News : As trust in SCOTUS drops, Alito spars with Kagan

Thursday, September 29, 2022

As trust in SCOTUS drops, Alito spars with Kagan

Sep 29, 2022

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By Ryan Lizza and Eugene Daniels

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With help from Eli Okun and Garrett Ross

Supreme Court Justices Samuel Alito, left, and Elena Kagan, right, testify before the House Appropriations Committee on Capitol Hill.

In an unusual and rare statement, Justice Samuel Alito, author of the Dobbs decision that has driven down the Court's approval, directly responded to Elena Kagan's critiques (without naming her). | Susan Walsh/AP Photo

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DRIVING THE DAY

OVERNIGHT — WaPo: "Harris visits DMZ after North Korean missile tests"

HURRICANE IAN LATEST — AP: "People trapped, 2M without power after Ian swamps SW Florida": "One of the strongest hurricanes to ever hit the United States barreled across the Florida peninsula overnight Wednesday, threatening catastrophic flooding inland, the National Hurricane Center warned."

ROVE'S HOUSE PREDICTION — KARL ROVE in the WSJ: "The red wave will likely generate a smaller midterm swing than the average, which since 1934 has been 28 House seats. Republicans are likely to gain closer to 20 than 25. But that's partly because the GOP got a head start in 2020 by picking up 14 House seats. A net gain of 20 seats this fall would give Republicans 233 — the GOP had 230 in 1995 when Newt Gingrich was elected speaker." (He'll offer a Senate prediction next week.)

TRUST IN JUDICIAL BRANCH PLUMMETS — A new Gallup poll set for release today shows a drop in approval of and confidence in the Supreme Court. Gallup previewed some of the key findings for Playbook:

The topline: "Less than half of Americans say they have 'a great deal' or 'a fair amount' of trust in the judicial branch of the federal government, representing a 20-percentage-point drop from two years ago, including seven points since last year."
The historic trend: "This is the lowest confidence rating for the judicial branch in Gallup's trend by six points. The judicial branch's current tarnished image contrasts with trust levels exceeding two-thirds in most years in Gallup's trend since 1972."
What's driving it: "The drop in trust … is driven largely by a sharp decline among Democrats, whose level of trust is half of what it was one year ago. The new poll marks the first time that less than half of Democrats and independents express faith in the judicial branch."
Two more findings: (1) "The new Gallup poll also finds a record-tying-low of Americans saying they approve of the job the Supreme Court is doing." (2) "Meanwhile, a record high percentage of Americans say the Supreme Court is 'too conservative.'"

The Supreme Court has long been one of the few major institutions in America to survive with relatively high levels of bipartisan approval, but voters' views of SCOTUS now more closely track the polarized views of Congress, the president and the media.

The justices themselves are well-aware of their diminished standing. The Wall Street Journal's Jess Bravin documents how Justice ELENA KAGAN and Chief Justice JOHN ROBERTS have sparred over the legitimacy issue during public appearances this summer.

Key quotes from Kagan at recent events in Rhode Island and Montana, respectively:

"The very worst moments [in the court's history] have been times when judges have even essentially reflected one party's or one ideology's set of views in their legal decisions. The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process."
"If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy."

Roberts' response earlier this month in Colorado:

"Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court."

Kagan and Roberts declined to comment to the Journal, but in an unusual and rare statement, Justice SAMUEL ALITO, author of the Dobbs decision that has driven down the Court's approval, directly responded to Kagan's critiques (without naming her), telling the paper:

"It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line."

We cannot recall the last time justices sparred with each other in the press in this manner.

Meanwhile, in a victory for much-needed transparency, a spokesperson said on Wednesday that the court would continue its pandemic-instituted measure of offering live audio broadcasts of arguments when the new term begins Oct. 3. AP's Jessica Gresko notes, "Monday will be the first time in more than two and a half years that the justices will hear arguments with members of the public present."

A message from Amazon:

Andre wasn't sure what his future held after dropping out of high school to support his family. But then he started at an Amazon fulfillment center and enrolled in the free associate-to-technician program to learn new skills.

Now, he works as an IT technician for Amazon. "It was probably one of the biggest deals that happened in my life, knowing that Amazon would put even more effort into developing me," he said.

Good Thursday morning. Thanks for reading Playbook. Drop us a line with your predictions for the Supreme Court's new term: Rachael Bade, Eugene Daniels, Ryan Lizza.

TALKER — John Harris' latest "Altitude" column: "The Reporters Who Proved That Journalism Is More Powerful Than Trump"

As it made landfall in Florida on Wednesday, Hurricane Ian forced roads to close, rained in torrents, flooded vast coastal areas, spawned tornadoes and forced locals who hadn't already escaped harm's way to bunker down.

One thing the hurricane didn't stop? Negative campaign ads.

Florida Gov. RON DeSANTIS, Sen. MARCO RUBIO and Rep. VAL DEMINGS, all of whom are in competitive statewide races this year, are "continuing to run ads during the storm," reports Gary Fineout . "The hurricane's arrival comes at a pivotal time in the election cycle, less than six weeks ahead of the 2022 midterms. Most election officials in Florida are supposed to start sending out mail-in ballots in the next week."

"The campaign has been paused in some ways, but it depends a lot on where someone lives in the state," Gary told Playbook on Wednesday night. "Some campaigns began to take down their television ads in markets that were directly impacted by the storm, but have left them up in places that have gotten some impacts but have not experienced the full fury."

One longtime Florida pol who's not a fan of continuing to politic during the storm? Former Republican Gov. JEB BUSH. "I think campaigns should shift to helping what will be hundreds of thousands of Floridians that will need a lot of assistance," Bush told POLITICO.

BIG PICTURE

THINKER — "What Can History Tell Us About the Roe Effect on the Midterms?" by NYT's Nate Cohn: "Finding analogies for big successes by the party out of power."

BATTLE FOR THE SENATE

McCONNELL'S VIEW — Senate Minority Leader MITCH McCONNELL is expressing more optimism about the GOP's chances of reclaiming the majority. "We are in a bunch of close races," the Kentucky Republican told reporters on Wednesday. "It's going to be really, really close either way, in my view." It's something of a turn for McConnell, who "has been careful about overstating any GOP gains in the chamber," AP's Farnoush Amiri writes, and has even gone so far to criticize his party's candidate quality.

THE GOP'S CRIME BLITZ — As Republicans across the country turn to crime and public safety issues to level the playing field against their Democratic opponents, MEHMET OZ has been no different in Pennsylvania. "And now, Republicans are pushing a not-so-subtle narrative that Democratic nominee JOHN FETTERMAN supports — or maybe even has ties to — a gang. The Crips, to be exact," The Daily Beast's Ursula Perano and Jake Lahut write . "The Oz campaign did not respond to a request for comment on whether the television doctor earnestly believes Fetterman supports the Crips or other gangs, or whether he believes Fetterman has ties to the Crips."

HEADS UP — "U.S. Chamber of Commerce endorses Republican Mehmet Oz in Senate race," by Reuters' Andrea Shalal

IN NEVADA — Republican Senate nominee ADAM LAXALT used a Wednesday campaign event to slam Democratic Sen. CATHERINE CORTEZ MASTO for not supporting law enforcement back in 2020. But after the event, speaking to NBC's Natasha Korecki , Laxalt couldn't get behind the FBI. "The FBI is far too political right now, and we need to do something to take the polarization out of that," he said. "We just can't afford to have our top law enforcement agency that politicized."

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BATTLE FOR THE HOUSE

IN OHIO — Last week, Ohio GOP congressional candidate J.R. MAJEWSKI said that while in the armed forces, he was punished and demoted for getting in a "brawl" in an Air Force dorm. "Military records obtained since then by The Associated Press, however, offer a different account of the circumstances, which military legal experts say would have played a significant role in the decision to bar him from reenlisting," AP's Brian Slodysko and James Laporta report.

"They indicate Majewski's punishment and demotion were the result of him being stopped for driving drunk on a U.S. air base in Japan in September 2001. The documents, which were provided to the AP and independently authenticated, present yet another instance where the recorded history of Majewski's service diverges from what he has told voters as he campaigns while using his veteran status as a leading credential."

BATTLE FOR THE STATES

IN PENNSYLVANIA — "As campaign struggles, Doug Mastriano plans '40 days of fasting and prayer,'" by the Philly Inquirer's William Bender and Jonathan Tamari

IN ARIZONA — "Arizona attorney general debate gets heated as candidates discuss abortion, elections and experience," by the Arizona Republic's Ray Stern

IN MICHIGAN — "Culture wars take center stage in Tudor Dixon's education proposals," by MLive's Simon Schuster

IN COLORADO — "Three revealing moments from Jared Polis, Heidi Ganahl's first debate of the Colorado governor's race," by the Denver Post's Nick Coltrain

TRACKING THE MOVEMENT — Sabato's Crystal Ball moved the Michigan and Pennsylvania gubernatorial races from "Leans" to "Likely Democratic."

HOT POLLS

— Georgia: Democratic Sen. RAPHAEL WARNOCK leads Republican HERSCHEL WALKER, 46% to 41%, while Republican Gov. BRIAN KEMP leads STACEY ABRAMS, 50% to 43%, per a new Fox News poll.

— Pennsylvania: Fetterman leads Oz, 45% to 41%, and Democrat JOSH SHAPIRO leads DOUG MASTRIANO, 51% to 40%, per a new Fox News poll.

— Arizona: Democratic Sen. MARK KELLY has a 10-point lead over BLAKE MASTERS , 51% to 41%, among registered voters, per a new Marist poll. Among those who say they will definitely vote, the lead is 50% to 45%. And in the gubernatorial race, Republican KARI LAKE leads KATIE HOBBS, 46% to 45%, among all voters — though her lead is larger among those who say they'll definitely vote: 49% to 46%.

BIDEN'S THURSDAY:

8:30 a.m.: The president will receive the President's Daily Brief.

11:35 a.m.: Biden will depart the White House en route to FEMA HQ, where he will receive a briefing on Hurricane Ian and the federal response.

1:15 p.m.: Biden will return to the White House.

2:40 p.m.: Biden will depart en route to the State Department.

3 p.m.: Biden will host the U.S.-Pacific Island Country Summit.

5:20 p.m.: Biden will return to the White House, where he will welcome Pacific Island leaders and host a dinner at 6:40 p.m.

VP KAMALA HARRIS' THURSDAY: The VP is in South Korea, where last night and this morning she participated in a bilateral meeting with President YOON SUK-YEOL, met with women leaders from South Korea and visited the DMZ. She is now on a flight back to D.C.

THE SENATE is in.

THE HOUSE will meet at 10 a.m.

HAPPENING NOW - MILKEN INSTITUTE ASIA SUMMIT : Go inside the 9th annual Milken Institute Asia Summit, taking place from September 28-30, with a special edition of POLITICO's Global Insider newsletter, featuring exclusive coverage and insights from this important gathering. Stay up to speed with daily updates from the summit, which brings together more than 1,200 of the world's most influential leaders from business, government, finance, technology, and academia. Don't miss out, subscribe today.

PHOTO OF THE DAY

U.S. Vice President Kamala Harris, left, and South Korea's President Yoon Suk Yeol hold a bilateral meeting in Seoul.

U.S. Vice President Kamala Harris, left, and South Korea's President Yoon Suk Yeol hold a bilateral meeting in Seoul on Thursday, Sept. 29. | Leah Millis/Pool Photo via AP

PLAYBOOK READS

MORE POLITICS

LOOKING AHEAD — The campaign to lead the House GOP's campaign arm for the 2024 cycle is heating up before the midterms even end. Reps. RICHARD HUDSON (R-N.C.) and DARIN LaHOOD (R-Ill.) have emerged as the two top contenders. "House Republicans hope and expect to be on strong footing in swing states come 2024 after a midterm cycle that has them eyeing as many as 30 pickups. But defending a majority also means the threat of losing more seats — and serving as campaign chief during a presidential election, when GOP donors face more competition for their dollars, will make the job harder," Olivia Beavers reports this morning.

DON'T CALL IT A COMEBACK — Former New York Gov. ANDREW CUOMO is telegraphing his re-entry to the political arena, announcing that he will launch a podcast, a PAC and a new initiative focused on gun safety. "In an eight-minute video, Mr. Cuomo, a once-powerful Democrat who resigned over sexual harassment allegations last year, said that he had gained a 'new perspective on politics' during his time on the sidelines and framed his efforts as an attempt to help bridge the political discourse in a divided nation," NYT's Luis Ferré-Sadurní writes. … Watch the video

THE WHITE HOUSE

OK, THEN — After Biden called out and searched for the late Rep. JACKIE WALORSKI (R-Ind.) at a news conference on Wednesday, the White House struggled to respond to the slip-up. Asked by a reporter why the president appeared to think that Walorski was "living and in the room," press secretary KARINE JEAN-PIERRE responded: "I don't find that confusing. I think many people can speak to sometimes, when you have someone top of mind, they are top of mind. Exactly that." (h/t CNN's @mj_lee)

As our own Chris Cadelago noted, "Biden's press team repeatedly made commitments — on their own, and from their earliest days of taking office — that they would always tell it like it is and not obfuscate or gaslight on issues large or small."

MAR-A-LAGO FALLOUT

WHOOPSIE, DEARIE — NYT's Charlie Savage writes in a news analysis: "'Giant Backfire': Trump's Demand for Special Master Is Looking Like a Mistake"

CONGRESS

NEW BADE-DEMIRJIAN SCOOP — The LA Times writes about another fascinating nugget from "Unchecked: The Untold Story Behind Congress's Botched Impeachments of Donald Trump," by our own Rachael Bade and WaPo's Karoun Demirjian.

The new reporting concerns the fraught relationship between two California Democrats, Speaker NANCY PELOSI and her protege Rep. ADAM SCHIFF, who is looking to run for a leadership post if Pelosi retires next year.

LAT : "As momentum shifted toward impeaching then-President [DONALD] TRUMP for withholding aid to Ukraine in 2019, [Schiff] counseled [Pelosi] and the seven moderate freshman Democrats whose Washington Post op-ed supporting impeachment in essence forced the hand of House leaders, according to a new book.

"Schiff's role as a longtime ally to Pelosi was well known. But that his advice also led a group of moderate freshmen with military and intelligence community backgrounds to write an op-ed that changed public sentiment about impeaching Trump has not been previously reported. … 'Schiff, by that point, was the well-established boogeyman of the right, and any publicized link to him could have jeopardized their reelections. But the national security freshmen trusted Schiff. And more importantly, they believed he would know what Pelosi was planning,' according to the book."

EXPLAINER — "Why the defeat of Manchin's energy bill could be a loss for the climate," by WaPo's Shannon Osaka

JAN. 6 AND ITS AFTERMATH

ONLY IN THIS TOWN — Our colleagues Kyle Cheney and Josh Gerstein write: "A defense lobbyist, a fiancé of a Daily Caller employee, and a patent office worker entered a room, and it wasn't even the set-up to a cringy political joke. Jury selection for the most high-profile criminal trial to emerge from the Jan. 6 attack on the Capitol began on Wednesday morning."

WHO'S TALKING — VIRGINIA THOMAS , the wife of Supreme Court Justice CLARENCE THOMAS, will testify before the Jan. 6 committee this week, committee Chair BENNIE THOMPSON (D-Miss.) told CNN. He also said the panel is still working to reschedule its postponed hearing, saying that it likely won't happen next week. More from CNN's Annie Grayer, Sara Murray, Kristin Wilson and Paul LeBlanc

THE PHONE SAGA GOES ON — "IG identifies 'concerns' with Defense Department phone messaging apps in probe of missing January 6 texts," by CNN's Tierney Sneed

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JUDICIARY SQUARE

IT'S 2024 SOMEWHERE — A pair of voting cases about to reach the Supreme Court — one out of North Carolina, and one from Alabama — could be on track to reshape the 2024 election, Zach Montellaro writes. "Practically, the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots."

WAR IN UKRAINE

RUSSIAN REVOLT — "'Putin Is a Fool': Intercepted Calls Reveal Russian Army in Disarray," by NYT's Yousur Al-Hlou, Masha Froliak and Evan Hill

— "Russia's Mobilization, Plunging Oil Prices Weaken Putin's Economic Hand," by WSJ's Georgi Kantchev, Yuliya Chernova and Joe Wallace

THE VIEW FROM MOSCOW — "Russia poised to annex occupied Ukraine after sham vote," by AP's Jon Gambrell and Adam Schreck

THE VIEW FROM WASHINGTON — "Pentagon will double powerful HIMARS artillery for Ukraine," by WaPo's Alex Horton

THE VIEW FROM ELSEWHERE — "Calls grow for China and India to talk sense into Putin," by Bryan Bender

BEYOND THE BELTWAY

THE MIGRANT FLIGHTS — "Massachusetts lawmakers ask Buttigieg to investigate DeSantis migrant flights," by Lisa Kashinsky, Oriana Pawlyk and Alex Daugherty

HEADS UP — "Newsom reverses course and signs farmworker bill backed by Biden," by Alexander Nieves

AMERICA AND THE WORLD

HOW IT'S LANDING — New Italian PM GIORGIA MELONI is getting love from American conservatives, a pairing that carries no shortage of risks. "But if GOP lawmakers are nervous about allying with a future prime minister who has said that immigration 'deprives nations and people of their identity" — while opposing new mosques in Italy — they're not showing it," Andrew Desiderio reports this morning.

WHODUNNIT — "Sabotaged Pipelines and a Mystery: Who Did It? (Was It Russia?)" by NYT's Katrin Bennhold and David Sanger

— "European security officials observed Russian Navy ships in vicinity of Nord Stream pipeline leaks," by CNN's Katie Bo Lillis, Natasha Bertrand and Kylie Atwood

JUST RELEASED — New NATO statement on the leaks: "We support the investigations underway to determine the origin of the damage. ... Any deliberate attack against Allies' critical infrastructure would be met with a united and determined response."

FOR YOUR RADAR — "U.S. scrambles F-15 jet to shoot down Iranian drone that appeared to threaten U.S. forces in Iraq," by CNN's Barbara Starr and Ellie Kaufman

SUBSCRIBE TO POWER SWITCH: The energy landscape is profoundly transforming. Power Switch is a daily newsletter that unlocks the most important stories driving the energy sector and the political forces shaping critical decisions about your energy future, from production to storage, distribution to consumption. Don't miss out on Power Switch, your guide to the politics of energy transformation in America and around the world. SUBSCRIBE TODAY.

PLAYBOOKERS

Katie Couric revealed that she has been receiving treatment for breast cancer.

Marjorie Taylor Greene is going through a divorce.

MacKenzie Scott is filing for divorce from her second husband, Dan Jewett.

IN MEMORIAM — "Bill Plante, legendary CBS News White House correspondent, has died at 84," CBS: "William 'Bill' Plante, one of the longest-serving White House broadcast journalists in history, died of respiratory failure on Wednesday, according to his family. The award-winning CBS correspondent was 84 years old and lived in Washington, D.C. Plante retired from CBS News as senior White House correspondent in 2016 after 52 years with the news division. He served four tours in Vietnam — with award-winning reporting on the fall of Saigon and Cambodia — covered the civil rights movement, all the presidential elections from 1968 to 2016, and was the anchor of the 'CBS Sunday Night News' from 1988 to 1995."

— "Aram Bakshian, Jr. passed away Wednesday, September 14, 2022 of pancreatic cancer. He was born March 11, 1944 in Washington, DC, the oldest child of Ruth Yeatman Bakshian and Aram Bakshian, and lived all his life in the Nation's Capital. Aram was an accomplished and prolific writer. He served as an aide and speechwriter to three U.S. presidents and was editor-in-chief of American Speaker, the award-winning guide to public speaking, from its founding in 1992 until his retirement 17 years later. Most recently he was a contributing editor to The National Interest and a regular columnist for The American Conservative." Read the full obituary

OUT AND ABOUT — SPOTTED at the American Investment Council and National Association of Investment Companies' welcome reception at the Congressional Black Caucus Foundation's Annual Legislative Caucus at the Walter E. Washington Convention Center: Reps. Gregory Meeks (D-N.Y.), Terri Sewell (D-Ala.) and Brenda Lawrence (D-Mich.), Reggie Love, Troy Vincent, Drew Maloney, Bob Greene, Emily Schillinger, Emily Spain, Travers Garvin, Pamela Alexander, Stacey Dion, Brad Bailey, Carmen Ortiz-McGhee, Paul Dumars, Reggie Love, Amber Unwala, Cameron Trimble and Malcolm Sherrod.

— SPOTTED at a party on Wednesday night hosted by Adrienne Arsht at her Chevy Chase, Md., house celebrating Nina Totenberg's "Dinners with Ruth: A Memoir on the Power of Friendships" ($19.59): Justice Sonia Sotomayor, Sens. Mazie Hirono (D-Hawaii), Amy Klobuchar (D-Minn.) and Patrick Leahy (D-Vt.), Sharon Rockefeller, Brendan Sullivan, Bob Barnett, Ted Olson, Diane Rehm, Tony Fauci, Andrea Mitchell, Jennifer Griffin, Phil Rucker and Vivian Salama.

MEDIA MOVE — Tara Copp is joining the AP as a reporter covering military affairs. She currently is senior Pentagon correspondent at DefenseOne. … Mini Racker will be campaigns staff writer at Time. She most recently has been a staff writer at National Journal. … Wister Hitt is now a publicist for WSJ. He previously was a content editor for the NY Post and an executive assistant at the National Review.

FIRST IN PLAYBOOK — Fernando "Nando" Gomez Jr. is now VP for strategic initiatives at the American Council of Engineering Companies. He previously was senior director for government relations at the American Fuel and Petrochemical Manufacturers.

TRANSITIONS — Matt Duss is joining the Carnegie Endowment for International Peace as a visiting scholar in the American Statecraft Program. He most recently was foreign policy adviser for Sen. Bernie Sanders (I-Vt.). … Stephanie Sykes is now senior adviser for NTIA at the Commerce Department. She most recently was director of intergovernmental affairs for infrastructure implementation at the White House. … Emily Loeb is returning to Jenner & Block to chair the congressional investigations practice and as a co-chair of the government controversies and public policy litigation practice. She previously was part of the "Day One" leadership team and is former associate deputy AG. …

… Nick Vaughan is joining Bullpen Strategy Group to lead the firm's London office. most recently served as Head of Operations on British PM Liz Truss's leadership campaign. … David Marten is joining Elevate Government Affairs as an executive VP. He previously was legislative director for Senate Commerce Chair Patty Murrray. … Tom Lynch is now head of government affairs at Fertilizer Institute. He previously was VP for congressional affairs for the American Short Line and Regional Railroads Association and general counsel for the National Tank Truck Carriers.

HAPPY BIRTHDAY: NASA Administrator Bill Nelson (8-0!) … U.S. Ambassador to the Holy See Joe Donnelly … Larry Burton of Sen. Dan Sullivan's (R-Alaska) office … David Nather … Salena Zito of the Washington Examiner and N.Y. Post … Anton Vuljaj … Liz Sidoti of Abernathy MacGregor … CBS' Tory Coughlan … Stephen Parker … POLITICO's Ryan Hutchins, Marissa Martinez and Jade-Snow Joachim … E&E News' Lucas Morgan … Insider's Oma Seddiq … Riley Swinehart … Finn Partners' Scott Widmeyer and Jessica Ross … NBC's Emma Barnett … Ryann DuRant of Sen. Tommy Tuberville's (R-Ala.) office … Edelman's Lisa Osborne Ross … Shawn Pasternak of S-3 Group … Brian Shankman … Matthew Cornelius … Kevin Pérez-Allen of United States of Care (4-0) … White House's Elvir Klempic … Sony's Cameron Normand … Paul Bock … NDRC's Kelly Ward Burton … Aviva Rosenthal of the Smithsonian Institution (5-0) … Sandra Sobieraj Westfall … Precision Strategies' Laura Gaffey ... Ashley Bryant-Bailey … former Rep. Max Sandlin (D-Texas) (7-0) … Melissa DeRosa … Will Saletan … Robbie Kaplan … Marisa Salemme of Rep. Ann Kuster's (D-N.H.) office

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