“We’re Watching Them Shoot Themselves in the Foot”: Trump’s COVID Circus Is Supercharging Democrats’ SCOTUS Strategy

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Senate Democrats have been preparing for this moment since May. That month the Supreme Court announced that the late Justice Ruth Bader Ginsburg had undergone treatment at Johns Hopkins for a gallbladder condition. She recovered, but the scare threw into focus how vulnerable Democrats would be if Donald Trump and Mitch McConnell aimed to fast-track a conservative SCOTUS nominee through the confirmation process. At the time Chuck Schumer’s office took inventory of the tactics Democrats might use to stop them. There wasn’t much. So he settled on the most viable strategy: emphasize the danger of said nominee potentially repealing the Affordable Care Act.

The choice of Judge Amy Coney Barrett to fill Ginsburg’s seat, then, was convenient: Barrett is on record criticizing the decision to uphold Obamacare. Plus, a pending Texas case could put the law on the chopping block right after the election—in the middle of a pandemic. Senate leadership and Democrats on the Senate Judiciary Committee huddled to confirm their messaging. Then Schumer and Nancy Pelosi met with Joe Biden to coordinate.

Republicans, meanwhile, were thrilled; any day people weren’t talking about the coronavirus pandemic was a good day for Trump and their downballot candidates, the thinking went. Then the White House became a COVID-19 petri dish thanks to a Rose Garden event to celebrate Barrett herself. Democrats couldn’t have scripted it better. “[Republicans] have literally…facilitated making the election about the issues we want to talk about and that Democrats are gonna win on,” a senior Democratic Senate aide told me. “We have wanted to make this election about health care, and we’ve wanted to make this election about Trump’s handling of the COVID crisis. And they are throwing those issues into more intense focus than we could have dreamed.” 

Widely circulated videos and photos of mask-less Republicans hugging, close-talking, and shaking hands in the Rose Garden have been a gift to Democrats. For months they’ve criticized the president for his reckless attitude toward the virus and slammed the GOP as complicit in allowing the pandemic to spiral out of control. “You have all seen their COVID protocol behavior,” said Democratic senator Sheldon Whitehouse, who sits on the Senate Judiciary Committee, on a call with reporters earlier this week, “and it visibly sucks to anyone who is looking.” 

Democrats hope to use the event to demonstrate the poor judgment of Trump, Republicans, and even Barrett. On September 26, the day of the ceremony, Barrett and her family had dinner in a private room at La Chaumière in Georgetown, the proprietor confirmed to me. The restaurant had not heard from a contract tracer or the White House as of Wednesday. “None of our staff has shown any symptoms of illness. All employees have their temperature checked upon entering the building and no fever was reported,” the proprietor said. But Barrett’s dinner might have flouted D.C. mayor Muriel Bowser’s quarantine rules for people traveling from high-risk states like Indiana, where Barrett lives.

Meanwhile, the tally of Republicans diagnosed with COVID-19 seems to grow by the hour. In addition to President Trump and first lady Melania Trump, Republican senators Ron Johnson, Thom Tillis, and Mike Lee; senior advisers to the president Hope Hicks and Stephen Miller; press secretary Kayleigh McEnany; Trump campaign manager Bill Stepien; former White House adviser Kellyanne Conway; and outside adviser Chris Christie represent just a sampling of those who’ve tested positive for the coronavirus since the Rose Garden event. Dozens of others are quarantining.

The diagnoses of three Republican senators threw McConnell’s aggressive schedule to confirm Barrett into question. Tillis and Lee sit on the Senate Judiciary Committee. Two other members of the committee, Ben Sasse and Ted Cruz, have tested negative for COVID-19 but are quarantining, per the advice of doctors. (Sasse has said he plans to take further tests.) Given the lack of contact tracing and mandated testing for members of Congress, the extent to which the broader Republican caucus has been exposed is an open question. In contrast with their Democratic colleagues, Republican lawmakers are regularly seen around the Capitol without masks. While Democrats shifted their weekly lunches to a virtual format early on, Republicans have continued to meet in person. “The super-spreader event appears to have started all of this, but then the people at that event went to the Senate,” Minnesota senator Amy Klobuchar said on the call with reporters, noting that Republicans participated in Judiciary Committee hearings last week. “That is where we are right now. It wasn’t just what happened on that day—it is what happened the week after.” 

Democrats have called to delay the Barrett hearings and insisted that McConnell’s decision to close the Senate for two weeks proves that forging ahead is risky. “If it is not safe enough for the whole Senate and Mitch McConnell, it shouldn’t be safe enough for the members of the Judiciary Committee and our staff,” Klobuchar, who on Monday introduced a resolution with Schumer to mandate mask wearing and establish contract tracing and testing protocols on the Hill, said on the call. But Republicans have signaled they won’t be deterred. Judiciary chairman Lindsey Graham has dismissed Democrats’ urgings that senators should question Barrett in person, tweeting, “Any Senator who wants to participate virtually will be allowed to do so.” 

Despite speculation from #Resistance Twitter that the COVID-19 outbreak among Republicans presents an opportunity to block Barrett, there’s still not much they can do. “The procedural options continue to be limited,” Christopher Kang, the chief counsel of Demand Justice, told me. “I do think that Democrats will do everything they can to take advantage of them, but I also think that McConnell is pushing ahead on such an unreasonable schedule in part so that he can account for the potential parliamentary tactics that Democrats could do to sort of throw sand in the gears.” 

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