Affirmative action gets a chilly SCOTUS reception

Oct 31, 2022

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A line of people walking in front of the Supreme Court.

Conservative Supreme Court justices wondered aloud when the consideration of race in college admissions would stop. | Francis Chung/E&E News/POLITICO

DEAD PRECEDENTS? — The Supreme Court's conservative majority sounded ready to rein in the use of race-based affirmative action in college admissions while hearing the first of two marquee cases before the justices this morning.

In debating the University of North Carolina's policies, several justices wondered when the consideration of race would stop, after the court's 2003 decision upholding affirmative action envisioned a 25-year timeline for winding it down. "I don't see how you can say that the program will ever end," said Chief Justice JOHN ROBERTS, a longtime opponent. Justice CLARENCE THOMAS, who's decried the ways that he felt affirmative action policies stigmatized him, said he didn't "put much stock in" arguments for the benefits of diversity "because I've heard similar arguments in favor of segregation, too."

Liberal justices countered that affirmative action helps colleges understand applicants in their entirety. "If you're Black, you're more likely to be in an under-resourced school," said Justice SONIA SOTOMAYOR, who has called herself a proud beneficiary of affirmative action. "Why do you want the admissions officer to say, 'I'm not going to look at the race of the child to see if they had all of those socioeconomic barriers present'?" Solicitor General ELIZABETH PRELOGAR warned of societal "shock waves" if the court overturns Grutter v. Bollinger.

The accompanying Harvard case is up now. Justice KETANJI BROWN JACKSON is recusing herself from this one. Updates and recap so far from Bloomberg

BREAKING — "Trump asks Supreme Court to intervene in effort by Congress to get his tax returns," CNBC

MUSK READ — ELON MUSK's new Twitter leadership team spent the weekend talking with the company's top executives about plans to lay off one-fourth of the company's workers, WaPo's Elizabeth Dwoskin and Faiz Siddiqui report from San Francisco, as Musk appears to be leaning on a cadre of longtime personal associates in his early days atop the company. Longtime personal lawyer ALEX SPIRO took the lead on the proposed layoffs, which could involve more than 7,000 workers in "sales, product, engineering, legal, and trust and safety," while allies DAVID SACKS and JASON CALACANIS also appear to have joined the company. Sacks is a "conservative firebrand and donor" who's blasted what he sees as Big Tech censorship.

— Musk also dissolved Twitter's board of directors last week, a new filing today revealed, per CNN .

— Sen. CHRIS MURPHY (D-Conn.) announced that he's asking the Committee on Foreign Investment in the U.S. "to conduct an investigation into the national security implications of Saudi Arabia's purchase of Twitter."

WHAT THE WHITE HOUSE IS PUSHING — President JOE BIDEN added a new item to his schedule today: He'll speak at 4:30 p.m. about "reports over recent days of major oil companies making record-setting profits even as they refuse to help lower prices at the pump."

— AP's Zeke Miller and Seung Min Kim report that Biden will go further than just criticizing energy companies: He'll float the idea of slapping a "windfall tax" on their profits. (Of course, that would have to go through Congress, where it seems unlikely to have enough support.)

BATED BREATH IN BRAZIL — Biden congratulated LUIZ INÁCIO LULA DA SILVA on his victory in Brazil's presidential runoff Sunday night, one of a host of global leaders who quickly acknowledged the leftist former president's win amid fears that the right-wing incumbent JAIR BOLSONARO would attempt to stage a coup to stay in power. Bolsonaro has yet to speak on the election results, and he is being urged to fight by many U.S. supporters of DONALD TRUMP's election lies, including STEVE BANNON. More from the NYT

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FIRST IN PLAYBOOK, via Zach Montellaro: Here's a first look at a pair of polls in two closely watched gubernatorial races. Both polls come from conservatives; they're sponsored by DAVID BOSSIE's Citizens United and conducted by KAConsulting LLC, KELLYANNE CONWAY's firm.

— Michigan: Democratic Gov. GRETCHEN WHITMER leads Republican nominee TUDOR DIXON, 48% to 41%. Seven percent were undecided. The memo from Conway

— New York: The race in the Empire State is incredibly tight, with Democratic Gov. KATHY HOCHUL at 46% and GOP Rep. LEE ZELDIN at 45%, and 5% of voters undecided. Zeldin's at 34% in NYC. The New York memo

BIG PICTURE

THE CLOSERS — Biden and former President BARACK OBAMA will headline a rally with JOHN FETTERMAN and JOSH SHAPIRO in Philadelphia on Saturday, a marquee event in the final days of the election.

THE FRONT LINES OF THE ELECTION — Some poll workers are feeling nervous about potential confrontations or disruptions at polling locations, AP's Claire Savage reports from Milwaukee. The prospect of conspiracy theorist poll watchers looms over training for election workers, she finds, though some poll workers say they're not afraid.

BATTLE FOR THE SENATE

STRAIGHT FROM THE HORSE'S MOUTH — "10 Georgia Swing Voters on the Election That Could Decide the Senate," by NYT's Patrick Healy and Adrian Rivera

BATTLE FOR THE HOUSE

RETURN OF THE REPUBLICAN MODERATE — Centrists have all but been extinguished from Congress, but a crop of GOP House candidates in New England are touting themselves as bipartisan and far from the party's MAGA base, NYT's Stephanie Lai reports from Providence, R.I. "Republican leaders are working to revive the party's standing with an estranged but critical swath of voters in the region who prefer politicians who do not operate in lock step with the national parties." Dems argue that regardless of the qualities of candidates like ALLAN FUNG and GEORGE LOGAN, voting for them would return the GOP's far right to power.

BATTLE FOR THE STATES

DEMOCRACY WATCH — Arizona Republican MARK FINCHEM, who's running to control the state's elections on a platform that denies the reality of the last one, has barely any campaign for secretary of state: There's "little paid advertising, scant public events and even rarer media interviews." And he still might win, report WaPo's Isaac Arnsdorf and Yvonne Wingett Sanchez from Phoenix. In office, Finchem could transform the state's elections and refuse to certify Democratic victories. His quiet campaign echoes those of DOUG MASTRIANO or KRISTINA KARAMO — but the prospect of a GOP wave in Arizona gives him much more of a real shot.

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HOT POLLS

— NYT/Siena: The Times' final polls of the cycle have fairly good news for Democrats: They're slightly ahead or tied in all four of the top Senate battlegrounds. Fetterman leads MEHMET OZ 49% to 44% in Pennsylvania (pre-debate, notably); Sen. MARK KELLY leads BLAKE MASTERS 51% to 45% in Arizona; Sen. RAPHAEL WARNOCK leads HERSCHEL WALKER 49% to 46% in Georgia; and Sen. CATHERINE CORTEZ MASTO is tied with ADAM LAXALT at 47% in Nevada.

— Arizona: OHPredictive finds Masters making up a lot of ground since earlier this month; he now trails Kelly 48% to 46%. For governor, Republican KARI LAKE leads KATIE HOBBS 49% to 47%. But Democrats are ahead in the secretary of state and AG races. … GOP pollster Fabrizio/Club for Growth Action have Kelly ahead 47% to 46%, NBC's Marc Caputo scooped , and Lake up 50% to 47%.

— Georgia: The last Atlanta Journal-Constitution poll of the cycle has Walker narrowly leading Warnock, 46% to 45%. GOP Gov. BRIAN KEMP is beating STACEY ABRAMS 51% to 44%.

— New Mexico: Democratic Gov. MICHELLE LUJAN GRISHAM leads MARK RONCHETTI 46% to 39%, per KOB-TV/SurveyUSA . For secretary of state, Democratic incumbent MAGGIE TOULOUSE OLIVER leads AUDREY TRUJILLO, who denies the 2020 election, 43% to 36%. Both are narrower leads than before.

HOT ADS
Via Steve Shepard

— Oklahoma: The Republican Governors Association's latest ad unearths footage of Democrat JOY HOFMEISTER saying she supports "sanctuary cities."

— Kansas: Democratic Rep. SHARICE DAVIDS' latest ad borrows from a popular insurance ad, featuring a duck that repeatedly quacks "Brownback," tying GOP opponent AMANDA ADKINS to unpopular former Republican Gov. SAM BROWNBACK.

— New York: Hochul adopts a tough-on-crime stance in her latest ad , which hits Zeldin on gun control and says Hochul "strengthened bail laws to keep repeat offenders off our streets."

— New Hampshire: Democratic Sen. MAGGIE HASSAN touts her bipartisan cred in her closing-argument ad : "[G]etting things done means reaching across the aisle, like working with Republicans" on medical billing and police hiring, Hassan says. "And it means standing up to the president, whatever it takes."

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JUDICIARY SQUARE

MORE FROM SCOTUS — The Supreme Court refused to block lawsuits against Turkey over Turkish security forces' melee with protesters in Washington in 2017, per the AP . Turkey had argued that it should be shielded under American law, but SCOTUS turned away its bid without comment.

THE ECONOMY

FED UP — Fed Chair JEROME POWELL's drive to raise interest rates and cool down the economy could threaten the bipartisan popularity he's enjoyed in Washington, NYT's Jeanna Smialek reports . Closely attuned to public perceptions, Powell reads four newspapers daily and monitors economists' Twitter debates. "Mr. Powell's responsiveness has often been viewed as one of his strengths — but it is now prompting some economists and investors to question whether he will be able to stick by the central bank's plan to wrangle inflation" if the economy starts to take a hit.

— An interesting, under-the-radar ramification of rising interest rates: The Fed is losing money now, reports WSJ's Nick Timiraos . "The central bank's operating losses have increased in recent weeks because the interest it is paying banks and money-market funds to keep money at the Fed now exceeds the income it earns on some $8.3 trillion in Treasury and mortgage-backed securities it accumulated during bond-buying stimulus programs over the past 14 years."

A BIT OF RELIEF — "New-Car Prices Are Starting to Cool After Years of Soaring to New Records," by WSJ's Ryan Felton

WAR IN UKRAINE

WITH FRIENDS LIKE THESE — Biden got angry with VOLODYMYR ZELENSKYY in a June phone call, when the Ukrainian president started asking for more aid right after Biden told him about the latest tranche of U.S. support, NBC's Carol Lee, Courtney Kube and Dan De Luce scooped . "The American people were being quite generous, and his administration and the U.S. military were working hard to help Ukraine, he said, raising his voice, and Zelenskyy could show a little more gratitude." The administration says the leaders have since had friendlier calls.

UNEXPECTED ANGLE — "Russia recruiting U.S.-trained Afghan commandos, vets say," by AP's Bernard Condon

TRUMP CARDS

THE INVESTIGATIONS — The criminal fraud trial against the Trump Organization kicked off with opening statements this morning. "This case is about greed and cheating," a prosecutor laid out. Defense attorneys sought to shift the blame to ALLEN WEISSELBERG, who's expected to be a star witness for the prosecution: "The person at the Trump Corporation who was responsible for instructing that all of this income not be reported on W-2's is none other than Mr. Weisselberg himself," one said. More from ABC

— Selecting a panel of jurors who could be impartial about the former president was difficult, NYT's Jonah Bromwich writes . "Both sides are well aware of the pitfalls that confront trial attorneys in an age of political polarization that has bled into the courtroom. If a juror expressed bias either for or against Mr. Trump, it could lead to a mistrial or a hung jury."

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CONGRESS

POLITICAL VIOLENCE FEARS — "Paul Pelosi assault spurs calls on the Hill for boosted lawmaker security," by Burgess Everett and Andrew Desiderio: "[W]hile any legislative response remains up in the air, [Chris Murphy] isn't alone in his concerns — calling for a discussion about whether congressional leadership and their families should be protected at all times, and a debate about whether there should be a lower trigger for lawmakers to be assigned temporary details when they face threats."

LONG SHOT — Some Democrats are planning a lame-duck drive to bring back the expanded child tax credit, or a smaller version of it, Semafor's Joseph Zeballos-Roig reports . Sens. SHERROD BROWN (D-Ohio) and MICHAEL BENNET (D-Colo.) want to pair it with the renewal of an expired R&D tax break for businesses. But the price tag would likely earn plenty of opposition.

SAD NEWS — ANNE MARIE GIESKE, one of two Americans killed in the Halloween crowd crush in Seoul, was the niece of Rep. BRAD WENSTRUP (R-Ohio), his office said . "She was a gift from God to our family," Wenstrup said. "We loved her so much."

BEYOND THE BELTWAY

FRAUD FILES — As Florida Gov. RON DeSANTIS seeks to step up arrests of people for voter fraud, the state has changed its probation form to force signatories to agree that they're solely responsible for determining whether they can vote, the Tampa Bay Times' Lawrence Mower reports from Tallahassee. "Some voting advocates said the warning could be helpful," he writes. "But the timing of the changes — just eight days after DeSantis held a news conference accusing felons of voting illegally — has some questioning the state's motives," if the form could help pave the way for more arrests.

POLICE REFORM WASHES OUT — Around the country, the drive to implement policing reforms and accountability after the murder of GEORGE FLOYD has slowed down or even reversed, AP's Denise Lavoie, Tatyana Monnay and Juliette Rihl capture in a big roundup of how the mood has changed. Some of the changes have sparked conservative backlash, while a lack of funding hampers reform elsewhere.

MEDIAWATCH

KNOWING STEVE KORNACKI — "The Kornacki Paradox," by Anna Peele in WaPo Magazine: "Kornacki is on a monomaniacal quest for clarity, regarding both the returns and what they mean about the country. … And yet there's an irony to the Kornacki phenomenon. Viewers look to him for answers, but Kornacki himself understands better than most the fragility of certainty."

PLAYBOOKERS

SPOTTED: Michael Morell and his wife Mary Beth at the Salamander in Middleburg on Sunday, celebrating their 30th wedding anniversary.

TRANSITIONS — David Bader is now press secretary for Sen. Deb Fischer (R-Neb.). He previously was press secretary for Sen. Roy Blunt (R-Mo.). … Bethany Torstenson is now a marketing coordinator with Red Spark Strategies. She previously was a digital strategist with the Strategy Group Company.