Good morning and welcome to On Politics, a daily political analysis of the 2020 elections based on reporting by New York Times journalists.
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Where things stand
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Joe Biden has denied a former Senate aide’s allegation of sexual assault, releasing a 1,000-word statement on Medium and appearing on MSNBC’s “Morning Joe” on Friday. Biden called for the release of the official complaint that his accuser, Tara Reade, has said she made with the Senate at the time. (Reade told The Associated Press on Friday that she did not directly mention sexual assault or harassment in the complaint, a copy of which has not surfaced.) Processing Biden’s first public statements on the allegation, both Democrats and Republicans battled over the weekend to control the narrative. Biden has said that a copy of Reade’s complaint could be housed only in the National Archives, which keeps records of such official documents. But Republicans are pushing for the release of Biden’s personal Senate papers, which are housed at the University of Delaware and were not intended to be opened until after Biden’s political career ended. Biden told MSNBC those files would offer unfair ammunition to Republican strategists, who could deploy them “out of context” as “fodder in a campaign.”
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Some of Biden’s opponents already think they have solid ammunition in the form of his statements on behalf of Christine Blasey Ford in 2017, when she accused Brett Kavanaugh of sexual assault before his confirmation to the Supreme Court. “For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts,” Biden said at the time. But many Democrats also appear confident in their ability to respond: Pot, kettle, black. They point to more than a dozen women who have accused President Trump of sexual assault and misconduct — including E. Jean Carroll, a writer who last year accused Trump of rape. And in response to Republicans’ calls for Biden to release his personal papers, Democrats have repeated their years-old demand that Trump release his tax returns, something that he has refused to do but that was standard practice for presidential candidates before him.
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Reports emerged last week that senators were planning to return to Washington without first being tested for the coronavirus. That prompted the Department of Health and Human Services to devise an emergency plan to send 1,000 tests to Congress. But over the weekend, Mitch McConnell and Nancy Pelosi issued a rare joint statement turning down that offer. “Congress wants to keep directing resources to the front-line facilities where they can do the most good the most quickly,” they wrote. But even as McConnell announced plans to bring the Senate back into session, the House’s Democratic leaders have decided against reconvening their chamber. “The House physician’s view was the risk to members was not one he would recommend taking,” Steny Hoyer, the House majority leader, told reporters in a conference call last week.
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George W. Bush released a nearly three-minute video on Saturday paying tribute to the medical workers who have led the response to the pandemic, and pointedly challenging Americans of all political persuasions to ditch partisan sniping in favor of solidarity. “In the final analysis, we are not partisan combatants; we are human beings, equally vulnerable and equally wonderful in the sight of God,” he said. “We rise or fall together, and we are determined to rise.” That seemingly tender message apparently rubbed Trump the wrong way: He complained on Twitter that Bush had been “nowhere to be found” during the president’s recent impeachment trial.
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As Pelosi pushes for a $1 trillion infusion of funding for state and local governments, the administration is considering including a stipulation that would prevent so-called sanctuary cities and states from receiving funds. (Those are jurisdictions whose governments decline to fully cooperate with federal immigration officials.) “Regarding the states, as you know, the president has from time to time spoken about linking that to sanctuary cities,” Larry Kudlow, the White House’s chief economic adviser, told Jake Tapper on CNN’s “State of the Union” on Sunday. “I don’t think anything’s been decided yet,” Kudlow added. Demanding that this kind of language be included could serve twin purposes for Trump: penalizing local and state officials who oppose his policies, while also elevating the issue of immigration — one of his favorite campaign topics.
Photo of the day
President Trump at the White House on Sunday after spending a few days at Camp David.
Why is the Federalist Society fighting a proposed rule on federal judges? Our colleague Rebecca Ruiz explains.
A big part of McConnell’s push to get the Senate back in session is his desire to build on a cornerstone of his legacy, confirming conservative judges to the federal bench — many of whom are now awaiting a vote.
And many of those judges have come through the ranks of the Federalist Society, a right-leaning legal group that exerts a heavy influence on conservative thought in the 21st century.
But as Rebecca R. Ruiz and Ben Protess report in a new article, the federal judiciary’s ethics advisory arm recently proposed a new rule that would limit the Federalist Society’s involvement in politics. It would prevent federal judges from belonging to the organization or to its liberal (and slightly less established) counterweight, the American Constitution Society. More than 200 judges have signed a letter opposing the proposal, including Justin Walker, a McConnell protégé who is nominated for a position on the U.S. Court of Appeals.
Rebecca kindly agreed to answer a few questions for On Politics about how the Federalist Society has become such a force in American politics, and what implications such a rule might have for the federal judiciary.
The Federalist Society is hardly a new phenomenon in American politics. For readers who may not be familiar with it, how has the group become so influential in conservative circles?
You’re right: The organization has been around since 1982, when conservative law students created what they saw as an antidote to the mainstream legal establishment. Advocating “some of the ideas that President Reagan was bringing to Washington” and a strict interpretation of the Constitution as written, the group gradually gave similar constituencies scattered across the country strength in numbers and became a breeding ground for conservative judges. Republican presidents like George W. Bush certainly drew from the membership roster in making judicial appointments, but Trump has accorded even more influence to the organization. More than 80 percent of the judges he has named to the nation’s appeals courts have ties to the group.
An ethics panel within the federal judiciary is proposing to ban judges from belonging to the Federalist Society, as well as from the liberal American Constitution Society. Can you explain why the panel is doing this? Many judges have long had ties to both organizations, right? Why change course now?
The judicial ethics committee has justified its suggestion by pointing to public perceptions, explaining its view that “a reasonable and informed public” might view judges affiliated with either group as being advocates for conservative or liberal interests. While there has long been debate about the appropriateness of a judge’s belonging to either the Federalist Society or the younger American Constitution Society, the proposal cited “changing circumstances” and noted that the conduct committee “continues to receive inquiries regarding these organizations.” Over the past three years, as Trump has appointed judges at a record pace, the Federalist Society has regularly figured into confirmation hearings and news media reports.
Over 200 judges have signed a letter opposing the proposed ban, including 45 of Trump’s 51 confirmed appointees to the appellate bench. Why does this concern them so much? Why does it matter to the Federalist Society that sitting judges be allowed to participate as members?
The objecting judges argued that the ban would unfairly limit their right to engage with the legal community. They said the ethics panel had misunderstood the Federalist Society, which, they said, “facilitates open, informed and robust debate.” The judges asserted the ethics panel was treating the group differently and setting an impossible standard, jeopardizing judges’ affiliations with law schools or religious organizations. “If the public comes to perceive certain law schools as liberal or conservative, must judges resign their posts?” the judges wrote. “Surely judges can be members of their churches, temples and mosques; to suggest otherwise would raise serious constitutional questions.”
How does Judge Walker come into play here? Is his career a good metaphor for the broader issues being discussed?
Judge Walker has been a member of the Federalist Society since he was in law school 14 years ago, and in recent years he served on the executive board of his local chapter in Louisville, Ky. His confirmation to the appeals court — much like his confirmation to a federal trial court just last year — is strongly opposed by Democrats and strongly supported by Republicans. In the same way that the selection of judges loomed large in the 2016 election, Trump’s rightward overhaul of the judiciary is already central to his 2020 campaign. His appointment of people with bona fide conservative credentials is a big part of his pitch for re-election.
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