The Daily 202: Unlike 2016, Trump’s Supreme Court shortlist could galvanize the left more than the right

All three senators have been plotting potential 2024 presidential campaigns of their own. Each man has been crystal clear that he would support overturning reproductive rights codified in Roe v. Wade, strike down the Affordable Care Act in its entirety and rule against LGBTQ rights if given the chance.

Cotton responded to Trump’s announcement by saying he “will always heed the call of service” and that that he is “honored” and “grateful” to have the president’s confidence. “It’s time for Roe v. Wade to go,” Cotton said, referring to the 1973 case that legalized abortion.

Cruz also described himself as “grateful for the president’s confidence,” adding: “It's humbling and an immense honor to be considered for the Supreme Court.” 

Hawley said he has “no interest” in joining the high court. “I appreciate the president’s confidence,” he said. “But as I told the president, Missourians elected me to fight for them in the Senate. … I look forward to confirming constitutional conservatives.”

Like so much about Trump’s presidency, putting out a list of potential Supreme Court picks is not normal. But doing so during the 2016 campaign turned out to be a master stroke.

Trump, a registered Democrat until September 2009, had flip-flopped on hot-button social issues like abortion. Four years ago, some conservatives were queasy about Trump’s caught-on-tape boast that he could get away with grabbing women “by the p----” because he is a “star.” Several women also came forward to accuse the GOP nominee of sexual misconduct.

But the vacancy created by Justice Antonin Scalia’s untimely cardiac death in February 2016 and the refusal by Senate Majority Leader Mitch McConnell (R-Ky.) to allow a hearing for Merrick Garland, President Barack Obama’s nominee to fill the seat, created a permission structure for millions of these voters to rationalize supporting the reality television showman.

The first list of 11 potential justices Trump said he would choose from in 2016 had no household names. It was prepared based on input from lawyers at the Federalist Society and Heritage Foundation. But the jurists were all rock-ribbed conservatives that the activist wing of the party could easily get excited about. One was Neil Gorsuch, the Denver-based appellate judge whom Trump would tap for the Supreme Court soon after taking office.

Exit polling that November pointed to the central role that judicial appointments played in Trump’s upset victory: 26 percent of Trump voters said that the vacancy was the most important factor in their vote, compared with 18 percent of Hillary Clinton voters who said the same. Among voters who said the Supreme Court was the most important factor in their vote, Trump beat Clinton 56 percent to 41 percent.

Trump has rewarded conservatives who supported him by appointing 205 judges to the federal bench since taking office, with three more expected to be confirmed this week. Many have been extremely conservative and unusually young. This means they will be able to remake jurisprudence for a generation.

But there are growing indications that the tables are turning in 2020, and the courts might animate the left more than the right this time. A Pew Research Center poll published in August found that Supreme Court appointments are third on the list of top issues for voters: 66 percent of Joe Biden supporters say this is “very important” to their vote, compared to 61 percent of Trump supporters. In a separate CNN poll, 47 percent of Biden supporters called Supreme Court nominations "extremely important,” compared to 32 percent of Trump supporters.

Several factors are at play. 

Many women remain incensed that Brett Kavanaugh was confirmed to the Supreme Court in 2018 despite being accused of sexual assault by Christine Blasey Ford. He denied wrongdoing during a contentious confirmation hearing. Blasey Ford, a professor, testified under oath that the traumatic experience from when both were teenagers is seared forever in her brain. “Indelible in the hippocampus is the laughter,” she said. “The uproarious laughter.”

Two of the supreme Court’s four liberals are in their 80s. Justice Ruth Bader Ginsburg is 87 and Justice Stephen Breyer is 82. Ginsburg has suffered from a string of serious health problems. She announced in July that she was being treated for a recurrence of cancer, this time on her liver. It was her fifth battle with cancer. She was also admitted to the hospital this summer for an unrelated infection related to her gallbladder. RBG, as she is often referred to, has developed a cult-like following on the left, especially among feminists.

Liberal donors have also increased funding for outside groups that have been created to compete with conservative counterparts that have long championed judicial appointments. An initiative from Demand Justice called the Supreme Court Voter project is spending $2 million to run ads in five battleground states, including North Carolina, Michigan, Arizona, Pennsylvania and Wisconsin. The group is also holding digital training sessions to emphasize the importance of courts to liberal activists. “Trump has been talking constantly about the importance of the courts for years now. He meant to talk to Republicans, but Democrats have heard him too,” said Demand Justice spokesman Colin Diersing.

The three GOP senators on Trump’s new list were among 20 total names that Trump unveiled at the White House during a hastily called event that seemed designed to distract from the bombshells in Bob Woodward’s new book, “Rage.” Trump said the next president could nominate “one, two, three and even four Supreme Court justices.” He challenged Biden to release his own list of potential picks “for people to properly make a decision as to how they will vote.”

Biden has promised to name a Black woman to the high court, but he has no apparent plans to release a list of his own. “We look forward to Donald Trump releasing his tax returns in the spirit of his newfound appreciation for transparency,” said Biden spokesman TJ Ducklo.

Trump’s new list also includes his former solicitor general Noel Francisco, the architect of the administration’s legal argument for tossing out all of Obamacare, as well as Assistant Attorney General Steven Engel, who has played a supporting role in several Trump-era scandals, including the impeachment saga. Engel is viewed negatively by current and former career prosecutors at the Justice Department for using his perch as the head of Office of Legal Counsel to enable Trump.

The other names on the list included current and former Trump White House lawyers, circuit court judges and state attorneys general. Among that last group is Daniel Cameron, who was elected as Kentucky’s attorney general last year, spoke at the Republican National Convention last month and is widely presumed to be McConnell’s favorite to eventually replace him in the Senate, perhaps in the 2026 election.

If Trump wins a second term, the conservative justice who is considered most likely to retire is the 72-year-old Clarence Thomas. “Several of Justice Thomas’s former Supreme Court clerks — including Kate Comerford Todd, a deputy White House counsel who herself was included among the 20 — were directly involved in crafting the list,” Seung Min Kim and Ann Marimow report. “Six of his ex-clerks were included in Wednesday’s list.”

Unlike the Gorsuch types on the list four years ago, Cruz and Cotton are widely known – and detested – by liberal activists. “Pod Save America” host Jon Lovett, a speechwriter in the Obama White House, tweeted to his 800,000 followers on Wednesday afternoon: “Imagine Ted Cruz replacing Ruth Bader Ginsburg and then channel that anger into calls this weekend.” 

Judicial appointments have motivated grass-roots voters on the right more than the left for generations, stretching back to the racist backlash against the Brown v. Board of Education school desegregation decisions in the 1950s.

“It’s frustrated me to no end that conservatives have taken the Supreme Court much more seriously and that Democrats, in years past, have not been able to utilize the issues surrounding the court to their advantage,” said Jim Manley, who spent two decades in the Senate as the top spokesman for Democratic leaders like Harry Reid and Ted Kennedy. “Even after what Republicans did to Merrick Garland, it still didn’t move the needle in the subsequent election.”

Manley said Trump’s new list also highlights the importance for Democrats of winning the Senate in 2020 in case Trump wins the White House so that they could block nominees like Cruz, Cotton and Hawley. “Hope springs eternal,” he said. “I hope this is going to catch people’s attention, especially what Cotton said about Roe v. Wade.”

The West is on fire

The Oregon wildfires, racing through small towns, have scorched hundreds of buildings.

“Amid dry heat and gusty winds, thousands of firefighters made little headway Wednesday containing scores of fires burning across the American West, as forecasts offered only slight hope that conditions would turn more favorable in coming days,” Samantha Schmidt, Scott Wilson and Chris Mooney report. “A stiffening overnight wind, sweeping from the north and east, kicked up new fires and blew new life into simmering ones from the Cascade Range in the northwest to the Angeles National Forest east of Los Angeles. Those winds are predicted to spike in Southern California during the next few days, creating fresh concern that blazes in the region could drive toward more populated areas. 

“The fires have fed on heat and dry conditions, particularly in California, where more than two dozen major fires added Wednesday to the record total acreage burned in the state so far this year. …  More than 42,000 Oregonians have been ordered to evacuate their homes, a frightening, disruptive annual routine in California but a relative novelty for its northern neighbor. … Many of them did not know if they had homes to which they could return."

• At least seven people, including a 1-year-old boy, have died in California, Oregon and Washington state from the fires. (Tim Bella)
• This is the biggest wildfire outbreak in the U.S. since at least 1910, according to Nick Nauslar, a predictive services meteorologist with the National Interagency Fire Center in Boise, Idaho. “This event is unprecedented due to the number of large, fast moving wildfires over such a broad region,” he told Andrew Freedman.
• The suffocating smoke has elevated air pollution to hazardous levels. The U.S. government’s AirNow pollution data shows large pockets of code red air quality levels in all three states. According to waqi.info, a database of air quality levels, the pollution in parts of western Oregon was about the worst in the world, trailing behind only isolated locations in China and India. (Jason Samenow)
• The Forest Service closed all 18 national forests in California in response to the fire conditions. That's the first time this has ever happened. The orders cover more than 20 million acres, an area about 26 times the size of Rhode Island. (Matthew Cappucci)

The sun never came out in San Francisco on Wednesday:

The Trump presidency

Trump acknowledged that he intentionally downplayed the danger and lethality of coronavirus.

The president said he did this to avoid “panic” and a “frenzy," admitting a central revelation in the forthcoming book, “Rage,” by Washington Post associate editor Bob Woodward. “Trump’s comments came hours after excerpts from the book and audio of some of the 18 separate interviews he conducted with the author were released, fueling a sense of outrage over the president’s blunt description of knowing that he was not telling the truth about a virus that has killed nearly 190,000 Americans," Josh Dawsey, Felicia Sonmez and Paul Kane report. "Privately, however, the president realized the book would not be good for him politically. For weeks, he told advisers that Woodward’s book was likely to be negative … But the White House had done little to prepare for it, officials said. Initially, surrogates received bland talking points that included comments from White House press secretary Kayleigh McEnany’s Wednesday briefing. In a phone interview with Fox News’s Sean Hannity on Wednesday night, Trump was dismissive of the book. [He said he's too busy to read it.] …

“Trump encouraged others to speak with Woodward and would often mention the journalist in conversations with other advisers, suggesting that he might call him again. Some of the conversations between the two men, a White House official said, were precipitated by Trump — who thought Woodward was more receptive to a favorable narrative about his presidency. There was widespread finger-pointing in Trump’s orbit Wednesday about the book and its revelations, but some advisers noted that Trump is the one who drove the decision to cooperate. … In a familiar routine on Capitol Hill, Republicans ducked from the latest Trump controversy, almost uniformly asserting they had yet to read Woodward’s book."

Woodward was criticized for not revealing Trump’s comments earlier. “Woodward said his aim was to provide a fuller context than could occur in a news story: ‘I knew I could tell the second draft of history, and I knew I could tell it before the election,'” writes media columnist Margaret Sullivan. "What’s more, he said, there were at least two problems with what he heard from Trump in February that kept him from putting it in the newspaper at the time: First, he didn’t know what the source of Trump’s information was. … Second, Woodward said, ‘the biggest problem I had, which is always a problem with Trump, is I didn’t know if it was true.’ … Woodward said he believes his highest purpose isn’t to write daily stories but to give his readers the big picture. ... Woodward’s effort, he said, was to deliver in book form ‘the best obtainable version of the truth,’ not to rush individual revelations into publication.”

A top DHS official says he was told to stop providing intelligence analysis on the threat of Russian interference. 

“The official, Brian Murphy, who until recently was in charge of intelligence and analysis at DHS, said in a whistleblower complaint that on two occasions he was told to stand down on reporting about the Russian threat and alleged that senior officials told him to modify other intelligence reports, including about white supremacists, to bring them in line with Trump’s public comments, directions he said he refused,” Shane Harris, Nick Miroff and Ellen Nakashima report. “On July 8, Murphy said in the complaint, acting homeland security secretary Chad Wolf told him that an ‘intelligence notification’ regarding Russian disinformation efforts should be ‘held’ because it was unflattering to Trump, who has long derided the Kremlin’s interference as a ‘hoax’ that was concocted by his opponents to delegitimize his victory in 2016. … DHS’s intelligence reports are routinely shared with the FBI, other federal law enforcement agencies, and state and local governments. Murphy objected to Wolf’s instruction, ‘stating that it was improper to hold a vetted intelligence product for reasons [of] political embarrassment,’ according to a copy of his whistleblower complaint. … 

“The president’s political interests were often of greater concern to senior leaders at the department than reporting the facts based on evidence, Murphy alleges. He claims that Wolf and Ken Cuccinelli, the department’s second-in-command, on various occasions instructed him to massage the language in intelligence reports ‘to ensure they matched up with the public comments by Trump on the subject of ANTIFA and ‘anarchist’ groups,’ according to the complaint. … [Murphy] was removed from his position and assigned in July to an administrative role, where he remains. His new assignment followed reports by The Post that his office had compiled ‘intelligence reports’ about tweets by journalists who were covering protests in Portland, Ore. In his complaint, Murphy called press coverage of his office’s activities ‘significantly flawed.’ … Murphy’s complaint prompted mixed reactions among former senior administration officials, who said he had valid and significant concerns but described him as a flawed messenger. … The House Intelligence Committee has asked Murphy to testify later this month.” (Read Murphy's 24-page complaint here.)

• Dan Coats, Trump's former director of national intelligence, criticized his successor, John Ratcliffe, for suspending in-person briefings to Congress on election security. “It’s imperative that the intelligence community keep Congress fully informed about the threats to our elections and share as much information as possible while protecting sources and methods,” Coats, a former Indiana GOP senator, told Ellen Nakashima.
• Microsoft alerted SKDKnickerbocker, the D.C.-based campaign strategy and communications firm working with Biden and other prominent Democrats, that it had been targeted by suspected Russian state-backed hackers over the past two months, Reuters reports: “A person familiar with SKDK’s response to the attempts said the hackers failed to gain access to the firm’s networks.”

Bill Barr defended the Justice Department’s intervention in a personal lawsuit against Trump.

The attorney general said in Chicago that legal precedent is on the government’s side. “Barr said the White House sent a memorandum to the Justice Department seeking the move, and civil litigation experts at the department agreed, in keeping with the normal procedure for such legal questions,” Devlin Barrett and Matt Zapotosky report. “The little tempest that’s going on is largely because of the bizarre political environment in which we live,” Barr said. For context: E. Jean Carroll claims Trump raped her decades ago in a department store dressing room, and she sued the president after he called her a liar and said he wouldn't have had sex with her because she's not his “type.” She says she has her clothing from that day, and a DNA sample from the president could corroborate her account. 

Here’s a taste of that tempest from The Post’s opinion page:

• Editorial Board: “For the Justice Department, Trump’s interests are national interests. That’s how dictatorships work.”
• E.J. Dionne: “DOJ’s move to take over Trump’s defense should have us shouting from the rooftops.”
• Dana Milbank: “This is government of the Donald, by the Donald and for the Donald.”

The USPS board of governors backed embattled Postmaster General Louis DeJoy.

“Congressional Democrats called for DeJoy’s ouster after he pushed through aggressive cost-cutting policies that nonpartisan experts and rank-and-file postal workers say caused multiday mail backlogs in communities across the country. … [Others] on Monday called on the board of governors to suspend DeJoy pending an investigation by [the House Oversight Committee] into claims that he reimbursed employees for campaign contributions they made to his preferred GOP politicians," Jacob Bogage and Lisa Rein report. “But members of the board, dominated 4 to 2 by Republican members appointed by President Trump, told The Post that the body fully backs the postmaster general, who has held the job for 87 days.”

Several major U.S. pharmacies said that average mail delivery times have ticked up since the spring, leading to a flood of angry calls from customers and costly requests to resend their medications. … Four prescription drug providers told two Democratic senators leading an investigation — Elizabeth Warren (Mass.) and Bob Casey Jr. (Pa.) — that delivery times this summer have increased by half a day or more, on average, compared with earlier this year or similar time frames in 2019,” Tony Romm reports.

Trump resumed attacks on NFL players who demonstrate for racial justice.

The president and his allies re-picked the scabs in the culture war ahead of the football season kicking off tonight, with the defending Super Bowl champion Kansas City Chiefs hosting the Houston Texans. A new Post poll shows that the majority of Americans – 56 percent – support athletes for speaking out and believe the anthem protests are appropriate. (Rick Maese and Emily Guskin)

• Trump and the Republican National Committee jointly raised $210 million in August, a sum dwarfed by the $364.5 million raised by Biden and the Democratic National Committee. (AP)
• Vice President Pence plans to headline a fundraiser in Montana hosted by supporters of the QAnon conspiracy theory. Caryn and Michael Borland have shared QAnon memes and retweeted posts from related accounts. The fundraiser is expected to also draw Kimberly Guilfoyle, a top Trump fundraising official who is dating Donald Trump Jr. (AP)
• Trump canceled the rallies he planned at the Reno and Las Vegas airports in Nevada because of pandemic-related limitations. But the campaign said the president will still travel to the Silver State this weekend and may hold rallies at other locations. (Las Vegas Review-Journal) 
• The president has not held a single mock debate session and has no plans of staging a formal practice round as he readies for his first meetup with Biden in three weeks. Trump has dismissed the typical preparations, joking to allies that he’s been preparing for debates since he was born. Aides worry that this cavalier approach will backfire. (NBC)
• Metaphor alert?: The Trump Plaza and Casino in Atlantic City will be imploded in January. The tower was closed in 2014 and no longer belongs to the president. (Untapped Cities)
• A third member of former Virginia GOP congressman Scott Taylor’s 2018 campaign staff was indicted on a charge of election fraud. Heather Guillot, who served as a consultant for Taylor’s campaign, is accused of submitting forged signatures in an effort to get a spoiler candidate on the ballot that year. (Virginian Pilot) 
• Kanye West is fighting to get back on the ballot in Virginia after a judge threw him off last week. The rapper, whose independent campaign is being assisted by veteran Republican operatives, is urging the state’s Supreme Court to weigh in quickly because ballots are already being printed. (Laura Vozzella)

Quote of the day

“We all do stupid things at 17,” Donald Trump Jr. said of Kyle Rittenhouse, the Trump-supporting teenager accused of fatally shooting two protesters in Kenosha, Wis. (Extra)

More on the coronavirus

The AstraZeneca vaccine trial was paused to investigate an unexplained case of spinal inflammation. 

The major trial “is on hold as an independent committee investigates whether a case of spinal inflammation in a single British participant is linked to the vaccine — a step that several experts said is a sign of the protections in place to ensure the safety of products ultimately used in millions of healthy people,” Carolyn Johnson reports. National Institutes of Health Director Francis Collins and other scientists “pointed to AstraZeneca’s decision as evidence that scientists, rather than politicians, are running the process. The experts said that it was hard to estimate how long the investigation would take, but that the pause was not unexpected in trials of this size and scale."

A group of scientists questioned whether the early-stage trials for the Russian vaccine known as “Sputnik V” can be considered reliable due to “highly unlikely” patterns presented in the results. Last week, the medical journal Lancet said the vaccine produced an antibody response and no serious side effects in more than 70 participants during early trials. But a collective of 26 scientists pointed out that multiple test subjects were reporting identical antibody tests. (Teo Armus)

More than 70 professors at Stanford University’s medical school pushed back on what they say are “falsehoods and misrepresentations of science” pushed by their former colleague, Scott Atlas, who has emerged as one of Trump’s top medical advisers. Atlas, a neuroradiologist by training, has reportedly advocated for a controversial “herd immunity” strategy. The approach, which has already begun to take root in the Trump administration's testing strategy, would result in “a significant increase in preventable cases, suffering and deaths, especially among vulnerable populations,” the Stanford doctors warn in a letter. (Armus) 

The White House is looking at more executive actions as relief talks appear to be over.

“White House officials have discussed efforts to unilaterally provide support for the flagging airline industry while also bolstering unemployment benefits," Erica Werner and Jeff Stein report. “The White House has also discussed moving without Congress to direct more money for school vouchers and changing Trump’s recent payroll tax changes to make it more effective. Typically, such actions require congressional approval. … Asked on Wednesday whether a bipartisan deal was possible, Treasury Secretary Steven Mnuchin said he was not sure." Senate Majority Leader Mitch McConnell (R-Ky.) was similarly noncommittal.

• The Labor Department announced that 884,000 people filed unemployment claims last week. “Another 839,000 had claims processed for Pandemic Unemployment Assistance, the program for self-employed and gig workers, which have been rising for weeks. In early August that number had sunk to 489,000. When added together, the numbers of new unemployment claims and PUA claims have risen for four weeks straight,” Eli Rosenberg reports.
• Lawmakers are also failing to reach consensus in the ongoing debate over the Fed’s Main Street program. “A core issue is how much risk the Fed and Treasury Department can take under the Cares Act, since any losses are ultimately covered by taxpayers," Rachel Siegel reports.
• A Trump political appointee at HHS has been trying to muzzle Tony Fauci. Emails show “Paul Alexander — a senior adviser to Michael Caputo, HHS’s assistant secretary for public affairs — instructing press officers and others at the National Institutes of Health about what Fauci should say during media interviews,” Politico reports. Fauci downplayed the significance of the emails, suggesting he ignores them.
• Seema Verma, Trump's Medicaid chief, spent more than $3.5 million in taxpayer dollars on at least 15 high-priced, GOP-connected consultants. The expenses include $2,933 for a GOP operative to organize a “Girls Night” and $13,000 for consultants to get her on high-profile panels and to try to win awards like Washingtonian magazine’s “Most Powerful Women in Washington.” (Politico)
• The head of Amtrak told Congress that the railroad needs a nearly $5 billion federal bailout to survive losses caused by the pandemic. (Luz Lazo) 
• The D.C. Metro system said it will need to cut more than $200 million from its budget unless it gets more federal aid. (Justin George)

Dozens of Austrians are wondering why they received U.S. stimulus checks. 

“Some of them appeared puzzled by the unexpected payments or were ineligible for the payouts,” Rick Noack reports. “One of the Austrians who claimed to have received such an erroneous check, pensioner Manfred Barnreiter, 73, [said he] at first believed his check to be part of a sophisticated fraud scheme. … He and his wife received $1,200 each, although neither is a U.S. resident or holds U.S. citizenship — key eligibility requirements. Barnreiter briefly worked in the United States in the 1960s and still receives a small pension from that period of employment, he said. … Several Austrian banks confirmed Wednesday that they had received queries from confused customers in recent weeks. … The IRS would not respond on the record to a request for comment.” 

• The White House ordered an end to covid-19 airport screenings for international travelers. International flights will no longer be funneled into select airports for testing purposes, and all screenings will come to a halt. (Yahoo)
• Britain’s health secretary said the asymptomatic don’t need to get tested. Critics said that sends a mixed message to the country with the highest death toll in Europe. (Jennifer Hassan)

The University of Wisconsin at Madison will switch to fully online classes.

More than one-fifth of students tested for the virus have been positive. The university is shutting down libraries, the student center and academic buildings at the campus of approximately 30,000 students. Students at two residence halls will be required to quarantine themselves completely over the next two weeks after several positive test results, prompting a flood of students to stock up on supplies at nearby grocery stores. (Armus)

• At least six teachers have died from covid-19 as the fall semester started in their districts. It isn’t clear whether any of these teachers were infected at school, but the deaths have disrupted the start of the fall semester in several places and left students mourning their favorite instructors and role models. (Katie Shepherd)
• D.C. Mayor Muriel Bowser (D) said small groups of children should return to public schools this month. (Julie Zauzmer, Michael Brice-Saddler, Perry Stein and Dana Hedgpeth) 
• New York City will allow indoor dining at the end of the month, with restaurants allowed to serve inside at 25 percent capacity. (NYT) 
• Wall Street snapped back after a three-day pummeling slashed 10 percent off the Nasdaq. The Dow popped more than 400 points. (Hamza Shaban)

Social media speed read

There’s always a tweet, but the latest Trump donnybrook calls for the resurfacing of multiple tweets. Consider these, from six months ago and from seven years ago:

On Wednesday, Trump accused Woodward of “rapidly fading”: 

Videos of the day

Sam Bee doesn't think it's surprising that Trump is politicizing the vaccine race: 

Seth Meyers found Trump's North Carolina rally to be quite unhinged: