Bait

After a thinly veiled reelection pitch to South Carolina voters, Senate Judiciary Committee Chairman Lindsey Graham asked Barrett if it would be accurate to call her a “female Scalia.” “I want to be careful to say if I am confirmed, you would not be getting Justice Scalia,” Judge Barrett replied. “You would be getting Justice Barrett, and that is because not all originalists agree.”

Barrett did, however, proudly embrace the originalist label to defend her deferential approach to constitutional interpretation. “Judges cannot just wake up one day and say, ‘I have an agenda—I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” she said.

Barrett refused to say how she would rule on real and hypothetical cases should she be confirmed, but clarified she was “not here on a mission to destroy the Affordable Care Act,” has “no agenda to try and overrule [Planned Parenthood v.] Casey,” and hopes “all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people.”

Sen. Pat Leahy asked Barrett if—given President Trump’s comments about the Supreme Court and the election—she would recuse herself from ruling on a presidential election case should November’s results be disputed. “I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not,” Judge Barrett said in response. “But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.”

Sheldon Whitehouse’s Dark Money Diatribe

After hours of Q&A, Barrett was able to rest her voice for a thirty minute stretch when Sen. Sheldon Whitehouse (D-R.I.) took the floor. Whitehouse did not ask Barrett a single question on Tuesday, instead using his allotted time to speak about the conservative legal movement’s alleged “dark money operation” to influence the makeup of the Supreme Court. Whitehouse said Barrett’s confirmation hearings were nothing but “puppet theater,” whereby “outside forces” in the conservative legal network were “pulling strings” behind the scenes to advance her nomination. He railed against Republicans’ decision to block Merrick Garland in 2016: “When you find hypocrisy in the daylight, look for power in the shadows.”

Whitehouse made sure to cater to visual learners as well, tearing through a series of flowcharts and placards—including one that read “THE SCHEME”—to connect the dots between conservative groups’ lobbying efforts, amicus briefs, and alleged attempts to control the judicial selection process of Supreme Court judges. He claimed that this dark money conspiracy is responsible for the rulings in 80 Supreme Court cases that were decided by a 5-4 conservative majority, which he dubbed the “Roberts Five.”

“$250 million is a lot of money to spend if you’re not getting anything for it,” Whitehouse said. “So that raises the question, what are they getting for it? Well, I showed the slide earlier on the Affordable Care Act, and on Obergefell, and on Roe v. Wade. That’s where they lost. But with another judge, that could change. That’s where the contest is.” 

Sen. Ted Cruz turned Whitehouse’s argument on its head, alleging Democrats “are often deeply, deeply hypocritical” on the topic of dark money. Sen. Mike Crapo (R-Idaho) took Cruz’s argument about the Democrats’ dark money one step further: “A lot of this money is going into ads against you, Judge Barrett,” Crapo said, though he also noted that “there is dark money in politics and I think that we should get it out.”

“Sexual Orientation” vs. “Sexual Preference”

The topic of same-sex marriage also came up several times during Tuesday’s hearings. Sen. Dianne Feinstein asked Barrett whether she would “be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community.” Barrett responded that she has “no agenda” on the issue. “I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference,” Barrett said. 

Because Barrett refused to speak on the legal merits of the Supreme Court’s ruling Obergefell, Democratic senators honed in on her word choice instead. “I don’t think it was an accident,” Sen. Mazie Hirono of Hawaii said of Barrett’s invocation of the term “sexual preference,” before calling it an “offensive and outdated term.” Barrett rejected Hirono’s accusation that she was deliberately derogatory. “I didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community,” Barrett said when given the chance to respond by the next questioner, Sen. Joni Ernst. “So if I did, I greatly apologize for that.” (No word on whether Hirono will demand an apology from Joe Biden, who used “sexual preference” in remarks he made in May.)

2006 Anti-Abortion Ad

Republican Sen. Josh Hawley vowed earlier this year he would not confirm any justice who did not explicitly pledge to overturn Roe v. Wade. The Missouri senator, who has since told reporters that he approves of Judge Barrett’s record on abortion, gave her the opportunity on Tuesday to explain her faith-based decision to sign an anti-abortion ad in 2006.

“That is the position of the Catholic Church, you know, on abortion,” Judge Barrett said. “I feel like I should emphasize here, as I emphasized to others asking me the question, that I do see as distinct my personal moral religious views and my task of applying the law as a judge.”

“So, what I would like to say about that is, I signed that almost 15 years ago in my personal capacity when I was still a private citizen, and now I’m a public official,” she continued. “And so while I was free to express my private views, at that time, I don’t feel like it is appropriate for me anymore because of the canons of conduct, to express an affirmative view at this point in time.”

Have We Entered COVID’s Third Wave?

It’s hard to escape the feeling we’re entering the final act of the coronavirus pandemic. Escape is on the horizon: Therapeutic treatments are constantly improving, and a vaccine is seemingly only a few months away. But in the meantime, the virus is accelerating again, once more raising the prospect of a crunch of infections, hospitalizations, and deaths before we’re home free at last.

Until now, the pandemic has taken place largely in regional phases: The spring stage was dominated by the virus pounding the Northeast, particularly New York and New Jersey, while over the summer the damage spread more diffusely across the South. But while the South remains responsible for the bulk of new infections, since the beginning of September, every U.S. region has been trending in the wrong direction. Six states, including Michigan and Ohio, saw their greatest single-day spike in new cases since the spring within the past week.

Daily COVID deaths have not yet seen a major bump, still averaging the same 700 or so per day that we’ve seen in recent weeks. Hospitalizations, however, are rising significantly: The 35,000 Americans currently hospitalized across the country this week represents a 16 percent increase over last week, according to the Covid Tracking Project.

The hospitalization numbers are particularly concerning given that flu season is likely to ramp up in the weeks ahead. Public health efforts to encourage greater rates of flu vaccination this year are ongoing; epidemiologists hope such vaccinations could still prevent the worst-case outcome of a winter “twindemic.”  

At the same time, it seems clearer than ever that the political will to do anything more about the pandemic has dried up completely, at least until after next month’s elections. Talks over another round of pandemic stimulus remain as hopelessly stalled in Washington as they have been since summer, despite the White House’s sudden schizophrenic insistence this week that a massive bill be passed as soon as possible.

Meanwhile, the president has settled back into the same basic messaging program he first made use of during his nothing-to-see-here phase in the pandemic’s earliest days.

“All over the world, you see big flare-ups in Europe, big flare-ups in Canada … a lot of flare-ups,” Trump said at the White House on Saturday. “But it’s going to disappear; it is disappearing. And vaccines are going to help, and the therapeutics are going to help a lot.” 

Donald Trump, ACB, & the ACA

Obamacare has been in the news a lot lately. Democrats have made protecting it a hallmark of their campaigns this fall, the Supreme Court is set to hear a case on it next month, and President Trump is always two weeks away from rolling out his plan that will keep all the good parts of the ACA and get rid of all the bad parts.

In a piece for the site today, James cut through the noise to lay out where exactly things stand with regard to Trump and Obamacare, particularly as it relates to preexisting conditions.

Oral arguments in Texas v. California—a lawsuit filed by more than a dozen Republican state attorneys general that seeks to overturn the ACA—are set to begin on November 10, just days after both the election and Judge Amy Coney Barrett’s likely elevation to Justice. Democrats have been hammering the case during Barrett’s confirmation hearings this week.

“The suit is widely considered to be a dead end,” James writes, “but Democrats’ political instincts to focus on a threat to Obamacare are correct. For example, the legislation’s provision forbidding insurance companies to deny coverage to people with pre-existing conditions is immensely popular: 72 percent of the public believes that keeping the provision is ‘very important,’ including 62 percent of Republicans.”

That might be why Trump tweeted last June that he “will ALWAYS PROTECT PEOPLE WITH PRE-EXISTING CONDITIONS, ALWAYS, ALWAYS,ALWAYS!!!”

Yet his administration’s Justice Department has joined the Republican state AGs in their effort to overturn the ACA. Trump “has taken entirely contradictory positions on a major issue, as he has so many other times in his tenure,” James writes. “He loudly and insistently proclaims his allegiance to protections for those with pre-existing conditions while Justice Department lawyers argue for overturning those very protections. And as on many other issues, those positions are held together by the promise to use his dealmaking skills to craft an even better replacement, with details to be filled in later.”

Worth Your Time

• Juliet Bartz of Axios has put together an incredible analysis visualizing just how tightly Republican elected officials have stuck by President Trump’s side these past four years, even through “crises that would have crushed most politicians.” The “Trump Loyalty Index” takes into account not only how often lawmakers have voted in line with the president’s priorities, but assesses their response to some of the highest-profile Trump controversies—Access Hollywood, Charlottesville, the Lafayette Plaza Bible photo op—of the past four years. The index underscores Trump’s tightening grip on the Republican rank and file. In 2016, 42 percent of GOP officials criticized Trump’s “grab them by the p****” remarks. A year later, 19 percent criticized him for his handling of Charlottesville. This summer, just 12 percent spoke up about his clearing of peaceful protesters for a photo op. You’ll never guess who the most and least loyal Trump Republicans have been (you’ll probably be able to guess).

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Toeing the Company Line

• Democrats in recent days have made Amy Coney Barrett’s purported threat to the Affordable Care Act their number one issue in her confirmation hearings. But is the ACA in any danger, even if Barrett is seated on the Supreme Court? In his latest French Press (🔒), David argues no. “Yes, there’s an Obamacare oral argument—and yes once again conservatives are seeking to strike down the entire law—but this time the vast majority of informed legal observers recognize the lawsuit is an exercise in legal futility,” he writes. “There’s virtually no chance SCOTUS will end Obamacare.”

• Slate’s Will Saletan joined Jonah on Tuesday’s episode of The Remnant for some SCOTUS punditry, Hegel talk, and a discussion of post-liberalism and post-conservatism.

Let Us Know

What do you think about the Ginsburg rule? Is the public best-served by a potential justice withholding judgment on cases she may hear, or should nominees drop the pretenses and explicitly state their judicial predispositions?

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

Photograph by Greg Nash – Pool/Getty Images.