Politico

Biden takes cautious approach to SCOTUS storm


The morning after Ruth Bader Ginsburg’s death set the political world ablaze and reordered the presidential race, Joe Biden called it a day. Publicly, at least.

His campaign announced at 8:34 a.m. Saturday there would be no candidate news or activity for the rest of the day. It wouldn’t hold any campaign events, or make any more public statements, as cable news and social media buzzed with 10,000 hot takes.

The cautious approach was emblematic of a candidate whose initial instincts are to avoid fueling an emerging controversy, and one who aims to project stability and confidence at a time when most polls show Biden leading President Donald Trump nationally and in battleground states.

While Biden himself was silent publicly, his campaign was laying plans to shift the focus of the looming Supreme Court nomination fight toward a referendum on the Affordable Care Act, according to his advisers. The high court is scheduled to hear the fate of Obamacare after the election.

Against that backdrop Saturday, President Trump’s campaign and even some Democrats demanded that Biden release his own list of potential court nominees — which Biden has steadfastly refused to do. Nor has Biden addressed the mounting pressure in his party to take a position on abolishing the Senate filibuster or packing the U.S. Supreme Court if Senate Republicans confirm Trump’s nominee before Inauguration Day. Biden has opposed ending the filibuster outright and court-packing in the past, though in July he expressed an openness to consider eliminating the filibuster.

“That’s sort of a wasted conversation because that concedes defeat right now. And the last thing we should be doing is analyzing how we’re going to recover from this loss,” said Hilary Rosen, an outside Biden campaign adviser and vice president at the SKDKnickerbocker firm, where top Biden adviser Anita Dunn is managing partner.

“Today is an RBG-fired engine. There’s nothing Joe Biden can say today to fire us up more,” Rosen said, adding that Biden also paused from publicly campaigning out of respect for Ginsburg’s passing.

As evidence of that Democratic intensity, online donors smashed the one-day fundraising record after the justice’s death.

But there are limits to how long Biden can remain silent about ending the filibuster altogether, court packing or his own shortlist, especially with the first of three presidential debates taking place in 10 days.

What Biden doesn’t want to do, his advisers say, is get sucked into a Twitter-fueled game of escalation with Trump and change the focus too much from the core issues of a campaign where Biden has the advantage.

“We still think this election is a referendum on Trump. It’s about Covid and healthcare and the economy and people’s lives,” an adviser said. “This is not the fight we wanted to have, but we’ll win it. So yes, we’ll have to talk about this more than we planned. We’ll have to do ads.”

Democrats can rely on a network of abortion-rights and women’s groups — some of which came into their own after the 2018 confirmation hearings of Justice Brett Kavanaugh — to counteract the pressure from the right, where white evangelicals have long exercised power in nomination fights.



“This is going to fire up young women under 40; they care about their right to choose,” Biden’s adviser said, acknowledging that there had been some “soft” support in polls for the Democrat among younger voters.

But Biden will also be forced to contend with forceful demands within his own party that he’ll need to navigate. On Saturday, Senate Minority Leader Chuck Schumer warned of retaliation if Senate Majority Leader Mitch McConnell moved ahead with Trump’s nomination in light of the Republican Senate’s refusal to hear President Obama’s nominee in 2016. McConnell has vowed to hold a vote on Ginsburg replacement, though he hasn’t specified the timing.

“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table,” Schumer said, according to a source.

Schumer didn’t specify what the retribution would be if Biden won the presidency or if Democrats captured the Senate in November, but there’s a growing movement not just to end the filibuster and pack the courts, but to pack the Senate as well by granting Washington D.C. and Puerto Rico statehood, all but guaranteeing four more Democratic senators.

A career senator before his selection as Obama’s vice president, Biden is an institutionalist who has long resisted calls for far-reaching changes to the chamber and, especially, the U.S. Constitution. Biden declined Friday night to discuss court-packing when a reporter shouted a question at him after he read a statement about Ginsburg’s passing.

The pressure to respond forcefully — or recalibrate some of his positions — will run counter to the practices and instincts that have served Biden’s campaign well so far in a campaign in which he’s been subjected to non-stop criticism that he’s too slow to react, doing too little or not saying enough.

Exactly one year ago, Biden ignored critics who said he had to instantly call for President Trump’s impeachment after the president admitted he asked Ukraine to open an investigation into his Democratic rival and his son. Biden, instead, let the House lead as he slowly ratcheted up the pressure and called for impeachment a month later.

Biden’s campaign similarly ignored calls that he wasn’t traveling enough before Super Tuesday, only to see him dominate. He also proved doubters wrong by sheltering in place when the coronavirus first hit rather than hitting the campaign trail more aggressively, a criticism that’s resurfaced in the campaign’s closing weeks.

“The proof right now in Biden’s strategy is in the polling,” said Lee Miringoff, pollster with Marist College, whose surveys have shown Biden generally leading in battleground states and nationally.

“I’m assuming that if Biden keeps it up the way he has, the numbers don’t change much right now,” Miringoff said. “I don’t think they will as a result of Ginsburg’s passing because if you look at everything — from impeachment to coronavirus to the protests — the race hasn’t fundamentally changed.”

The effect of Ginsburg’s death, Miringoff said, could be on turnout, which he expects will be heavy on both sides. He said the debates could prove crucial for that small sliver of undecided voters.

Neil Newhouse, a veteran Republican pollster and founder of Public Opinion Strategies, said of Biden that the debates “should help smoke him out” and force him to weigh in more on issues he might want to avoid, like Supreme Court-packing.

But as of now, he said, it’s hard to criticize Biden’s go-slow, say-less approach.

“It’s played to his advantage so far. It’s like the Trump campaign is shadow boxing right now; they’re trying to hit him but he’s kind of not out there.”

Poll: Democrat Greenfield has slight lead over Ernst in Iowa Senate race


Democrat Theresa Greenfield holds a slim edge over Republican Sen. Joni Ernst in the Iowa Senate race, which has emerged as one of the most expensive and competitive in the country, according to the state's gold-standard poll.

Greenfield leads Ernst, 45 percent to 42 percent, among likely voters, according to the poll from the Des Moines Register, which was conducted before the death of Supreme Court Justice Ruth Bader Ginsburg. Just 3 percent of voters said they supported someone else, and 7 percent of voters were undecided.

Greenfield also led Ernst by 3 points in the newspaper's June poll.

Despite the stability of the race, both parties have invested massive sums of money into the race so far aiming to define each candidate and are poised to spend even more. Democrats have nearly $40 million booked between now and Election Day, while Republicans have almost $33 million, according to data from Advertising Analytics.

Iowa is considered a critical race for control of the Senate: Ernst is running for a second term, and Greenfield, a businesswoman who attempted to run for the House in 2018, has never before held public office.

The poll provides a baseline view of a hyper-competitive race upon which to judge potential swings among the electorate over President Donald Trump's pending Supreme Court appointment. Ernst has not yet said whether she supports confirming a new justice prior to the election, while Greenfield has called for the confirmation to hold until after the election.

Iowans are split on Ernst, who won by 8 points in 2014: 44 percent view her favorably, and 44 percent view her unfavorably. Her image is largely unchanged from the previous Des Moines Register Poll in June.

Greenfield, who has never previously held office, has a slightly positive image, with 40 percent of Iowans viewing her favorably and 36 percent viewing her unfavorably — her negative image rose 16 percentage points from the prior survey after a barrage of negative ads over the summer. But she still remains significantly less defined than Ernst: About a quarter, 24 percent, of Iowans have no opinion of her heading into the final six weeks of the election.

Greenfield topped Ernst, 47 percent to 32 percent, among independent voters and also had a 20-point advantage among women. She also had support from 10 percent of voters who said they had supported Trump in 2016, while Ernst had support from just 2 percent of voters who had backed Democratic nominee Hillary Clinton.

The Register did not report results for the presidential race between Trump and Democrat Joe Biden in Saturday's release.

The poll was conducted Sept. 14-17 and interviewed 803 Iowa adults, with a margin of error of plus or minus 3.5 percentage points. For the horse-race question, the poll interviewed 658 likely voters, with a margin of error of plus or minus 3.8 percentage points.

'Nothing is off the table': Supreme Court fight could reshape the Senate


The Senate is moving toward a historic showdown that may reverberate for years to come.

The looming battle over President Donald Trump’s upcoming Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg is already turning into an ugly partisan brawl, with Senate Democrats warning they’ll retaliate if they win control of the chamber and White House on Nov. 3.

Even more than the 2018 crisis surrounding Brett Kavanaugh’s nomination to the high court, Democrats say the fallout from Senate Majority Leader Mitch McConnell’s effort to quickly push through a new justice — who could then be confirmed this year by the Senate — could lead to permanent consequences for the institution.

During a Democratic Caucus call Saturday afternoon, Senate Minority Leader Chuck Schumer told his colleagues “everything Americans value is at stake” and warned of possible payback if Republicans fill Ginsburg’s seat before January.

“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer declared. “Nothing is off the table.”

Schumer also urged the caucus to emphasize the effect filling the vacancy would have on health care, civil rights and other issues.



The once-chummy Senate has sunk ever deeper into bitter partisanship over the years, with each side blaming the other as the culprit. But every time senators think things could not get any worse — after Robert Bork’s failed nomination, or nuking the filibuster on nominations or the sexual assault allegations against Kavanaugh — they soon find the institution can deteriorate a whole lot more.

Some of Schumer’s colleagues and progressive outside groups want the New York Democrat to dismantle the legislative filibuster if Vice President Joe Biden, who has signaled an openness to the idea, becomes president and they win control of the Senate. Schumer hasn’t tipped his hand on the issue, but such a momentous change in Senate rules would end a 200-year-old tradition and make the change more like the House, an institution where the majority always wins.

Other Democrats suggested the party should move to pack the Supreme Court with additional justices in order to dilute the power of the conservative majority. Sen. Ed Markey (D-Mass.) tweeted on Friday that if McConnell moves to fill Ginsburg’s seat this year and Democrats win control of the Senate and the White House, “we must abolish the filibuster and expand the Supreme Court.”

There has even been talk in Democratic circles of having the House impeach any justice placed on the high court by Trump and McConnell's maneuvers, although it would still take a two-thirds vote by the Senate to remove that person from the Supreme Court. Similar sentiments were floated by Democrats during the Kavanaugh fight but went nowhere.

Sen. Chris Murphy (D-Conn.) said he wasn’t yet convinced that McConnell will garner the requisite 50 votes to move forward with a nomination, but asserted Democrats should “play by the same rules” as Republicans have since taking over the chamber six years ago.

“Every single Senate Republican has a decision to make about what the future of the United States Senate is going to look like,” Murphy cautioned. “I just think they’re pushing the Senate into a very different place — a place where your word means nothing, where honor means nothing, and it’s all about the power politics of here and now.”

And all 10 Democrats on the Senate Judiciary Committee urged the panel’s chair, Sen. Lindsey Graham (R-S.C.), not to consider any nominee for the vacancy until after the next president is inaugurated, citing Republicans’ decision to block Merrick Garland’s nomination to the Court eleven months before the 2016 election. But with Republicans in control of the chamber, there is little Democrats can do to stop a nominee from being confirmed without at least four GOP defectors.

“There cannot be one set of rules for a Republican president and one set for a Democratic president, and considering a nominee before the next inauguration would be wholly inappropriate,” the Democrats wrote.

Senate Republicans and the White House are ignoring the Democrats’ outrage, with GOP leaders expressing confidence in their strategy. McConnell said Friday night that the Senate would hold a vote on Trump’s nominee, though he didn’t specify when. Trump tweeted Saturday morning that Republicans should select a new justice “without delay,” making clear what he expects of GOP senators.


For his part, Graham said Saturday that he “will support President [Trump] in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg,” citing Democratic treatment of Kavanaugh and former Senate Majority Leader Harry Reid’s (D-Nev.) decision to nix the 60-vote threshold for lower court nominees. (McConnell took it a step further and got rid of the 60-vote threshold for Supreme Court nominees in 2017.) Graham had said in 2018, during Kavanaugh’s contentious nomination, that he would “wait until the next election” if a vacancy opened on the high court in the last year of Trump’s presidency this far into the election season.

Sen. Ron Johnson (R-Wis.), who has been leading a partisan investigation designed to politically damage Biden, insisted a confirmation vote before Election Day “shouldn’t have any impact whatsoever” on the institution.

“Could the Democrats become more partisan when it comes to judicial nominees?” Johnson asked. “Democrats will blow it way out of proportion, they will completely politicize this but we have a Republican president, there’s a Supreme court vacancy, there’s a Republican Senate. ... A confirmation vote is completely appropriate.”

Some Senate Republicans also argue that Democrats would act no differently.

“I don’t know how it can become more partisan than what it is,” said Sen. Mike Braun (R-Ind.), adding that “if the shoe was on the other foot,” Schumer would put a Democratic nominee on the floor. “I don’t think that it would be any different.”

The spotlight is already shifting to the handful of Republican senators who could decide whether Trump’s pick to replace Ginsburg. Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah will face enormous pressure over the nomination — as will some retiring senators that Trump won’t be able to touch soon. Collins on Saturday said the Senate should not vote on a nominee before the Nov. 3 election and almost immediately caught flak from Trump, who told reporters he “totally” disagrees with her.

The issue is already spilling over into key Senate races in North Carolina and Iowa, with Republicans vowing to support an immediate vote for whomever Trump nominates and their Democratic challengers demanding the Senate hold off until next year.

Sen. Thom Tillis (R-N.C.) vowed Saturday to support whoever Trump nominates without even knowing who that is, a blank check that party leaders will cash shortly.

“There is a clear choice on the future of the Supreme Court between the well-qualified and conservative jurist President Trump will nominate and I will support, and the liberal activist Joe Biden will nominate and Cal Cunningham will support, who will legislate radical, left-wing policies from the bench,” Tillis said in a statement, referring to his Democratic opponent.

Cunningham, in response, noted that early voting has already started in North Carolina, and voters “deserve that opportunity to have their voices heard, and then, it should be up to the next president and next Senate to fill the vacancy on our Court.”

Trump approves Oracle's proposed deal with TikTok


President Donald Trump approved a deal Saturday that will allow TikTok to continue operating in the United States, a decision that comes after more than a month of geopolitical turmoil between Washington and Beijing over the future of the video-sharing app.

The deal will make Oracle, a California-based software and cloud company close to Trump's administration, a minority shareholder in TikTok and give it control over the company’s U.S. data. Walmart and multiple U.S. venture capital firms will also own chunks of the company, which will locate its global headquarters in the United States and appoint new U.S. leadership.

The agreement caps off public pressure from Trump to address alleged security threats posed by the app, and his TikTok crusade has been framed as part of a toughening posture against China. Top White House officials and executives from TikTok’s parent company, ByteDance, have been huddled in negotiations all week trying to satisfy competing demands from Washington and Beijing.

“I have given the deal my blessing," Trump told reporters Saturday. "If they get it done that’s great, if they don’t, that’s fine, too.”

The deal reached Saturday alleviates a major burden for TikTok, which had been slated to be banned from U.S. mobile app stores starting Sunday night. Those restrictions are now delayed until Sept. 27 "in light of recent positive developments," the Commerce Department said Saturday. The Treasury Department noted the deal is still subject to conditions of the Committee on Foreign Investment in the U.S., a federal body that reviews deals with possible national security implications.


It's unclear how the Chinese government will respond to the decision, but officials there have been agitated by Trump interfering in the operations of one of their largest tech conglomerates.

Trump had previously given TikTok's parent company, ByteDance, the choice to either find an American buyer or shut down in the United States. The new arrangement falls short of that demand. Beijing-based ByteDance will remain a minority shareholder in TikTok, but see its power over its U.S. operations curtailed considerably.

The deal puts TikTok’s global headquarters in the U.S. Oracle and Walmart will own up to 20 percent of the newly registered company, TikTok said in a statement Saturday. Oracle put its ownership stake at 12.5 percent. Venture capital firms like General Atlantic and Sequoia will also own chunks of the company, according to a person close to the negotiations.

"We are here for you and we are here for the long run," TikTok's interim head, Vanessa Pappas, told users in a statement. "That's why we're thrilled to share that we are working with a U.S. tech partner to ensure that TikTok can continue to provide a home to each and every one of you just as it does today, with no change to our users here in the US or around the world. "

TikTok will also appoint a board of directors made up of U.S. citizens, with the government having the authority to veto members, another person with direct knowledge of the terms told POLITICO. The board would include at least one former intelligence official or other national security expert who would lead a three-person committee overseeing security matters.

"The thinking is this is a structure no one can say has any loopholes," the person said. "There’s no room for shenanigans. It’s far beyond anything any online, consumer-facing company has done."

Both people spoke anonymously before the terms were made final.

Administration officials have raised particular concern about the handling of data from U.S. users, and ByteDance's proposal would turn over data management to Oracle. Oracle would have complete control over the company's data, as well as the ability to review its source code for any security concerns.

"We are a hundred percent confident in our ability to deliver a highly secure environment to TikTok and ensure data privacy to TikTok’s American users, and users throughout the world," Oracle CEO Safra Catz said in a statement. "This greatly improved security and guaranteed privacy will enable the continued rapid growth of the TikTok user community to benefit all stakeholders.”

The president also demanded last month that the U.S. government be compensated for making the deal happen, but acknowledged this week that government attorneys said there was no legal precedent for requiring such a payment. Trump told reporters Saturday that the company has pledged to put $5 billion into an education fund, though the details were not immediately clear.

"We’re going to be setting up a very large fund for the education of American youths and that will be great," Trump said. "That’s their contribution that I’ve been asking for."

He also touted 25,000 jobs in the U.S. that the company has pledged to create, saying "billions of dollars of taxes will be paid every year." TikTok had earlier said it planned to create 10,000 jobs in the U.S. during the next three years.

CFIUS, an interagency panel led by the Treasury Department, discussed the proposal at its meeting Tuesday and subsequently made a recommendation to Trump. The president is not obligated to follow CFIUS's decision.

Cracking down on China's global reach has been a cornerstone of Trump's reelection effort, and he has consistently portrayed his administration as tougher on Beijing than Democratic rival Joe Biden's would be. Trump took credit for forcing changes that he says address national security concerns, even if his insistence on a sale never fully materialized.

Treasury Secretary Steven Mnuchin said Monday that under the proposal, TikTok would create a global headquarters in the U.S. and would be expected to create thousands jobs — commitments that fit squarely with Trump's pledge to bring more companies and jobs to the U.S.

Trump signed an executive order Aug. 6 that prohibited ByteDance from doing business in the U.S. effective Sept. 20. A subsequent executive order gave ByteDance until Nov. 12 to orchestrate a sale of TikTok to a U.S. buyer, but those negotiations appeared to fall apart after Beijing imposed new regulations that gave political leaders there the authority to veto a deal.

The leading suitor, Microsoft, said Sunday that ByteDance turned down its acquisition offer. That left the Oracle arrangement as ByteDance’s main path forward in the U.S., though the company is simultaneously fighting Trump’s executive order in court.


Trump expressed support for the bid involving Oracle in mid-August, telling reporters that Oracle is a "great company" that "would be certainly somebody that could handle it." He also voiced support for Microsoft's acquisition talks and said at the time that the administration had no preference between the two.

But Oracle executives have sought favor with Trump throughout his time in the Oval Office, opting to sit on economic and national security advisory bodies when other Silicon Valley leaders kept their distance. Catz, for instance, was appointed to the President's Intelligence Advisory Board, which guides Trump on national security matters.

They have also been among the big donors to his re-election campaign. Catz also contributed $125,000 to the effort in May and Oracle's billionaire chair, Larry Ellison, hosted a high-dollar fundraiser for Trump in February at his home in Rancho Mirage, Calif.

How Democrats Could Pack the Supreme Court in 2021


Within hours of the death of Ruth Bader Ginsburg, the minds of political activists were already spinning forward—way forward, past Trump’s nominee, past the rushed Senate confirmation process that puts that person on the Court, to what the Democrats should do next year if they win decisively in the election.

One likely framework looks like this: It’s January 2021. Despite a Biden victory and a newly Democratic Senate, the lame-duck Republicans have confirmed a young, conservative justice and locked in a powerful and durable 6-3 majority on the nation’s highest court. Democratic partisans will be furious at Mitch McConnell’s gaming of the system—and at the undemocratic fact that the party that lost the popular vote in 6 of the last 7 presidential elections now controls the Supreme Court indefinitely. Frustrated and powerless to reverse history, the Democrats will reach for the one weapon in their arsenal to fix this: Packing the court with new justices.

Within days, or moments, of the start of new Senate session, Majority Leader Chuck Schumer announces his intention to move legislation that would expand the Supreme Court from nine to 13 members, to “repair the wound inflicted on our Constitution by the Republicans’ refusal to recognize the will of the electorate.” The Senate and House pass the bill, and President Joe Biden signs it on Inauguration Day.

It’s an approach Democrats are already raising. Simple, right?

Time for a reality check.

It’s true that Congress can shape the size of the Court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new Justices. (After Ulysses Grant was elected President in 1868, the number was bumped back up to nine, where it has remained ever since.)

But when it comes to the Court, there are and have been “institutional” concerns that have trumped the simple exercise of political power.

The most famous example was the effort by President Franklin Roosevelt in 1937 to deal with a Court that was striking down much of his New Deal legislation. After his landslide re-election in 1936, he proposed to add one justice for every judge who’d reached the age of 70, up to a total of 15. (It was the “nine old men”, political folklore had it, who were thwarting the president.) Despite his popularity, and the overwhelming control of the Congress by Democrats, the proposal became the first political defeat of FDR’s presidency—and came at the hands of his own party. His own vice-president, John Garner, fought it. The Democratic leader in the Senate rejected it. Chief Justice Charles Evans Hughes, responding to the urgings of liberal court-packing foe Montana Sen. Burton Wheeler, wrote a public letter saying that, contrary to FDR’s concerns, the Court was not overworked at all, thank you very much. The proposal died in Congress before a vote was taken.

Today, one of the more significant institutional voices against expanding the Court is … Joe Biden. In July 2019, Biden said “we’ll live to rue that day” if the Court was expanded. In a debate, he said that it would lead to round after round of expansion and the Court would “lose all credibility.” Senator Bernie Sanders, no stranger to radical ideas, has also said he doesn’t want to pack the court. So has the more moderate Michael Bennet.

But that was before the coming war over RBG’s seat.

If a new Democratic president and Senate are taking power just after a blatant GOP power grab in the face of the electorate’s choice, any reluctance on the part of Biden or a Senate Democrat would face the full fury of the Democratic base. Steve Bannon once famously said that, in politics, “We [the Right] go for the head wound, and your side has pillow fights.” If there’s a Supreme Court seat or two to avenge, the pillow-fight approach might end. Apart from the hunger for political payback, a conservative court shaped by Mitch McConnell would mean the all but certain death of the Affordable Care Act, the potential overturn of Roe v. Wade, and a generation of judicial hostility to the core ideas of the Democratic left.

So, if Senate Republicans won’t stop McConnell from jamming a justice through the Senate, would Senate Democrats really be constrained by their prior doubts about expansion? One of the likeliest consequences of the confirmation of a “lame duck” justice is a battle royal within the Democratic ranks over just that question—hardly what a new President Biden needs, as he deals with multi-trillion-dollar deficits, a still-deadly viral pandemic and lingering economic woes.

As FDR’s scheme showed, court-packing doesn’t have to be as simple as just elevating additional justices to the Court. There are several alternatives that have been debated in legal and academic circles: They range from giving each political party five justices, who would then choose five more; to limiting the terms of judges so that every president gets two picks; to making all 180 federal appeals court judges members of the Court, with panels of nine chosen at random to rule on all matters, including which cases the Court would take up. (This change would require only legislation; proposals for limiting the terms of justices would require amending the Constitution.)

They all have the quality of careful thought and the nonexistent possibility that any of them becomes reality in the midst of a full-blown Constitutional brawl. And if Congress pushes through a restructuring of the Court on a strictly partisan vote, giving Americans a Supreme Court that looks unlike anything they grew up with, and unlike the institution we’ve had for more than 240 years, it’s hard to imagine the country as a whole would see its decisions as legitimate.

There’s a good reason that more than 80 years ago, in a time of turmoil, a Democratic president at the peak of his political power nonetheless found his plans thwarted by members of his own party, who found the cost of tinkering with Constitutional machinery too high a price to pay. If McConnell calls a lame-duck session in the face of an electoral loss to lock in a conservative court majority, however, it’s hard to imagine any such concerns staying the hands of Democrats.

How the Supreme Court could now limit abortion rights


Republicans’ vows to quickly fill the vacancy left by Justice Ruth Bader Ginsburg’s death will dramatically accelerate the push to restrict abortion access, no matter what happens to Roe v. Wade.

There’s no guarantee that even an expanded conservative majority at the Supreme Court would target the landmark decision that legalized abortion nationwide nearly 50 years ago, given some justices’ anxiety about overturning precedent. But even without touching Roe, the Court could greenlight many narrower restrictions that would effectively eliminate access to the procedure for much of the country.

Several cases in the court’s pipeline could allow the justices to effectively cut back access to the procedure without having to confront Roe head on. In a case already before the court, the Trump administration has asked the justices to overturn a federal judge’s decision that lifted restrictions on telemedicine abortions during the pandemic. The court could also soon consider bans on a common second-trimester abortion procedure, known as dilation and evacuation, that at least 10 states have sought to outlaw.

Many other cases are already moving along in federal courts that could give the justices an opportunity to uphold other abortion restrictions. And some of the court’s conservatives, most notably Justice Clarence Thomas, have long been pushing for the court to more aggressively reconsider longstanding precedent on abortion.

"There’s a tremendous amount they could do far short of overturning Roe," said Jennifer Dalven, the director of the ACLU Reproductive Freedom Project. "But it’s no exaggeration to say that who gets to fill Ginsburg's seat will determine whether or not Roe gets overturned entirely."

To be sure, the court in its next term could decide to hear cases that more directly challenge Roe, which guarantees the right to an abortion up to the point of fetal viability, usually about 24 weeks into pregnancy. This includes recent state bans on abortion after a certain point early in pregnancy — which have so far been rejected by lower courts — and others that would outlaw termination of a pregnancy based on a fetus’ race, sex or disability.

A Missouri law that would ban abortions after 8 weeks of pregnancy, for example, is already before the 8th Circuit Court of Appeals, while an Ohio law that would ban abortions when the reason is a fetal diagnosis of Down syndrome is before the 6th Circuit.

Another issue both sides are closely watching is the push by some states to ban Medicaid patients from going to Planned Parenthood for non-abortion care. The Supreme Court will consider a petition on that out of South Carolina at the justices’ next conference in a few weeks.

“That’s an issue SCOTUS will not be able to duck,” predicted Steve Aden, the Chief Legal Officer at Americans United for Life, citing conflicting rulings at the circuit court level.

Chief Justice John Roberts outraged conservatives this summer when he voted with the court’s liberal wing to overturn Louisiana restrictions requiring abortion providers to have admitting privileges at local hospitals. But legal experts say Roberts’ opinion in the case, June Medical Services v. Russo, could actually lay the groundwork for courts to allow more state restrictions on abortion going forward.

While Roberts sided with the court’s liberals, he wrote a separate opinion saying he was bound by recent precedent, citing a similar 2016 case concerning Texas restrictions that he believes was wrongly decided. He said the majority in the Texas case, Whole Woman's Health v. Hellerstedt, inappropriately ruled that courts must weigh the costs of abortion restrictions against their health benefits.

“Roberts said that’s wrong, that you should just look at whether the burdens are severe enough regardless of whether there is any benefit,” said the ACLU’s Dalven. “That would allow states to pass any number of restrictions, even when there is no medical evidence backing it up.”

Already, in the wake of this summer's Louisiana ruling, the Supreme Court in July asked a lower federal court to reconsider its earlier block on two Indiana laws — one that required an ultrasound and an 18-hour waiting period before an abortion and another that requires minors to obtain parental consent before the procedure.

And in August, citing Roberts’ opinion, the 8th Circuit lifted a lower court block on four abortion restrictions passed by Arkansas.

“Around the country, you’re seeing what we on the pro-life side call favorable developments,” Aden said. He said federal courts, which President Donald Trump has filled with conservative appointees, are showing signs of more “deference to state judgement” when evaluating abortion restrictions — a trend he expects will accelerate if the Senate confirms Trump's eventual nominee to replace Ginsburg.

That’s a development that alarms abortion rights groups.

“What we’ve been dealing with for decades are cases that put in place barrier after barrier to push abortion out of reach even when Roe remains the law,” said Julie Rikelman of the Center for Reproductive Rights, who argued the Louisiana case before the Supreme Court. “If that continues, even if abortion is legal on paper, it won’t be a real, meaningful right for so many in the country.”

Legal experts noted that the justices could ultimately use any abortion-related case to revisit Roe, though the most likely vehicle would be state bans on the procedure early in pregnancy. They point to Planned Parenthood v. Casey nearly 30 years ago, when the justices took a case dealing with waiting periods and requirements on parental and spousal notification, and they ended up reevaluating the broader right to an abortion.

“So they really could use any case, and Roe is now on the line like never before,” Dalven said.

Susan Collins says Senate should not vote on SCOTUS nomination before election


Sen. Susan Collins (R-Maine) said on Saturday that the Senate should not vote on the nomination of a new Supreme Court Justice before the Nov. 3 election, arguing the nominee should be chosen by whoever wins the presidency.

“In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins said in a statement.

The Maine Republican, who faces a tough reelection, added that Trump has the “constitutional authority” to nominate a replacement for Justice Ruth Bader Ginsburg and that she does not have an objection to the Senate Judiciary Committee starting the process of reviewing the nominee.



Collins was a key vote in the confirmation of Supreme Court Justice Brett Kavanaugh and will be closely watched as President Donald Trump selects his next Supreme Court Justice. She's considered one of the senators who will play a crucial role in deciding who will or won't replace Ginsburg, who died Friday.

Her statement comes after Senate Majority Leader Mitch McConnell vowed that the Senate would vote on Trump’s nominee. McConnell, however, did not specify a timeline.

Senate Judiciary Chairman Lindsey Graham (R-S.C.) indicated Saturday that he will move forward on the nomination.

Envelope addressed to White House contained ricin, source says


Federal officials intercepted an envelope addressed to the White House that contained the poison ricin, a law enforcement official told The Associated Press on Saturday.

The letter was intercepted at a government facility that screens mail addressed to the White House and President Donald Trump, the official said. A preliminary investigation indicated it tested positive for ricin, a poison found naturally in castor beans, the official said.

The official was not authorized to discuss the ongoing investigation publicly and spoke on condition of anonymity.

Federal investigators were working to determine where the enveloped originated and who mailed it. The FBI, the Secret Service and the U.S. Postal Inspection Service were leading the investigation.

In a statement, the FBI said agents were working to investigate “a suspicious letter received at a U.S. government mail facility” and that there is “no known threat to public safety.”

A Navy veteran was arrested in 2018 and confessed to sending envelopes to Trump and members of his administration that contained the substance from which ricin is derived.

Authorities said the man, William Clyde Allen III, sent the envelopes with ground castor beans to the president, FBI Director Christopher Wray, along with then-Defense Secretary Jim Mattis, then-CIA Director Gina Haspel, Adm. John Richardson, who at the time was the Navy’s top officer, and then-Air Force Secretary Heather Wilson. The letters were intercepted, and no one was hurt.

In 2014, a Mississippi man was sentenced to 25 years in prison after sending letters dusted with ricin to President Barack Obama and other officials.

What you need to know about Barbara Lagoa


President Donald Trump is closely considering two conservative women as an intense political battle heats up to fill Ruth Bader Ginsburg’s seat on the Supreme Court.

According to people familiar with the process, one of those potential picks is Barbara Lagoa, a seasoned Florida judge with Cuban roots.

Here’s what you need to know about Lagoa:

A trailblazer for women and Latinos

A Florida native, Lagoa was the first Hispanic woman to serve on the Florida Supreme Court. If nominated to the nation’s high court by Trump and confirmed by the Senate, she would be the second Latino justice to ever serve. Current Justice Sonia Sotomayor became the first when she was nominated by former President Barack Obama.

If nominated and confirmed, Lagoa would be the fifth woman to serve on the Supreme Court.

She's been vetted She could serve for a long while

At 52, Lagoa would be the youngest justice on the Supreme Court, just a few months behind one of Trump’s other nominees, Neil Gorsuch. A lifetime appointment to the court would allow her to serve for decades to come.

A deep legal background

"She has been the essence of what a judge should be,” DeSantis said when he nominated her.

Personal life

Lagoa is married to Paul C. Huck, Jr., an attorney. They have three daughters.

High court loses leading advocate for equality, immigrants


Ruth Bader Ginsburg's death could swing the legal trajectory of issues she championed on the Supreme Court, including LGBTQ, gender and immigrants' rights.

The loss of the 87-year-old justice's strong liberal voice could leave the high court deadlocked on contentious issues during the election year and push it further to the right for decades to come.

Ginsburg joined the court's majority in a handful of high-stakes rulings during the Trump administration, such as its surprising, 5-4 decision rejecting President Donald Trump’s decision to end the Obama-era program protecting so-called Dreamers — those brought to this country as children — as well as a 2019 ruling that overturned the administration’s attempt to add a citizenship question to the 2020 census.

But both of those issues are still in play, as neither ruling foreclosed the administration from taking a different path to implementing those policies, leaving the door open for a more conservative court to eventually rule in Trump’s favor.

Trump has since instructed the Commerce Department to exclude undocumented immigrants from the census count for the purpose of congressional reapportionment. That effort was blocked by a federal court earlier this month, but the administration appealed the case to the Supreme Court just last week.

Prior to the Trump administration, Ginsburg was a key vote in support of enshrining protections for the LGBTQ community.

She joined the majority opinion in Windsor v. United States, the 2013 case that struck down a law preventing same-sex couples from receiving the same federal benefits as heterosexual couples.

In the Supreme Court’s landmark 2015 ruling legalizing gay marriage, Ginsburg also sided with the 5-4 majority.

All of these cases were split along ideological lines, with a conservative member joining the court’s liberals — suggesting that an even greater conservative edge on the Supreme Court will change the outcome on similar issues in the future.

Ginsburg's death also leaves a void from her outsized voice on gender equality. She served as director of the Women’s Rights Project of the American Civil Liberties Union earlier in her career, arguing several cases before the Supreme Court.

And after joining the high court in 1993 as only the second female justice, she would go on to pen several landmark opinions on gender discrimination, including in the 1996 case United States v. Virginia, which invalidated the Virginia Military Institute’s male-only admission policy.

When the Supreme Court ruled in 2007 that Lilly Ledbetter, an employee at GoodYear Tire, could not sue over sex discrimination because she waited too long to file the complaint, Ginsburg read her searing dissent of the decision from the bench.

"Title VII was meant to govern real-world employment practices, and that world is what the court today ignores,” Ginsburg said in her rebuke, referring to the equal employment clause of the 1964 Civil Rights Act.

The case inspired Congress to pass the Lilly Ledbetter Fair Pay Act, which reset the 180-day statute of limitations with each paycheck. Two years after the high court's decision, President Barack Obama signed the bill into law in 2009.

Ginsburg's absence could also slow efforts by Democrats and several states to finally ratify the Equal Rights Amendment, which would guarantee equal treatment under the law regardless of sex.

The Equal Rights Amendment was passed by Congress in 1972, but by the 1982 ratification deadline, only 35 of the necessary 38 state legislatures had approved it. While Virginia, following Nevada and Illinois, has since approved the amendment, five states have also rescinded their ratification, creating murky legal questions that will likely land before the Supreme Court.

It’s unclear how Ginsburg — who was historically a strong supporter of women’s rights — would have voted on extending the 1982 deadline, but she did say she would have liked for supporters to “start over” with a new ERA, rather than trying to revive the original one.

"I would like to see a new beginning," Ginsburg said. “There is too much controversy about latecomers."

What you need to know about Amy Coney Barrett


The death of Supreme Court Justice Ruth Bader Ginsburg has given President Donald Trump the rare opportunity to nominate a third Supreme Court justice, and Senate Majority Leader Mitch McConnell has pledged to hold a vote on her replacement.

The president’s recently updated list of possible candidates includes a number of conservative judges and legal figures who would likely tilt the court further to the right. One name that has emerged as one of the frontrunners has already been interviewed by Trump. A few others the president is considering have not yet been interviewed.

Here’s what you should know about Amy Coney Barrett:

A reliable conservative

Religious conservatives would have much to be pleased with Barrett, a devout Catholic.

Barrett has stated that “life begins at conception,” according to a 2013 Notre Dame Magazine article. She also said that justices should not be strictly bound by Supreme Court precedents, a deference known as stare decisis, leaving open the possibility that she could vote to overturn Roe v. Wade if seated on the court.

She could serve for decades

At 48-years-old, Barrett would be the youngest justice currently on the Supreme Court, making it entirely plausible that Barrett could leave her mark on a swath of cases for a generation or more.

A protégé of Scalia

Barrett clerked for the late Justice Antonin Scalia after graduating from Notre Dame University Law School. Like Scalia, Barrett is a strict originalist and would “enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it,” she wrote in a 2013 Texas Law Review article.

She can go toe to toe with Democrats

During her confirmation hearing to serve on the 7th U.S. Circuit Court of Appeals in 2017, Barrett engaged in a contentious exchange with the Senate Judiciary Committee’s top Democrat, Sen. Dianne Feinstein. The California Democrat pressed Barrett on her deeply held religious beliefs and how they could impact her jurisprudence, which led to criticism that Democrats' questioning was anti-Catholic.

“The dogma lives loudly within you, and that’s of concern when you come to big issues that people have fought for years in this country,” Feinstein said to Barrett.

Barrett responded sharply: “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”

She’d join a small club.

Barrett, if nominated and confirmed, would be only the fifth woman to serve on the Supreme Court. She’d join Justices Elena Kagan and Sonia Sotomayor on the bench.

Harriet Miers’ 2005 nomination was the last time a Republican president picked a woman for a seat on the court.

Her record

Barrett has served less than three years on the 7th Circuit after working as a law professor at Notre Dame University for nearly two decades.

Her short tenure on the bench means there’s been little time to develop a body of legal opinions, which lawmakers from both sides of the aisle would likely scrutinize. Republicans, having been burned in the past by GOP presidents’ nominees who ended up voting more liberally, would also likely demand reassurances from Barrett before granting her a lifetime appointment to the court.

Personal life

Barrett, born and raised in New Orleans, is married to Jesse Barrett, a former assistant United States Attorney in the Northern District of Indiana. Together they have seven children.

Dem donors smash ActBlue's daily record after Ginsburg's death


Democratic online donors set a new one-day fundraising record on ActBlue in the hours following Supreme Court Justice Ruth Bader Ginsburg's death, pouring money into Democratic Senate campaigns and other causes as Republican senators pledge to vote for a new justice nominated by President Donald Trump.

Donors gave more than $42 million to candidates and groups Saturday via ActBlue, the digital fundraising platform widely used by Democratic candidates and political committees, with more than eight hours to go in the day, according to the ticker on the front page of ActBlue's website. The service's previous record was only months old, set when donors flooded money to candidates, bail funds, racial justice causes and other groups on June 2, during the height of the protests over police brutality after George Floyd was killed by an officer in Minneapolis.

ActBlue's ticker also showed online givers sending more than $21 million through the platform on Friday night in the hours after Ginsburg's death was announced. The pace picked up significantly after Senate Majority Leader Mitch McConnell announced that the Senate would hold a vote for Trump's nominee despite the presidential election being less than two months away.

The sharp uptick in ActBlue donations illustrated Democrats' grief and concern over Ginsburg's passing, with Trump potentially on the verge of appointing a third Supreme Court justice in four years. The surge also demonstrated, again, the explosion in activism and political giving on the left that Trump's election prompted. In September 2016, donors gave $58.7 million to candidates and causes through ActBlue in the entire month, according to ActBlue's blog. But anti-Trump fervor in the years since then has seen online fundraising totals multiply for Democrats and left-leaning organizations.

Until fundraising reports are filed in October, it won't be clear which groups or candidates were on the receiving end of this enormous influx of cash. But Democrats running for Senate this fall appear to be getting a large portion of the contributions. Crooked Media's "Get Mitch or Die Trying Fund," aimed at electing Senate Democrats, brought in more than $10 million from Friday night to Saturday afternoon.

ActBlue donors also broke the site's one-hour fundraising record multiple times Friday night, between 9 and 11 p.m. During the 10 p.m. hour, contributions topped $6.3 million. The previous one-hour record was set at $4.3 million just a few weeks ago, when Joe Biden accepted the Democratic presidential nomination.

Money continued to flow through ActBlue at a breakneck pace Saturday, averaging well over $1 million every 15 minutes for large portions of the day. WinRed, the online donation platform used by many Republicans including Trump, does not have a public-facing ticker on its website.

“There is this moment in time we are in where you want to quite literally fight for your beliefs, for the future, and it is no surprise that as we launch into final days before the election that we are seeing an explosion of contributions," said Taryn Rosenkranz, a Democratic digital fundraising consultant. "Democrats are taking their rage and channeling how to use it for good and that’s their contribution. Their dollars working for change. We have the infrastructure there for this moment — people know this is their greatest impact they can make.”

The outpouring of cash began organically, as many candidates and organizations held back from sending fundraising solicitations in the hours after Ginsburg's death. Biden's campaign did not include a donate button in an email to his supporters Friday night.

But by Saturday morning, Biden running mate Kamala Harris signed a fundraising email with the subject line: "Today, we fight for her legacy." The explicit appeals from campaigns will likely prolong the gush of money flowing through the Democratic Party in the coming days.

"Mitch McConnell wasted no time declaring he would bring Trump’s appointee to a vote on the Senate floor, where he holds a Republican majority," the Harris fundraising appeal reads. "To Joe and me, it is clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg."

Trump is also raising money off of the Supreme Court vacancy. His campaign texted supporters on Saturday, urging them that they "need to fill the Supreme Court vacancy without delay" and Trump "needs you to step up."

Ginsburg’s death leaves Obamacare in greater danger than ever


The death of Justice Ruth Bader Ginsburg just cut the odds of Obamacare’s survival in a lawsuit once dismissed as a longshot.

Before Ginsburg’s death Friday night, few legal observers thought that the Supreme Court was gearing up to overturn or significantly wound the health care law in a case the justices will hear exactly one week after Election Day. The new vacancy increases the likelihood the court could undercut Obamacare’s popular insurance protections for preexisting conditions, especially if President Donald Trump can quickly install a new justice, or even drag out the legal fight.

The Trump-supported challenge to the Affordable Care Act was largely shrugged off when Texas and a band of conservative-leaning states over two years ago claimed the law was rendered unconstitutional after Congress eliminated the tax penalty for skipping health insurance. But the lawsuit has been validated by Republican-appointed justices in lower courts, and Obamacare will have one less ally on the conservative-dominated bench when the Supreme Court considers the law’s fate this fall.

"I’ve told people the big wild card is whether or not Ginsburg makes it to hear the case. It turns out she didn’t, and that introduces a lot of uncertainty,” said Nicholas Bagley, a University of Michigan law professor who’s tracked the lawsuit and supports Obamacare.

Here’s how the case could play out:

Two conservative justices save the law

The Supreme Court could agree with the Republican states that the individual mandate should be struck down but preserve the rest of the law – the health insurance subsidies, Medicaid expansion, protections for people with pre-existing conditions and more. Such a decision would preserve the status quo, in which people are no longer penalized for not having health insurance.

Legal experts contend this scenario remains a strong possibility. Few think Chief Justice John Roberts, who’s emerged as the court’s ideological center, is now ready to ditch Obamacare after brokering a compromise to save it in the first major challenge to the law in 2012.

And one of Trump’s appointees, Justice Brett Kavanaugh, has a record of seeking to preserve as much of a law as possible if parts are flawed – a legal concept known as “severability.” An opinion Kavanaugh authored on a robocall case this summer, which was joined by Roberts and fellow conservative Justice Samuel Alito, drove this point home, asserting that the court “presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

Some saw the opinion as a hint of how Kavanaugh would address the Obamacare case. Roberts separately has written similarly about severability, and stalwart conservative Justice Clarence Thomas’ opinions have endorsed targeted relief for parties claiming damages.

“No justice in the current court has said anything about severability that helps Texas’ argument,” said Jonathan Adler, a conservative law professor at Case Western Reserve University who’s been critical of the red states' lawsuit. “It’s just that not every justice is on record or has endorsed a holding that clearly rejects Texas’ position.”


A tie, followed by legal limbo

There’s the possibility that the legal fight over Obamacare could be extended even longer if Trump and Senate Majority Leader Mitch McConnell fail to push through a new justice in time for the Nov. 10 hearing on Obamacare.

If only Roberts sides with the court’s three liberal justices to uphold Obamacare, that would leave a 4-4 tie. This would ultimately kick the case back to a conservative federal judge in Texas, Reed O’Connor, who in 2018 ruled that the entire law was invalid. O’Connor would likely reach a similar conclusion, triggering another round of appeals that could bring the case back to the Supreme Court months or even years later.

It’s the type of scenario the justices tried to avoid when they accepted the Obamacare case rather than let it go back to O’Connor as a federal appeals court previously ordered, Bagley noted. However, the bench’s thinking may have changed. It’s not clear which justices agreed to hear the case – it only takes four votes – though legal observers believe it was Ginsburg and her three liberal colleagues.

The insurance protections are axed, the rest stays

Some Obamacare supporters braced for this possibility even before Ginsburg’s death. The Obamacare statute explicitly links the individual tax penalty to the law’s key coverage protections, including those for pre-existing conditions. The court could find that private insurers are no longer bound to these mandates if Americans aren’t somehow compelled to buy coverage.

The Obama administration itself in 2012 argued this very point before the Supreme Court as it tried to save the individual mandate. It was also the original position adopted by Trump’s Justice Department two years ago after the GOP states’ lawsuit was filed before it argued the entire law should fall.

Such a ruling would allow the conservative justices to assert they’re not tossing the law, just removing its problematic parts. But it would throw the insurance marketplaces into chaos and force Congress or whoever’s president to consider emergency measures.

“I think those provisions – the protections for people with pre-existing conditions – are most at risk in this scenario,” said Katie Keith, a health law professor at Georgetown University who focuses on ACA litigation. “That’ll be the issue to watch for during oral argument.”

Still, Adler thought the court is unlikely to slice up the law this way, given that the Trump administration is no longer arguing for it. “I don’t see the court really freelancing on that,” he said.

A legislative rescue

A ruling on the case isn’t expected until early next year. Should the court cut away at the law or extend the legal fight, that could put pressure on Congress to act. What comes next depends on the outcome of the November elections.

If Joe Biden is elected president and Democrats have full control of Congress, they could look to pass legislation to render the lawsuit moot – for instance, by axing the entire individual mandate and shoring up language around insurance protections. However, that could require blowing up the Senate filibuster to ensure Republicans can’t block it, or using a fast-track budget procedure that could get complicated.

Democrats could also face pressure from the increasingly vocal progressives within their ranks to do much more if a legislative fix is on the table. In addition to more Obamacare subsidies, Biden has promised to pass a public option – a heavy lift that may become easier politically if the court effectively forces Congress into action to salvage guaranteed coverage.

With a divided Congress and Trump still in the White House the law’s fate would be even murkier. Trump and vulnerable Republicans facing tough election prospects contend they want to preserve preexisting coverage protections, but for years they have failed to agree on a plan. Though Trump has consistently teased a new health plan this summer, there’s no evidence one is on the way.

No matter what, a quick rescue of the law’s coverage protections would be anything but a sure bet.

“The one thing we can say for certain is that health care is hard,” Bagley said. “It’s hard for Democrats to get behind a single plan because there are lots of ideas, and it’s even harder for Republicans who fight over whether we need health reform at all.”

He added: “If you’re going to bet on the Democrats coming up with a nimble, quick, live response, I’m not sure that’s really in the cards.”

Trump team weighs whether to interview new candidates for high court


President Donald Trump and his team are weighing a key decision this weekend: whether to nominate a Supreme Court candidate who already has been carefully vetted and interviewed, or take extra time to select someone newer to his process who could yield a bigger election-year payoff.

As he put two men on the Supreme Court during his term, Trump also interviewed Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit, according to two people familiar with the matter. Barrett is considered the leading contender because of her conservative credentials, Trump’s interest in picking a woman and the fact that she’s already been interviewed, according to four people familiar with the White House process.

But Trump is also considering two other women who he had not interviewed but emerged on his expanded list this month, according to four people familiar with the process. One is former Florida Supreme Court Justice Barbara Lagoa, now a federal appeals court judge who is Cuban American, has the strong backing of Trump ally Gov. Ron DeSantis and whose nomination could support Trump’s efforts to win Florida this fall.

In a call with Senate Majority Leader Mitch McConnell Friday, Trump mentioned Barrett and Lagoa, according to one of the people.

Another is Allison Jones Rushing, an appeals court judge in her late 30s who would be among the youngest justices ever to serve on the court, ensuring a conservative in the seat for even longer than others.

Trump is expected to announce a nomination by the middle of next week, according to two people familiar with the plans, allowing for a few more days of mourning for Justice Ruth Bader Ginsburg, who died Friday.

A third person said if he waits until after Wednesday the White House will have trouble pushing a replacement through this year. “It’s important to simplify the process,” said a former White House official.


The president on Saturday called on fellow Republicans to move quickly in filling the seat. “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” Trump tweeted. “We have this obligation, without delay!”

Lagoa is on a list of names that Trump released earlier this month as possible replacements. But unlike Barrett, people close to the process say Lagoa has demographic and geographic advantages in her favor when it comes to the politics of Senate confirmation and the presidential election: Lagoa hails from Trump’s must-win state of Florida and she’s Cuban American.

“Justice Lagoa is perfect,” said one source, who has discussed the matter with White House officials but was not authorized to speak on record. “The president wants a conservative jurist and he wants to win the biggest battleground. How do Democrats in the Senate vote against a Latina?”

A second Republican who has close ties to Florida said that “Lagoa is at the top of the list. She checks a lot of boxes.”

But some conservative groups could object based on what they see as Lagoa’s insufficient record on abortion, the ultimate litmus test issue on the right. One prominent GOP senator, Josh Hawley of Missouri, has already said he would only vote for a nominee who has affirmed that Roe v. Wade was “wrongly decided.”

Barrett came to be well-liked among white evangelicals after the former law professor was criticized during a 2017 confirmation hearing by Democratic Sen. Diane Feinstein, who said “the dogma lives loudly within you, and that’s a concern,” a reference to her Catholic faith and the issue of abortion. “The base loves her. They want her,” said a former Senate Republican aide. “She’s young, Catholic, conservative.”

Barrett has her own geographic advantage: She hails from Indiana, the home state of Vice President Mike Pence, and she’s well-known and liked by the White House legal team.

One risk for her nomination is that she supported a November 2018 statement from Supreme Court Chief Justice John Roberts, who criticized Trump for blasting an opinion from an “Obama judge.”

Rushing has served on the 4th U.S. Circuit Court of Appeals for the past 18 months.

She’s been a darling of social conservatives and a target of Democrats and LGBTQ groups for a previous internship at the Alliance Defending Freedom, a conservative Christian nonprofit based in Arizona. Rushing was confirmed on a straight party line vote in 2019.

Trump could conceivably interview Lagoa, Rushing or any others by phone or video if he wanted to move quickly on newer names.

“Historically those have been done by the president or the vice president,” said Carrie Severino, president of the Judicial Crisis Network. “I don’t know how 2020 changes that in terms of traveling and getting people in from different places. But I expect that there will be interviews happening in the next few days.”

During his earlier nomination decisions, Trump also interviewed Amul Thapar and Raymond Kethledge of the U.S. Court of Appeals for the 6th Circuit, Tom Hardiman of the U.S. Court of Appeals for the 3rd Circuit and William H. Pryor Jr. of the U.S. Circuit of the Court of Appeals for the 11th Circuit, according to two people familiar with those processes.

McConnell vowed Friday night that the nominee will be put to the Senate floor for a vote, though some of his fellow Republicans balked and Democrats quickly called for a delay until after the Nov. 3 election when control of the White House and Senate could flip.

Meridith McGraw and Nancy Cook contributed to this report.

The 6 Republican senators who will decide the Supreme Court fight


Ruth Bader Ginsburg’s death on Friday kicked off what is sure to be the most consequential Supreme Court confirmation fight in decades — and throws a spotlight on a handful of senators.

The universe of potential swing votes in the Senate is surprisingly small considering how high the stakes are. The following senators will be under enormous pressure — from Senate Majority Leader Mitch McConnell, Minority Leader Chuck Schumer and President Donald Trump — to either fall in line, or break from their party in the most dramatic fashion.

McConnell’s decision to hold a vote on Ginsburg's replacement forces him to balance his long-standing desire to cement a conservative legacy in the federal judiciary, while also retaining his power as majority leader.

That there are so few potentially in play lawmakers reflects the hyper-partisan nature of the political landscape in 2020. With less than 45 days left until the election, both sides have largely retreated to their respective sides.

In the coming days, these senators will be forced to answer several important questions. Would you vote to confirm a Supreme Court nominee before the election? If a confirmation vote is held in the lame-duck period, would your decision hinge on whether the presidency and the Senate flip?

With 53 Republicans in the Senate, McConnell can only afford to lose three votes. Vice President Mike Pence could break a 50-50 tie if needed. Here’s who to watch for:

The true swing votes

During Trump’s impeachment trial, these GOP senators — Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah — were among those deciding whether the trial would feature testimony from witnesses, as Democrats had been pushing.

This time around, the “Three Amigos” are equally as important, and they each find themselves with a slew of different factors to consider.

Collins recently told The New York Times that she would not vote in favor of a Supreme Court justice in October — “I think that’s too close, I really do” — and would oppose seating a new justice in the lame-duck period if Joe Biden defeats Trump.

But in her statement offering condolences for Ginsburg’s loss on Friday night, Collins made no mention of her thinking on the issue. Collins was a key vote in confirming Supreme Court Justice Brett Kavanaugh in 2018, and she faced a torrent of angry Democrats back in Maine for her decision to back Trump’s nominee. She’s already locked in a tight reelection battle with her Democratic challenger, Maine House Speaker Sara Gideon, in what is shaping up to be one of the more expensive races this cycle.

Collins has long championed her moderate credentials; she’s pro-choice, for example, and has also voted in favor of Supreme Court nominees chosen by presidents of both parties. But the stakes are perhaps the highest they have been for the future of abortion rights in the United States.

She’s also facing pressure from fellow Republicans. Sen. Josh Hawley (R-Mo.), a hard-line conservative who himself is on Trump’s short-list for the Supreme Court, issued a direct plea to Republican senators like Collins, tweeting on Saturday: “Two months ago, I pledged to vote only for #SCOTUS nominees who understand and acknowledge that Roe was wrongly decided. I stand by that commitment, and I call on my fellow Republican senators to take the same stand.”

Murkowski, too, is pro-choice and a true centrist within the GOP conference. In an interview with Alaska Public Radio on Friday before Ginsburg’s death was announced, Murkowski declared that she “would not vote to confirm a Supreme Court nominee.” But Murkowski, too, did not stake out a position immediately following Ginsburg’s passing, using her late-Friday statement to instead pay tribute to the late justice.

And then there’s Romney. The 2012 GOP presidential nominee joined Collins as the only Republicans to vote in favor of calling witnesses in Trump’s impeachment trial — and he was the only GOP senator to vote to convict the president.

His spokeswoman pushed back against a rumor Friday that the senator would oppose seating a new Supreme Court justice before the inauguration in January. Romney’s statement on Ginsburg’s passing did not hint at his thinking on the possible confirmation fight.

Cory Gardner

The Colorado Republican gets his own section because, as a moderate who faces an increasingly difficult reelection fight in a blue state, the upcoming skirmish could make or break him. He has been silent since the news of Ginsburg’s death on Friday, and has largely avoided reporters in the Capitol in recent months.

His fellow vulnerable Republicans — including Martha McSally of Arizona and Thom Tillis of North Carolina — have already said they plan to support McConnell’s efforts to put a Trump nominee on the Senate floor as soon as possible. For Gardner, the political calculation is much more difficult.

If he opposes Trump and McConnell, he will certainly lose support on the right. And he already has strong opposition from Democrats, who view him as a rubber-stamp for McConnell. So this will be a critical choice for Gardner.

The institutionalists

You’ve heard this word thrown around before, especially during the impeachment trial and other Trump-fueled controversies that have tested the Senate. But this time, there are two we’re keeping a close eye on: Sens. Lamar Alexander (R-Tenn.) and Pat Roberts (R-Kan.).

Alexander, who has been serving in the Senate since 2003, and Roberts, who entered the upper chamber in 1997, are both retiring and have less than a few months left in office. They’re viewed as pragmatic institutionalists, and the timing of the Supreme Court vacancy means they won’t have to worry about a bombastic tweet from the president hurting their political future.

Both men offered tributes and condolences for Ginsburg’s loss, but have yet to comment on how they view the upcoming battle.

Democrats are likely to put immense pressure on them in the coming days, arguing that supporting McConnell’s efforts would be destructive to the Senate as an institution in the long-term.

Ginsburg left a long environmental legacy


Justice Ruth Bader Ginsburg, who died Friday at age 87, helped establish critical Supreme Court precedent that empowered EPA to address the greenhouse gas emissions driving climate change.

The landmark ruling she joined in 2007 that affirmed EPA’s power set up the Obama administration to issue rules limiting carbon pollution from cars, power plants and other sources — and set up a contentious legal battle over the extent of federal authority still being waged today.

Though the core of her legacy centered on women’s rights and gender equality, Ginsburg was also a reliable vote over the decades in favor of environmental protections, and activists mourned her loss late Friday.

“Through her expansive mind, sound temperament and unwavering judicial integrity, she plied the Constitution as a living instrument of American life, lending it meaning in the life of us all,” said Gina McCarthy, president of the Natural Resources Defense Council and former EPA administrator.

"Our communities are safer, healthier and more free because of RBG," said League of Conservation Voters President Gene Karpinski.

Ginsburg was clearly aware of the threats posed by climate change. At an event in December, she cited Swedish teen climate activist Greta Thunberg as one of the future leaders giving her hope, according to Vanity Fair.

“The young people that I see are fired up, and they want our country to be what it should be,” she said. “One of the things that makes me an optimist are the young people.”


Ginsburg was part of the five-justice majority in the high court's first-ever ruling on climate change, 2007’s Massachusetts v. EPA, that said the Clean Air Act gave EPA the authority — and, effectively, a mandate — to regulate greenhouse gases from automobile tailpipes.

That ruling led directly to the Obama administration in 2009 beginning to regulate carbon dioxide emitted from cars and trucks for the first time at the federal level.

Then in 2011, Ginsburg authored another ruling, American Electric Power v. Connecticut, that reiterated EPA’s authority to target greenhouse gases — this time for a unanimous court.

Technically, Ginsburg ruled against several states that wanted to sue private power companies under public nuisance laws to set a cap on their carbon dioxide emissions. The prior 2007 ruling meant EPA’s authority blocked the states’ federal common law claims, Ginsburg wrote.

But environmentalists and Democrats saw a bright silver lining — confirmation that the federal government can and should be acting on climate change already.

The Obama administration subsequently moved to issue rules for power plants, at the time the nation’s top source of greenhouse gases, after Congress failed to pass a cap-and-trade bill.

The regulatory and legal fighting over those power plant rules and their Trump administration replacements has meant power plants have not yet actually been subject to carbon dioxide regulation. But the specter of federal rules — along with market pressure from cheap natural gas and renewables — helped cause a huge shift in the nation's electricity mix: The U.S. is projected to generate just 20 percent of its electricity from coal this year, compared with almost half when the court ruled.

Coincidentally, Ginsburg’s ruling could play a key role in an upcoming legal battle over climate change compensations.

More than a dozen cities, counties and states in recent months have sued fossil fuel companies in state courts in a wave of lawsuits intended to make the corporations pay for climate change-related harms such as extreme weather and sea level rise. The companies have tried to move those cases out of the states and into federal courts — where they probably would be blocked as Connecticut’s suit was in 2011. But three appellate courts that have weighed in on the jurisdictional question have sent the cases back to the state courts, which could open the companies up to untold liability.

When the Supreme Court returns for its fall term in a few weeks, the eight remaining justices are slated to decide whether to wade into the jurisdictional fight in these climate change suits. If the justices allow them to continue in state courts, a fresh wave of litigation could soon hit greenhouse gas emitters.

While Ginsburg was a key voice in defining the Supreme Court’s short history on climate law, she also has a long record of voting for other types of environmental protection.

In 2001, she joined a unanimous court in ruling that EPA cannot consider implementation costs when deciding on national air quality limits for smog, soot and other major pollutants. It is considered one of the high court’s most important environmental rulings, and those EPA regulations are credited with saving and improving millions of lives.

Six years ago, Ginsburg led a 6-2 majority that reversed a lower court and upheld an Obama rule limiting air pollution that floats across state lines, saving a regulation credited with helping shut down some of the nation's dirtiest power plants.

And in April, she was part of a six-justice majority that said pollution that travels into waterways via groundwater can be subject to the Clean Water Act. While the high court's new standard was narrower than environmentalists had hoped, it nonetheless opens up companies to new potential liabilities.

Indeed, Ginsburg was a consistent vote in favor of broad Clean Water Act jurisdiction as questions about the reach of the 1972 law became a legal quagmire over the past two decades. Those questions are widely expected to reach the high court again in the coming years.

She joined with the court’s liberals in the dissent in Solid Waste Agency of Northern Cook County v. United States in 2001, in which the majority ruled that isolated ponds and wetlands are out of federal reach. In the 2006 case Rapanos v. United States, which resulted in a splintered 4-1-4 decision, Ginsburg joined an opinion by then-justice John Paul Stevens that argued for sweeping federal jurisdiction over virtually any water feature.

The Trump administration earlier this year finalized a regulation enshrining a narrow definition of federally protected waterways that legal experts say is on questionable ground, given that it is primarily based on then-Justice Antonin Scalia’s plurality opinion in the 2006 case, which garnered the backing of only four of the justices. Challenges to the Trump administration’s rule have been filed by Democratic attorneys general, environmental groups and property rights activists and are in their early stages in district courts across the country.

Annie Snider contributed to this report.

'Without delay!': Trump urges Republicans to move quickly on Ginsburg replacement


President Donald Trump on Saturday said Republicans have an “obligation” to quickly fill Ruth Bader Ginsburg’s seat on the Supreme Court.

“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” Trump tweeted, tagging the GOP party handle. “We have this obligation, without delay!”

Senate Majority Leader Mitch McConnell has vowed to hold a vote for Trump’s nominee, igniting a political firestorm between Democrats and Republicans 45 days before Election Day.

Trump is expected to nominate his pick as soon as the middle of next week, according to two people familiar with the plans.

Democratic nominee Joe Biden has said the winner of the November election should nominate a justice.

The Supreme Court announced Ginsburg's death Friday from complications from pancreatic cancer. She was 87.

Millions of children may miss pandemic food aid as states scramble to meet new Trump administration rules


Millions of low-income children are likely to miss out on special benefits that help their families buy groceries this month because the Trump administration has imposed eligibility requirements that prevent some states from getting the payments out before the money expires.

Congress created the program earlier this year to help make up for free and subsidized meals that children were missing while schools were either shut down or virtual due to coronavirus.

States were able to figure out who should get the payments in the spring and summer, when schools nationwide were fully closed for in-person learning. But now, as some schools re-open with a mix of virtual and in-person classes, the Agriculture Department says states must also tackle the complex job of figuring out how many days each student is not physically in school and distribute the aid to all who are spending all or part of their weeks learning virtually. That decision came the first week of September, too late for many state agencies to determine who’s eligible before the money runs out on Sept. 30.

Anti-hunger advocates worry the loss of extra payments for food will further exacerbate childhood hunger rates, which are already at the highest levels the country has seen in decades. Families who received the first tranche of payments in the spring or summer spent it almost immediately, and Census data showed that child hunger rates dropped markedly in the week after the benefits started going out in each state.

“We are very frustrated,” said Robert Gordon, director of the Michigan Department of Health and Human Services. “It’s unfortunate that our students will be the ones that suffer.”

A spokesperson for the USDA acknowledged that some states are “finding it difficult to meet the statutory requirements.”

“Unlike in the spring when schools across entire states were closed, there is currently a lot of variation,” the spokesperson said in an email to POLITICO. “This makes this complicated benefit even more difficult to administer.” The department is continuing to work with states on the issue, the spokesperson said.



The program, known as Pandemic-EBT or P-EBT, gives households about $5.70 per day for every school day missed. The money is distributed exactly like food stamps — on debit-like EBT cards. The aid can only be used to buy food.

Millions of households have so far received one-time payments of about $250 to $450 per child, depending on where they live.

The problem now, state officials say, is that the Agriculture Department has made it too cumbersome to apply for another round of benefits before funding runs out on Sept. 30. Congressional leaders and the White House have failed to get anywhere close to a deal on another round of stimulus aid and Congress has yet to pass a spending bill to keep the government funded past the end of the fiscal year.

As the school year began for many districts in August and early September, USDA was slow in deciding whether states could re-start P-EBT benefits. Officials at USDA’s Food and Nutrition Service finally told states in late August that they could go ahead and plan for another set of payments.

At first, USDA suggested it was acceptable for states to issue benefits only to students in districts where all instruction was virtual because of the extremely short time frame to determine who qualified.

About a week later, however, officials at USDA changed their mind and said that this simpler option was not going to be allowed. That last-minute decision sent states scrambling.

The logistics of reaching all eligible kids — including those in schools doing a mix of in-person and online instruction — are so complicated that several states say they will be unable to get aid to any of qualifying schoolchildren this month.

Two weeks ahead of the deadline to get the last tranche of the money out, only nine states have been approved: Hawaii, Illinois, Maryland, Massachusetts, Montana, North Carolina, Ohio, Tennessee and Virginia.

USDA did not answer questions from POLITICO about how many other states have submitted plans to issue more Pandemic-EBT aid.

The Michigan Department of Health and Human Services had planned to issue $93 per student to the families of more than 100,000 kids across the state that they know qualify for free and reduced lunch and whose districts are conducting virtual classes.

But officials were informed of the change in policy on Friday Sept. 4, the afternoon before the Labor Day weekend. The decision means that Michigan won’t be able to distribute aid at all in September, state officials said.

“It’s too late to comply with their new directive,” Gordon said. “They opened the door and then they closed the door — and the result is leaving tens of thousands of kids in Michigan without food.”


In Pennsylvania, officials had planned to give out $128 per student to some 330,000 low-income students. But there simply isn't time to do so under USDA’s new directive, officials told POLITICO.

“It’s just hard to understand why the federal government is doing what it’s doing,” said Teresa Miller, secretary of the Pennsylvania Department of Human Services. “This is the latest in a series of really frustrating decisions — at every turn recently they have been very keen on returning everything back to normal. But we all know the world is not back to normal.”

Pennsylvania intended to get benefits to the students in low-income schools that were doing virtual-only learning, leaving off hybrid-option schools, because officials said they didn’t have the time or the data to reach all students before the program lapsed.

The USDA’s change in policy means they are not able to issue any Pandemic-EBT benefits to students this month.

The multiple school district setups — all virtual, all in-person or hybrid of the two — has made the program much more complicated than it was when the vast majority of schools were shut down.

At hybrid schools — where students are doing some combination of virtual and in-person instruction — it’s extremely complicated to get data on each individual student’s schedule as the school year started: Should one student receive P-EBT benefits to replace three days of missed meals, or two? Another student may be learning remotely all five days. A single family with multiple children might have students in all different setups.

Many school districts also don’t know how many students qualify for free and reduced lunch until a few weeks into the school year after families fill out necessary paperwork.

Once school districts have the lists of eligible students, that information has to be transferred over to the state agencies that administer the Supplemental Nutrition Assistance Program, still known to many as food stamps.

Those agencies then determine which students at different schools are in the same households. Then, they check to see if the families are already on SNAP. If they are on the program, the benefits can be directly loaded on their EBT card. If they’re not, the state has to mail a new EBT card to the household.

Over the spring and summer, some states were issuing hundreds of thousands of new cards to households that had never before used a government EBT card.

When Congress created Pandemic-EBT in the first major coronavirus stimulus package in March, lawmakers did not foresee how long the current crisis would last. They authorized the program to go through the end of the government fiscal year, which ends Sept. 30.
But schools are still widely disrupted. Millions of kids are not going to get the meals they normally would at school, and childhood food insecurity rates are extremely high.


"We need an 'all of the above' strategy,” said Lauren Bauer, a fellow in economic studies at the Brookings Institution.

In July, Bauer and a team of researchers found that P-EBT benefits significantly reduced the number of children struggling to get access to enough food.

Using Census Bureau data, the researchers could see that the week after P-EBT benefits were issued in a particular state, the rate of children not getting enough to eat dropped by 30 percent. The effect started to wear off by the second week.

The program’s benefits, targeted at families with school-age children, were used quickly when they were doled out over the spring and summer, Bauer noted.

When a low-income family gets help from SNAP each month, those benefits often last a couple of weeks, but when researchers looked at P-EBT they noticed that families spent the money almost immediately.

“That suggests to me that this was a pretty important infusion of cash,” said Bauer.

With the program now set to expire in less than two weeks, anti-hunger advocates are trying to ramp up pressure on Congress to extend the program through the end of the school year. With stimulus talks seemingly dead for now, advocates are asking lawmakers to include an extension of P-EBT in any short term spending package.

“Congress needs to act,” said Crystal FitzSimons, director of school and out of school programs at the Food Research & Action Center. “We need to make sure the benefits are available for September, but it’s going to be a really long school year for families if their children are learning remotely."

Trump’s 'maximum pressure' peaks just before election


President Donald Trump is trying to max out on his “maximum pressure” campaign against Iran weeks before the election, setting up a messy diplomatic fight — and potential volatility in the Middle East — just as the president pitches himself as the region’s chief peacemaker.

The Trump administration on Saturday is expected to declare that international sanctions on Iran, including a conventional arms embargo, have been reimposed — an attempt to strike a final blow to the 2015 agreement limiting Tehran’s nuclear program, which Trump withdrew from two years ago after calling it “horrible” and “one-sided.”

The so-called snapback of the sanctions will put Trump’s deal-making skills, which his allies say deserve a Nobel Peace Prize, on the campaign stage: The president claims he can force Iran to the table for a better deal for the United States — “and Iran,” he says — after the election. But neither Iran nor the other countries that participated in the Iran nuclear deal agree that the U.S. has the right to snap back the sanctions, meaning it’s not clear whether the world will respect Trump’s declaration.

Trump in recent days has slapped fresh sanctions on Iranian intelligence and security entities over cyberattacks. He also has threatened to retaliate “1,000 times greater” against Iran after POLITICO reported on a plot to kill the U.S. ambassador to South Africa.

His latest anti-Iran moves are all part of an election-year strategy to sound like a peacemaker who is still talking tough. Despite trumpeting a series of peace agreements, including the Abraham Accords between Israel, the United Arab Emirates and Bahrain this week, many of Trump’s biggest foreign policy promises — a nuclear deal with North Korea, the toppling of the Maduro regime in Venezuela and a better deal with Iran — have gone largely unfulfilled just weeks from Election Day.

Saturday night’s intended implementation of the snapback sanctions is designed to further dismantle the Obama administration’s Iran agreement so Trump can start from scratch after the election. It’s also seen as an attempt to prevent a potential Biden administration from resuscitating the 2015 deal.

“The U.S. goal is to completely obliterate the nuclear agreement and leave it in shambles,” said Henry Rome, Iran analyst at the Eurasia Group. “What will the Iranians do? Do they look at this and say, 'snapback has happened, we are out of the deal and we’re ramping up further our nuclear developments'? Or do they say, 'let’s wait until the election and just see what happens'?”

Although the United States left the Iran deal —formally the Joint Comprehensive Plan of Action — in May 2018, the Trump administration claims it still has the right to reimpose the arms embargo and other restrictions, including sanctions related to Iran’s nuclear program, because it was an original participant in the agreement. But some of America’s closest allies question the legality of the move, including Germany, France and the United Kingdom, and wrote a letter in August disapproving of Trump’s decision. It’s expected many countries will ignore the U.S. sanctions.

“It’s a kind of an Alice in Wonderland situation where it depends on your definition of the term ‘participant,’ and you can take away whatever you’d like on that,” said Naysan Rafati, an Iran researcher for the International Crisis Group. “If you think the U.S. process is null and void because the U.S. lacks standing, then technically nothing happens on Saturday because there is no snapback that comes into place.”

The administration is “trying to put down a marker before the election,” said Jon Alterman, senior vice president at the Center for Strategic and International Studies, a think tank. But with just weeks before the election, it’s unlikely many countries will comply, he said.


“People don’t want to concede preemptively to the administration,” Alterman said. “So they’ll try to drag it out, and diplomats in general are good at that.”

Nonetheless, the U.S. says it expects U.N. member states to implement and uphold the original sanctions.

“Five years of JCPOA meetings have not moderated Iran’s tactics or choices at all,” U.S. Special Envoy for Iran Elliott Abrams said this week. “It’s time for peace-loving nations to recognize this reality and join us in imposing sanctions on Iran.”

Wendy Sherman, who led the U.S. negotiating team for the Iran deal in 2015, said the U.S. does not have the legal ability to move forward with the sanctions, because Trump himself said he backed out of the agreement.

“They will assert they have snap-backed the sanctions, but most countries will ignore the actions,” she said.

Trump’s former national security adviser, John Bolton, called the snapback decision “diplomatic CPR” for the Iran deal and a gift for Democratic nominee Joe Biden ahead of the 2020 election.

“By asserting that the U.S. has any rights in even one aspect of the deal, Trump opens the possibility for creative diplomats to find other rights,” Bolton wrote in a Bloomberg op-ed. “This would give legitimacy to any Biden administration effort to fully re-enter the JCPOA.”

In a Sunday op-ed responding to Trump’s call for the snapback sanctions, Biden wrote that is exactly what he intends to do.

“I will offer Tehran a credible path back to diplomacy,” Biden said. “If Iran returns to strict compliance with the nuclear deal, the United States would rejoin the agreement as a starting point for follow-on negotiations.”

Rich Goldberg, a former White House Iran analyst, slammed Biden’s op-ed as “a lot of bumper sticker language about Iran without really addressing their vision of whether the arms embargo should expire.”

“I think it’s because they know they’re in a box,” said Goldberg, now senior adviser at the Foundation for the Defense of Democracies, a national security think tank.

The political maneuverings come as Trump is eager to claim foreign policy victories ahead of the election. Many of his 2016 pledges remain unfulfilled. Among them: The wall along the border with Mexico remains incomplete. Trump’s senior adviser and son-in-law Jared Kushner presented a plan but did not make peace between the Israelis and the Palestinians. And troops remain in Afghanistan.

Critics say the administration’s “maximum pressure” campaign has turned up the temperature with Iran, but with little to show for it, as the regime won’t budge and has continued to increase its stockpile of enriched uranium, according to the latest report from the U.N.’s atomic watchdog.



“The main result of the Trump administration’s ‘maximum pressure’ campaign has been the fraying of U.S. alliances and the steady expansion of Iran’s enriched uranium stockpile,” wrote Kelsey Davenport, the director for nonproliferation policy at the Arms Control Association.

Trump is expected to discuss Iran on Tuesday in his virtual speech before the United Nations General Assembly. But the sanctions he’ll defend will be seen as more of his go-it-alone, “America First” strategy. Of the 15 U.N. Security Council members, only the Dominican Republic gave support for the U.S. decision to indefinitely extend an arms embargo on Iran.

“There’s no question that the actions taken by the Trump administration continue to isolate America, not isolate Iran,” Sherman said. “The U.S. is more isolated at the U.N. and more isolated in the world.”

The decision to ramp up pressure on Iran comes at an especially fraught moment in relations between Washington and Tehran. In January, Trump ordered the killing of Gen. Qassem Soleimani, the leader of the elite Quds force of the Islamic Revolutionary Guards Corps, which the U.S. has designated a terrorist organization. Since then, the two countries have exchanged repeated threats, including a warning by Trump to “shoot down and destroy any and all Iranian gunboats if they harass our ships at sea.”

POLITICO reported this week that Iran was weighing a plot to kill Lana Marks, the U.S. ambassador to South Africa, as part of its efforts to avenge Soleimani’s death. The U.S. learned of the general threat months ago, two officials said, but the information had become more specific in recent weeks.

In the days since, Trump, Secretary of State Mike Pompeo and National Security Adviser Robert O’Brien have, without confirming the plot, nonetheless warned Iran against any move that would hurt U.S. interests. “Any attack by Iran, in any form, against the United States will be met with an attack on Iran that will be 1,000 times greater in magnitude!” Trump tweeted.

On Friday, South Africa’s State Security Agency issued a statement saying that it was talking to the “relevant stakeholders.”


“At present, the information provided is not sufficient to sustain the allegation that there is credible threat against the United States ambassador to South Africa,” it said. “The South African officials have requested additional information from the United States government. Once the information is forthcoming, the facts will be reviewed and re-assessed.”

The United States and South Africa’s law enforcement and intelligence services have what former diplomats and former spies describe as a “cordial” relationship — language that usually indicates a level of coolness and distrust. It’s not at all clear that the United States would share details about what it knows with South Africa, given the desire to protect U.S. intelligence sources and methods.

South Africa and Iran, meanwhile, have a relatively warm relationship and have for years, another reason the U.S. might be wary of sharing information with South Africa. At the same time, Iran may not want to risk that warm relationship by ultimately going through with a plot against Marks.

Nahal Toosi contributed to this report.

How RBG's death will impact hot-button issues before the Supreme Court


The Supreme Court vacancy caused by Justice Ruth Bader Ginsburg’s death has the potential to shift the court even further to the right, all but guaranteeing a string of conservative rulings on abortion rights and ensuring the demise of Obamacare.

A move by President Donald Trump and Senate Majority Leader Mitch McConnell to quickly confirm a replacement for the liberal icon has the potential to cement a conservative majority on the court for a generation or more, even if Joe Biden wins the presidential election in November.

Adding a third Trump nominee to the high court could also go a long way to quieting Republicans’ increasing concern that Chief Justice John Roberts has proven to be an unreliable vote for conservatives and the Trump administration by siding with liberals in a handful of notable cases in recent years.

In June, Roberts joined liberals in a surprising, 5-4 decision rejecting Trump’s decision to end the Obama program protecting so-called Dreamers. While the chief justice still aligns with his Republican-appointed colleagues in most cases, he also voted with the court’s Democratic appointees last year in a 5-4 ruling that overturned the Trump administration’s move to add a citizenship question to the 2020 census.

The George W. Bush appointee has also voted with the court’s liberals in a series of emergency rulings rejecting challenges to state lockdown orders aimed at controlling the coronavirus pandemic.

“Roberts has not exactly been Trump’s friend,” said Curt Levey of the Committee for Justice, which supports conservative judicial appointees. “Roberts appears to be hostile to Trump.”

Ginsburg’s passing has already led liberal activists to resurface a controversial proposal that could mitigate the impact of any potential new Trump-appointed justice by adding at least two seats to the court, which briefly had 10 justices during the mid-1800s before settling in at the current maximum complement of nine justices.

The court’s size is set by law, not the Constitution, and can be changed by Congress at any time. However, doing so would likely require the Senate to abandon entirely its already-beleaguered filibuster rule.

Assuming a Biden win, such an expansion of the court could counteract any justice Trump may be able to add either in the coming weeks or in the lame-duck Senate session that follows the election. But one potentially crucial player in that scenario — Biden — is on record opposing any rejiggering of the court’s headcount.

“I would not get into court packing,” the Democratic nominee and former vice president said at a primary debate last October. “We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”

But Neal Katyal, an acting solicitor general under President Barack Obama, was less skeptical of such an approach.

"If they do this, the Democrats will be well within their rights to expand the Supreme Court," Katyal said on MSNBC. "They’ll be well within their rights to expand it to 13 or 15 or even 17 to nullify these games. ... Nobody should be playing games with the Supreme Court. If the Republicans do so, the Democrats will have weapons available to them."

The highest-profile case the justices are set to take up this fall is a broad, Trump administration-backed challenge to Obamacare, set to be argued one week after Election Day. With four liberals on the court, Roberts was seen as a potential swing justice to save the law, especially given his pivotal role in 2012 joining with the court’s Democratic appointees in a 5-4 decision that saved Obamacare’s individual mandate.

However, with Ginsburg gone, the landmark health care law seems imperiled. A tied vote at the high court would leave in place an appeals court decision striking down key portions of the statute.

If Biden wins, and enjoys Democratic control of both houses of Congress, he could seek to replace the Affordable Care Act with a new law intended to withstand legal challenge. Paradoxically, a rightward shift on the court might actually prompt passage of a more radical health care proposal, such as "Medicare For All," because those programs could be less vulnerable to legal challenge than the mandate-based approach underlying Obamacare.

A move by the court further in a conservative direction could also mean new restrictions on abortion rights, although it is not clear that replacing Ginsburg with a justice hostile to abortion rights would definitely lead to a decision overturning Roe v. Wade, the 1973 ruling guaranteeing women’s right to abortion.

Instead, such a shift would likely accelerate the general trend of the court permitting more government-imposed limits on the procedure. One case about efforts to limit access to abortion drugs is currently awaiting an emergency ruling from the court, while several others are in the pipeline. However, many analysts say that even an additional GOP-appointed justice is unlikely to produce a majority on the court to reverse Roe.

“It doesn’t bring you Roe v. Wade being overturned,” Levey said.


Whatever happens regarding a potential nominee, the court seems certain to be shorthanded in the coming weeks. That raises the prospect of tied, 4-4 rulings in a series of emergency applications the court is likely to receive related to the November election and adjustments related to the Covid-19 outbreak.

The court has often broken along ideological lines in election-related cases. If that pattern holds up, Ginsburg’s absence would have no effect since Republican appointees continue to hold their five-justice majority. But if Roberts were to waver in those cases and join the Democratic appointees, the court would be deadlocked.

In that situation, the rulings of lower appeals courts would stand. That could disadvantage Democrats and help Republicans, but the effect of Ginsburg’s death would likely be limited to circuits where GOP appointees outnumber Democratic ones on the appellate bench.

Legal observers are also bracing for a potential nightmare scenario: a shorthanded Supreme Court confronting potential political chaos if the November presidential election is extremely close or leads to protracted legal disputes.

It is even possible Republicans might succeed in confirming a nominee just before or just after the election, leading to rancorous recriminations from Democrats and dealing a death knell to Roberts’ oft-professed desire to have the court seen as above the political fray.

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