The Supreme Court revisits affirmative action today. The stakes are high.


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In today’s edition …  More from our reporting on the diversity of lawyers who argue before the Supreme Court … Trail Mix: Worries in Connecticut for Democrats … Isaac Arnsdorf reports that election denier Mark Finchem’s sleeper campaign closes in on MAGA prize … What we know about the attack on Paul Pelosi … A new proposal from the left to safeguard elections … What we’re watching: Woodward and Caldwell… … but first …

The Supreme Court revisits affirmative action

The Supreme Court will hear oral arguments this morning in two highly anticipated cases in which the justices consider whether Harvard and the University of North Carolina — and, by extension, other public and private universities — can use race as a factor in admissions.

As our colleague Robert Barnes points out, college administrators’ authority “to use race in a limited way to build a diverse student body has barely survived previous challenges. But even a defender of such policies, Justice Sandra Day O’Connor, wrote in 2003 that racial preferences were not likely to be needed in 25 years.”

The Supreme Court has undergone almost a complete turnover in the 19 years since O’Connor’s prediction. For the first time in its history, White men don’t make up the majority of the justices, “and includes justices who say affirmative action programs directly shaped their lives.”

On the other hand, the court now has a more dominant conservative majority in place.

Here are a few points to watch as the arguments unfold today:

  • Where the justices stand: Justice Clarence Thomas is an outspoken opponent of affirmative action. Justice Sonia Sotomayor is its boldest defender and once called herself the “perfect affirmative action child.” Chief Justice John G. Roberts Jr. has been animated for decades by “a deep skepticism of what he has called the ‘sordid business’ of dividing Americans by race,” Barnes writes. (Here’s what each justice has said about affirmation action in the past.)
  • A potential wild card: “If there is a wild card among them, it might be conservative Justice Brett M. Kavanaugh, the member many consider key to the court’s direction,” Barnes writes.  “Kavanaugh’s record as an advocate and judge suggest an aversion to racial classifications. But he has also displayed an aggressive pursuit of diversity among the clerks he has hired, with repeated outreach to Black student organizations at the nation’s elite law schools.”
  • What Harvard and UNC will argue: “Universities say there is a continuing need for affirmative action to build diverse student bodies, which they say strengthen the overall learning environment with distinct perspectives and experiences,” our colleague Ann Marimow writes. “Look for lawyers representing Harvard and UNC to characterize as ‘holistic’ the process the universities use to review applicants. If schools are not permitted to use race, these universities say, enrollment by minorities could decline dramatically.”
  • What they’ll say about Brown: Both sides claim the legacy of Brown v. Board of Education, the unanimous 1954 decision in which the justices ruled against segregation in public schools. And both of them might have a point. “The Brown opinion is profoundly ambiguous, and they are appealing to different aspects of the opinion, legitimately different aspects,” Michael W. McConnell, a Stanford law professor, told the New York Times’s Adam Liptak. “Is it a case about not assigning on the basis of race or is it a case about making sure that African American schoolchildren get a fair shake in education?”

How the justices could directly impact the diversity of lawyers who argue before them

During our reporting on why women and Black and Hispanic lawyers are underrepresented among lawyers who argue before the Supreme Court — which we shared in a special edition of this newsletter on Sunday — a few people raised an interesting point: While the justices have limited influence over who argues before them, they do have the power to appoint lawyers to make oral arguments. They occasionally use it.

This happens about once or twice a term — often when there is a change in administration and the Justice Department no longer wants to be part of the case, or because a party to a lawsuit withdraws and the court still wants to hear an argument in favor of their position.

The justices have overwhelmingly appointed white men to argue these cases, and they’ve usually tapped former clerks, according to lawyers and academics who follow the court.

  • “That is a place where the court itself could if it wanted to make a priority of increasing diversity,” said Brianne Gorod, chief counsel at the constitutional Accountability Center. “It is not something that they’ve really taken advantage of in most of their recent appointments.”

Since 2000, at least 33 lawyers have been appointed by the court to argue before the justices, according to data collected through 2016 by Kate Shaw, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law and a former Supreme Court clerk, and by The Early in the years since. (Flip to page 63 of Shaw’s law review article for her list.)

The Early ascertained the gender of all these lawyers: 27 are men and six are women.

The Early couldn’t confirm a significant percentage of the race of these lawyers. But Deepak Gupta, whom the court picked to argue in Smith v. Berryhill in 2019, testified before President Biden’s Supreme Court commission last year that of the roughly 70 amicus appointments the court has made since 1926, “a mere seven have been women and only four have been people of color.”

Gupta urged the court to broaden its current practice of allowing the justice with responsibility for the circuit court where the case arose to select a former clerk. The court should “consider creating an advisory panel — diverse both in demographic characteristics and in subject-matter expertise — who could recommend advocates to the Supreme Court to appoint when appropriate,” Gupta said in written testimony.

  • “Although amicus appointments account for a limited number of arguments in any Term, expanding the voices heard before the Court is in keeping with the Court’s role as an institution that should reflect the diversity of the bar as a whole,” Gupta added.

The appointments can help former clerks secure their first arguments before the court. The first case that Roberts argued — United States v. Halper in 1989 — was as a court-appointed lawyer.

Shaw’s analysis went back to 1926, and she was surprised how little had changed in nearly a century.

“In reviewing the fifty-nine amicus invitations the Court has issued, the lack of demographic diversity is immediately striking,” she wrote. “This is to be expected in the case of early invitations, but the continuing exclusion of women and minorities from the amicus ranks is surprising.”

Worries in Connecticut for Democrats

Camila DeChalus on the trail in Danbury, Conn.: The race in Connecticut’s Fifth District race is one of the most competitive in New England, with Republicans aggressively trying to end their drought — in a year when even blue districts are proving challenging for Democrats.

Several voters I talked to said high inflation is a top concern, and they have doubts Democrats can effectively solve the problem.

“The economy is the most important issue,” Steve Griffing, a registered independent voter, said in an interview in downtown Danbury. “I don’t think Democrats have done a good enough job to win reelection.”

Connecticut has been entirely represented by Democrats in the House since 2009. Rep. Jahana Hayes (D-Conn.), who is seeking a third term, is up against Republican George Logan, a former state senator who would be the district’s first Afro-Latino representative in the House.

Logan has campaigned aggressively on economic issues and says if elected he would focus on creating more employment opportunities.

“We need to go in a different direction. We need to focus more again on the economy, need to focus more on jobs,” he said in a recent interview in Danbury.

Hayes has pushed back on Logan’s criticism and said she is committed to addressing inflation. She also said she wants to focus on increasing the minimum wage and creating more affordable housing. 

  • “I have tried, and Democrats have been trying to address all of the pressure points in this economic crisis, not just relaxing regulations for corporations,” she said in a recent phone interview.

Margo Jones, 34-year-old resident of East Hartford, said that a lot is at stake for this upcoming election, and believes Hayes will deliver on her promises.

“She knows who we are, she understands what we need and has continued to fight for those things,” she said. 

You can follow Camila’s coverage here and her on Twitter.

Election denier Mark Finchem’s sleeper campaign closes in on MAGA prize

A race to watch: “On the night Mark Finchem won the Republican nomination for Arizona’s secretary of state, he didn’t have a victory party,” our colleagues Isaac Arnsdorf and Yvonne Wingett Sanchez write. “Instead, he showed up at the party for GOP gubernatorial candidate Kari Lake.”

  • “Finchem is running a virtually nonexistent campaign for statewide office, with little paid advertising, scant public events and even rarer media interviews. In his bid for a position that hasn’t historically been especially prominent, Finchem — frequently donning a cowboy hat and a ‘Sunday go-to-meeting tie’ — appears to be betting that he can ride the coattails of flashier Republicans on the ballot, notably Lake and Senate candidate Blake Masters.”
  • “The stakes are enormous, as it would elevate Finchem to second in line of succession for governor and hand him the power to upend how elections are run in a key swing state that decided the 2020 election and could tip the electoral college again in 2024.”

What we know about the attack on Paul Pelosi

It’s been three days since Paul Pelosi, House Speaker Nancy Pelosi’s husband, was attacked in their home in San Francisco. 

  • San Francisco District Attorney Brooke Jenkins on Sunday confirmed that authorities have determined David DePape, the suspect in the violent attack Friday on Paul Pelosi, was looking for Nancy Pelosi when he forced entry into the couple’s Pacific Heights home,” the San Francisco Chronicle reported late Sunday.
  • The San Francisco district attorney’s office said Sunday that the suspect broke into the house through a rear window and then went upstairs, where he found Paul Pelosi. The D.A. has said she will bring forward multiple felony charges on Monday and expects an arraignment on Tuesday, The Post’s Amy B Wang and Molly Hennessy-Fiske wrote.
  • The Chronicle added: “The arriving officers determined “there were only two people in the home at the time of the incident,” Jenkins said. “There was no third person present. We have nothing to suggest that the two men knew each other prior to this incident.”

Jenkins, the San Francisco district attorney, held a news conference not to reveal new information but because of how much disinformation has been spread about the attack on Paul Pelosi. 

Chief among the spreaders of disinformation is Twitter’s new owner, Elon Musk, who now calls himself Chief Twit. He tweeted out an article from an outlet steeped in misinformation 

“There is a tiny possibility there might be more to this story than meets the eye,” Musk wrote Sunday morning, pointing his 112 million followers to a sensationalist account of the episode published by a site known for spreading right-wing misinformation before deleting the tweet several hours later,” our colleague Isaac Stanley-Becker wrote. 

One person steeped in conspiracy theories and hateful language: DePape. 

  • He published hundreds of blog posts in recent months sharing memes in support of fringe commentators and far-right personalities. Many of the posts were filled with screeds against Jews, Black people, Democrats, the media and transgender people, The Post’s Aaron C. Davis and Dalton Bennett report.

Meanwhile Republicans officials are mostly condemning the attack while distancing themselves from the violent rhetoric coming from some in their party. 

When asked if there was a connection between rising political violence and Trump’s rhetoric, New Hampshire Gov. Chris Sununu (R) said on NBC’s “Meet the Press” there was “a connection to everybody in all of this,” Amy and Molly report. 

A new proposal from the left to safeguard elections

First in The Early: The Center for American Progress is out with a new proposal for protecting elections that the liberal think tank is urging lawmakers to take up if they manage to pass legislation after the midterms to revise the Electoral Count Act. While it’s tough to imagine that Republicans will be ready to pass another election bill right away, the think tank is making the pitch.

CAP said the goal of its proposal is to “require consistent enforcement of voting laws” and “to prevent misconduct by rogue state and local election officials.”

“It would be another major step toward eliminating the gravest threats to elections. And it would demonstrate that members of Congress have the resolve to set aside their differences for the long-term preservation of democracy,” Alex Tausanovitch, CAP’s director of campaign finance and electoral reform, writes in the proposal. 

What else does Bob Woodward know? 

Woodward, associate editor at The Washington Post, is bucking tradition and releasing the audio recordings of one of his most famous interviewees. 

Today at 11:30 a.m. Eastern, Leigh Ann will speak with the legendary journalist about his new audiobook, “The Trump Tapes,” his warning about the former president and his assessment of the state of American democracy heading into the midterms. Tune in here. 

Meanwhile, opening statements in the criminal trial of the Trump Organization begin today. The trial is expected to last up to six weeks.

And in foreign policy-related news, former Brazilian president Luiz Inácio Lula da Silva staged an incredible comeback Sunday. Biden congratulated Lula for winning the “free, fair, and credible elections” over right-wing President Jair Bolsonaro. But is this truly the last we’ll see of the self-styled “Trump of the Americas?” 

Thanks for reading. You can also follow us on Twitter: @theodoricmeyer and @LACaldwellDC.

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