Power Up: Republicans say Supreme Court vote timing could energize base – or risk the Senate majority

But there’s some disagreement among Republicans over timing — and the best way to provide a jolt to President Trump’s faltering election campaign without endangering the GOP’s Senate majority further.  

Trump, for one, told reporters that he will announce his Supreme Court pick by the end of the week, and expressed a preference for holding a vote on the nominee before the election. “I’d much rather have a vote before the election because there’s a lot of work to be done, and I’d much rather have it,” Trump told reporters at the White House on Monday before leaving for events in Ohio. “And we have plenty of time to do it,” he said.

While some GOP lawmakers, strategists and Hill staffers agree it’s in the best interest of Majority Leader Mitch McConnell (R-Ky.) to hold the vote as quickly as possible, others want to schedule the vote for after Election Day to avoid forcing the hands of Senate Republicans in tight races. 

• “Why not just wait until after the election so that someone like [Sen. Susan Collins (R-Maine)] doesn’t look ineffective before the election?” a Republican Senate aide told Power Up. “You can still confirm the nominee in a lame duck just fine. But it’ll be tougher to justify a lame duck confirmation if we lose everything.” 
• Collins and Sen. Lisa Murkowski (R-Alaska) are so far the only two Republican senators who have come out publicly against moving quickly on a nomination.

Waiting until after the election also incentivizes conservatives in moderate suburbs where Biden has made inroads not to split the ticket, Republicans argued. “Will this drive turnout? In some parts of the country it will, but it could cost the seat in Maine or Arizona  — I don’t know how this thing helps them,” a GOP campaign aide working on Senate races told us. 

• The aide acknowledged the tight race may force McConnell’s hands: “But this needs to get done before the election because if Trump doesn’t have the votes after Nov. 3, and you swing and miss, it’ll be devastating … Pro-lifers have been waiting on this moment for 40 years.”

Others feel that the 43-day timeline is simply unrealistic, political considerations aside. “Regardless of what McConnell wants, it’s going to be determined by the process,” the Senate aide told Power Up. 

• “First Trump has to nominate someone, then the FBI has to conduct background checks, then the Senate has to go through all the nominee’s records and opinions again … then you have to hold the hearing, then there are weekends,” the GOP aide continued. “It’s possible — but it’s going to be tough to hold a vote before the election.”

McConnell appears committed to moving on an expedited timeline, and noted that Justice John Paul Stevens was approved by the Senate in just 19 days after he was formally nominated in 1975. 

• Optimistic: McConnell said on Monday that Congress “has more than sufficient time to process a nomination,” and added that Ginsburg was approved by the Senate in just 42 days after she was put forth by then President Bill Clinton in 1993.

• The difference?: “All of the nominations listed by McConnell, while they moved quickly, were also bipartisan. All of the nominees were approved nearly unanimously by the Senate — a feat that is nearly impossible in today’s deeply partisan U.S. Senate,” USA Today’s Christal Hayes reports.
• As we noted yesterday, on average it takes 69.6 days from nomination to a final Senate vote.

ALL ABOUT THAT BASE: Cleta Mitchell, a campaign finance lawyer and conservative activist, dismissed the hemming and hawing over the timetable and urged the party to “give Republicans a reason to vote for a Republican” by confirming a conservative Supreme Court justice to be seated in time for November’s consequential oral arguments. “The worst thing I think they could do is wait — politically it would be a mistake,” Mitchell said. 

• “There’s no reason to wait — there’s not a political reason, not a constitutional reason, nor a precedential reason,” said Mitchell, adding that the women on Trump’s SCOTUS short list “are all terrific.” 

Al Cardenas, a Florida-based Republican strategist and a former chairman of the American Conservatives Union, agreed that timing considerations should not be a deterrent for GOP lawmakers: “I think the win or accomplishment for conservatives is much more of a preoccupation than the abuse of process.”  

A Trump campaign official said the vacancy is an opportunity for the president to radically shift the focus on the campaign from his handling of the coronavirus to a Supreme Court hat trick. 

• “I don’t think timetable matters too much,” the source told Power Up. “It’s going to be a dogfight the next few weeks regardless and will define the election whether it happens before or after.”
• As for the GOP lawmakers hesitant to confirm Trump’s appointee before the election or during a lame duck period?: “What’s more lasting than appointing three justices in his first term? That is generation defining,” the official added. 

There’s also some risk to waiting for the lame duck, Cardenas argued: He agreed that it will be “very difficult to get this process accomplished in 40 days,” but doubts that if GOP senators lose their seats, they’ll be willing to vote for the president’s nominee in a lame duck session. 

If GOP senators keep their majority — but Biden is the incoming president — Cardenas believes that those who quietly “feel the same way as Murkowski and Collins but held back their fire back” will deny Trump the nominee since they have “nothing to lose in a lame duck session.” 

• “Regardless, this keeps [Trump] from continuing to be in a downward spiral — it has you all chasing something else,” Cardenas concluded.

Save the date: Mitchell underscored the need to seat a conservative justice on the bench in time to hear oral arguments on the future of the Affordable Care Act, which is scheduled for Nov. 10. 

• This timeline is extremely ambitious: SCOTUS oral arguments begin in October and end in December. Justices can and have jumped into their role right away, but usually wait before authoring their first opinion, Brent reports. But Supreme Court Justice Brett M. Kavanaugh was confirmed, sworn in, and heard his first case all within about a week. Kavanaugh wrote his first opinion concerning a noncontroversial case more than three months later.
• Hypothetically, if an election-related case arises, a new nominee could be ready by then. The electoral college members are required to meet on Dec. 14 this year. (In 2000, Bush v. Gore oral arguments were heard on Dec. 11; the historic election ruling came a day later, just before and the electoral college met as scheduled.)

RISING SIGNS: Trump said that he was considering five women for the vacancy, but the momentum is currently in favor of “Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals who met with Trump at the White House Monday, according to two people familiar with her visit,” according to our colleagues Seung Min Kim, Josh Dawsey and Bob Costa. 

• “She is a favorite of religious conservatives and is already battle-tested after going through a ferocious confirmation fight in 2017 for her seat on the appeals court. But Trump aides and allies continue to push other candidates with Judge Barbara Lagoa of the 11th Circuit considered the other top contender,” per Seung Min, Josh and Bob.
• However: “ … Some advisers to president are concerned that nominating Barrett will drive the focus of the last weeks of the presidential election to abortion, galvanizing the left and ultimately hurting the president’s prospects in November.” 
• “If we are talking about abortion and Roe vs. Wade, for the next six weeks, that’s not a good thing. We will lose,” one senior Republican told them.

A list of talking points was distributed by White House on Monday, our colleagues report, which provided outside allies with arguments intended to allay concerns about the potentially short confirmation period: 

• “The President and his team will be working closely with Leader McConnell and the Senate to ensure a timely and thorough process,” per the talking points. “There is ample time for the Senate to fulfill its constitutional obligation and take up this nomination.”

AS FOR DEMOCRATS: Senators are divided on how strongly to stage their opposition, the Daily Beast’s Sam Stein and Sam Brodey report. Some lawmakers “felt that a dramatic show of resistance with overt political threats would provide the pressure needed to at least slow down the march of Senate Republicans.” But more moderate members want to frame the fight around issues such as the future of the Affordable Care Act.

• A top former Democratic aide is urging the party to fight back on the floor. Adam Jentleson, who was then-Majority Leader Harry Reid’s deputy chief of staff, urges senators in a New York Times op-ed to use the procedural tactic of depriving Republicans unanimous consent to grind the chamber’s business to a halt.

In the meantime, the party continues to rake in cash. “From Alaska to Maine to North and South Carolina, Democratic strategists working on Senate campaigns described a spontaneous outpouring of donations the likes of which they had never seen, allowing Democrats the financial freedom to broaden the map of pickup opportunities, or press their financial advantage in top battlegrounds already saturated with advertising,” the New York Time’s Shane Goldmacher and Jeremy W. Peters report.

HOUSE, SENATE SQUABBLE AS SHUTDOWN LOOMS: “House Democrats unveiled a short-term spending bill that Senate Republicans immediately denounced, raising the prospect of a government shutdown weeks before the November election,” Erica Werner reports.

• Federal government funding runs out in eight days: Midnight on Sept. 30 to be exact. Key agencies, like the Pentagon and the Department of Health and Human Services would then begin to shut down certain operations.

Where things stand: The House plans to pass legislation as soon as today. “Republicans in the Senate could block the bill or seek to amend it and send it back to the House,” our colleagues write. The path forward is unclear.

• The holdup: “The House Democrats’ legislation would keep the government funded through Dec. 11. But it omits $30 billion sought by Trump and Senate Republicans to replenish a bailout program for farmers that Democrats oppose … At one point Friday, Pelosi and Mnuchin had appeared to reach a tentative deal to trade the farm bailout money for food assistance for schoolchildren affected by the pandemic. But that agreement never materialized.”

CDC FLIP FLOPS ON VIRUS GUIDANCE: “The Centers for Disease Control and Prevention on Monday removed language from its website that said the novel coronavirus spreads via airborne transmission, the latest example of the agency backtracking from its own guidance,” Ben Guarino, Chris Mooney and Tim Elfrink report.

What happened: “The agency said the guidance, which went up on Friday and largely went without notice until late Sunday, should not have been posted because it was an early draft,” our colleagues write. A CDC official said that the language overstated the agency’s stance on airborne spread. 

• This is the third time the CDC has posted something about the virus and then changed its stance: “In the spring, it revised information about contact transmission within days of publishing it. The White House coronavirus task force had directed the agency to change those guidelines in August, stating that asymptomatic people did not need to be tested. Last week the CDC changed its position again, encouraging anyone at risk to get tested.”

Some experts initially applauded the announcement: “Evidence that the virus floats in the air has mounted for months, with an increasingly loud chorus of aerosol biologists pointing to superspreading events in choirs, buses, bars and other poorly ventilated spaces,” our colleagues write.

OTHER CORONAVIRUS COVERAGE:

NIH staffer to retire after report reveals he called Fauci a “mask Nazi” on a conservative blog: “William B. Crews is, by day, a public affairs specialist for the National Institute of Allergy and Infectious Diseases. But for years he has been writing for RedState under the streiff pseudonym,” the Daily Beast’s Lachlan Markay first reported. 

• Crews has also “intimat[ed] government officials responsible for the pandemic response should be executed.”

N95 shortages continue to persist: “As the weather cools and the death toll climbs, America’s health-care workers fear that when winter comes, they still won’t have enough respirators. And the longer the shortage lasts, the longer N95s will remain largely out of reach for millions of others who could be protected by them — teachers and day-care workers, factory employees and flight attendants, restaurant servers and grocery store clerks,” Jessica Contrera reports from Baltimore, where nurses at Johns Hopkins Hospital are told to keep using their N95s until they are broken or visibly dirty.

HHS is shaking up staff after tumultuous hires: “The Trump administration removed the top two liaisons between the White House and the health department, leaving HHS Secretary Alex Azar’s chief of staff as the de facto personnel chief,” Politico’s Dan Diamond reports.

• One of those hires was involved in working on the pandemic. She was still in college as recently as this spring: “White House Liaison Emily Newman already has spent more than three months detailed to [Voice of America’s parent organization] as its chief of staff, which meant that her deputy Catherine Granito — an undergraduate at the University of Michigan as recently as this spring — had been in charge of the health department’s personnel while playing a role in shaping policies in the middle of a pandemic.”

WALL STREET’S TERRIBLE MONTH CONTINUES: “Stock markets fell sharply, then rebounded somewhat, as rattled investors braced for further roadblocks in fiscal stimulus talks, took in disappointing developments on the coronavirus front and weighed the implications of an explosive news report on global banks,” Hamza Shaban and Hannah Denham report.

September is traditionally a weak month. Shares have slid for three weeks now: “Every sector in the S&P 500 fell Monday, and nearly every company in the Dow lost ground,” our colleagues write.

MUELLER PROSECUTOR SAYS PROBE SHOULD HAVE ‘DONE MORE’: “A former prosecutor on special counsel Robert S. Mueller III’s team writes in a new book that the group failed to fully investigate Trump’s financial ties and should have stated explicitly that they believed he obstructed justice, claiming that their efforts were limited by the ever-present threat of Trump disbanding their office and by their own reluctance to be aggressive,” Matt Zapotosky and Spencer S. Hsu report.

Andrew Weissmann, the former prosecutor, says Mueller pulled too many punches: “He lays particular blame on Mueller’s top deputy, Aaron Zebley, for stopping investigators from taking a broad look at Trump’s finances and writes that he now wonders whether investigators had “given it our all,” knowing they left many important questions unanswered,” our colleagues write.

• Mueller’s decision not to subpoena Trump remains a major concern: “What are we saying to future presidents, and to future investigators, who will have our decision thrown in their face?” Weissmann says he told Mueller.
• Weissmann believes Trump could face charges after leaving office: But he’s noncommittal on whether such action should be taken.

A top official in the House’s impeachment inquiry said Mueller’s decisions affected their outcome too: 

Daniel Goldman, Democrats’ lead impeachment hearing lawyer:

Zebley’s concerns were due to Trump’s constant attacks on the investigation, Weissmann claims: “This sword of Damocles affected our investigative decisions, leading us at certain times to act less forcefully and more defensively than we might have,” he writes. 

• Weissmann compares Zebley to unkindly to “timorous” Civil War Gen. George B. McClellan, whom President Lincoln famously relieved of his command in part over concerns he was not sufficiently aggressive.

Attorney General William P. Barr is also taken to task: “Weissmann condemns Barr, White House attorneys and others for enabling a ‘lawless’ president,” our colleagues write. Barr’s summary of the Mueller team’s report so infuriated Weissmann, he says, that reading the four-page letter prompted him to write the book. 

WHAT ELSE YOU NEED TO KNOW:

The Justice Department is targeting Portland, New York and Seattle over protests: The DOJ labeled the cities as places ‘that have permitted violence and destruction of property,’ targeting them for possible cuts in federal funding,” Devlin Barrett reports.

Omaha is reeling after suspect in killing of protester is found dead: “The death of a White bar owner accused of killing a Black Lives Matter protester in Nebraska this spring has upended the controversial case and the local racial justice movement that it ignited, further rattling a community that has been grappling with its divisions,” Annie Gowen reports.

A Russian billionaire wants to buy controversial statues that were taken down: “If the monuments are going to be thrown out, chucked away, we’re happy to buy them and dismantle them and put them together back in Russia for future generations to enjoy and to appreciate,” Rena Lavery, Art Russe’s director told Rebecca Nelson for a Post story. 

• Art Russe, a London-based foundation usually focused on Russian and Soviet cultural influences, is owned by Andrey Filatov, a Russian billionaire, chess enthusiast and art collector.