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The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Time is running out to confirm Biden's nominees

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Good morning, Early Birds. We hope you enjoyed the long weekend — even as the Fourth of July was marred by shootings at celebrations in Highland Park, Ill., and Philadelphia. Tips: Thanks for waking up with us.

In today’s edition … The Post's Tony Romm on how Republican states are trying to use federal covid aid to cut taxes … Attorney General Merrick Garland is weighing racial equity as he considers the death penalty in Buffalo, The Post's David Nakamura reports … The latest on the Highland Park shootingBrittney Griner writes to President Biden to push for her freedom …  but first …

At the White House

Time is running out to confirm Biden's nominees, including for key judicial posts

Senate Democrats are running out of time to confirm President Biden’s nominees.

The Senate had been set to confirm Steve Dettelbach as head of the Bureau of Alcohol, Tobacco, Firearms and Explosives when the chamber returns next week — a victory for Biden after he was forced to pull his first choice for the role. But the potential absence of Sen. Patrick Leahy (D-Vt.), who had surgery on Thursday after falling and breaking his hip, has made it unclear when Democrats will have the votes necessary to confirm Dettelbach over Republican opposition.

A spokesman for Leahy said he was resting comfortably after surgery and that it was too soon for the 82-year-old senator and his doctors to discuss when he might return.

Leahy’s absence gives Democrats even more reason to fret that they’re running out of time to confirm judges, ambassadors and other nominees before the midterms, when Republicans need to pick up only one more seat to recapture the Senate majority.

The Senate has confirmed 68 federal judges as well as Supreme Court Justice Ketanji Brown Jackson since Biden took office — far more than the number confirmed at this point in the presidencies of George W. Bush, Barack Obama or Donald Trump.

But progressives focused on the courts are urging the White House and the Senate to move faster.

“If you will permit a basketball analogy, they have played three excellent quarters,” former Sen. Russ Feingold (D-Wis.), the president of the American Constitution Society, a progressive judicial group, said in an interview on Saturday. “But the game is really won in the fourth quarter.”

The American Constitution Society was one of more than two dozen groups that signed a letter to Senate Majority Leader Chuck Schumer; Sen. Dick Durbin, the chairman of the Judiciary Committee; and Biden last month urging them to “redouble your efforts to quickly fill every judicial vacancy with outstanding and diverse judges.” (The letter was first reported by HuffPost.)

There are nearly 120 judicial vacancies on the circuit and district courts; Biden has named nominees for 34 of them.

Feingold said he wanted to see Senate Democrats take two steps to confirm as many judges as possible: scrap at least part of the Senate’s four-week August recess and suspend the “blue slip” process through which home-state senators recommend judicial nominees.

Schumer and other Democratic senators have defended blue slips in the past, but Feingold — a former Judiciary Committee member — said doing away with them would be less radical than what Republicans did when they controlled the Senate.

“It’s not like not giving a Supreme Court nominee a hearing,” he said. “This doesn’t break the rules of the Senate. This is a rule that is simply in there and can be reversed.”

More steps Democrats could take

While most of the frustration with blue slips delays has been trained on Republicans, Democrats have also taken flak.

Christopher Kang, chief counsel for Demand Justice, a progressive judicial group, noted in a memo last month that California had nine district court vacancies without nominees, “which is especially disappointing since both California senators serve on the Judiciary Committee.”

A spokeswoman for Sens. Dianne Feinstein (D-Calif.) and Alex Padilla (D-Calif.) said the senators weren’t the reason that Biden hadn’t named nominees for most of those openings: “There are only two vacancies for which the California Senators have not yet recommended nominees to the President, and each of those only became vacant earlier this year.”

Kang countered that two vacancies without recommendations was still two too many, since the most recent ones was announced in January.

Demand Justice has also pressed Durbin to schedule more confirmation hearings and to consider more nominees at each hearing.

Spokespeople for Schumer and Durbin declined to say whether they're considering taking those steps or any others.

Seventeen judicial nominees are awaiting floor votes and three more awaiting discharge votes — the process by which the Senate can advance nominees if the Judiciary Committee deadlocks. “When the Senate returns, Chair Durbin would like to see these pending nominees confirmed swiftly, and will continue to work with the Leader to find appropriate floor time,” a Durbin spokeswoman wrote in an email to the Early.

It's not just judges

Judges aren’t the only Biden nominees that will be tougher to confirm if Republicans retake the Senate.

Biden has nominated more ambassadors — 121 — than Bush, Obama or Trump had at this point in their presidencies, according to the Partnership for Public Service. But the Senate confirmed only 72 of them, compared to 93 at this point in Bush’s first term and 73 at this point in Obama’s.

Biden’s picks for major economies such as Brazil and South Africa are among those awaiting confirmation. Los Angeles Mayor Eric Garcetti, Biden’s nominee for ambassador to India, has languished for nearly a year amid uncertainty Democrats have the votes to confirm him; Garcetti’s parents even hired lobbyists to help move the process along.

“The Senate confirmation process is slower with each passing administration,” said Valerie Smith Boyd, the director of the Partnership for Public Service’s Center for President Transition. That, in turn, “disincentivizes administrations from flooding the zone with nominees.”

Sen. Ted Cruz (R-Tex.) and other Republicans spent months blocking Biden’s picks for ambassadors, further slowing down the process. The Revolving Door Project recently calculated that Republican stalling tactics could prevent the Senate from filling all the vacant posts that require Senate confirmation even if the chamber did nothing but confirm Biden’s nominees for the rest of the year.

Still, Biden hasn’t nominated people to fill some top posts, including ambassadors to Italy and the United Arab Emirates and assistant attorney generals for the Justice Department's civil and tax divisions. (Biden initially picked Javier Guzman to lead the civil division but withdrew the nomination nearly a year ago.)

The White House continues to press the Senate to confirm as many nominees as possible, according to a White House official. And Secretary of State Antony Blinken has urged senators to move faster to confirm ambassadors, according to a State Department official.

Correction: A previous version of this newsletter misstated when the most recent district court vacancy in California was announced. It was in January, not in April.

On the Hill

GOP states are trying to use federal covid aid to cut taxes

The covid money trail: “More than a year after Congress approved a $1.9 trillion coronavirus relief package, Republicans in nearly two dozen states have ratcheted up efforts to tap some of those funds for an unrelated purpose: paying for tax cuts,” our colleague Tony Romm reports. “The moves have threatened to siphon off aid that might otherwise help states fight the pandemic, shore up their local economies or prepare for a potential recession.”

  • “The intensifying Republican campaign targets one of the signature programs Democrats approved as part of President Biden’s American Rescue Plan last year. At the urging of the nation’s mayors and governors, Congress delivered what largely amounted to a blank check for every city and state to bolster their budgets.”
  • “Congress ultimately laid down few conditions for how local leaders could use the pot of money, which totaled $350 billion nationally. But they were clear about one thing: The federal government would not subsidize state tax cuts.”
  • “Since then, however, GOP leaders have challenged the tax cut prohibition in federal courtrooms and state capitals. Attorneys general in 21 states have fought to overturn the Biden administration’s policy, federal court filings show, backed at times by powerful groups like the U.S. Chamber of Commerce, whose corporate members have lobbied conservative-leaning states to reduce their tax bills. In nearly every case, these legal efforts have prevailed, hamstringing the Treasury Department while opening the door for states to pursue their own tax cuts.”

In the agencies

Garland weighs execution for Buffalo shooter, another fatal shooting in Chicago suburb

What does ‘racial equity’ look like after a mass shooting? “The Biden administration’s pledge to pursue racial equity in the criminal justice system is facing a crucial test: whether federal prosecutors will seek the death penalty for the self-avowed white supremacist charged with slaughtering 10 Black people in a Buffalo grocery store in May,” our colleague David Nakamura reports.

  • “Some survivors and family members of those killed told Attorney General Merrick Garland during a private meeting in June that they are supportive of bringing a capital case against the 18-year-old suspect, Payton Gendron.”
  • “Their stance conflicts with the long-standing position of civil rights advocates, who have generally opposed the death penalty out of concerns it is unjust and disproportionately used against racial minorities … As heinous as the Buffalo killings were, Black civil rights leaders say, seeking to execute the gunman would represent a setback in their efforts to abolish capital punishment.”

Highland Park shooting shatters July Fourth activities: Police arrested a “person of interest” Monday evening after a gunman perched on a rooftop fired dozens of rounds at spectators at a Fourth of July parade in a Chicago suburb on Monday, killing at least six people and adding yet another name to the list of American towns caught up in a countrywide wave of mass-casualty shootings, The Post reports

While Congress late last month passed the first notable gun-control legislation in decades, the occurrence of yet another mass shooting — this one at a gathering celebrating the quintessential American holiday — restarts the emotional and political debate on gun control.

“There are no words for the kind of monster who lies in wait and fires into a crowd of families celebrating a holiday with their community,” Illinois Gov. J.B. Pritzker’s (D) said. "Prayers alone will not put a stop to the terror of rampant gun violence in our country.”

Opponents of gun control pushed back, denouncing the shooting but rejecting the notion that America’s mass-shooting problem is related to easy access to firearms, including rapid-fire rifles such as the AR-15:

  • Darren Bailey, the Republican candidate for Illinois governor, posted a video on Facebook about two hours after the shooting, asking supporters to pray for law enforcement and the families of the victims, then return to celebrating the holiday.

At the White House

Brittney Griner pleads to Biden, White House in letter

‘I’m terrified I might be here forever’: “WNBA star Brittney Griner, who has been detained in Russia since February on drug charges, wrote a letter to Biden that was delivered to the White House on Monday morning,” per our colleague Jake Russell.

  • “As I sit here in a Russian prison, alone with my thoughts and without the protection of my wife, family, friends, Olympic jersey, or any accomplishments, I’m terrified I might be here forever,” Griner wrote in an excerpt of the letter shared by Wasserman, a talent agency that represents the basketball star.
  • “I realize you are dealing with so much, but please don’t forget about me and the other American Detainees,” she added. “Please do all you can to bring us home. I voted for the first time in 2020 and I voted for you. I believe in you. I still have so much good to do with my freedom that you can help restore. I miss my wife! I miss my family! I miss my teammates! It kills me to know they are suffering so much right now. I am grateful for whatever you can do at this moment to get me home.”

The Data

How the Supreme Court ruled in the major decisions of 2022, visualized: “The Supreme Court’s decision to overturn Roe v. Wade and eliminate the nationwide right to abortion dominated one of the court’s most consequential terms,” our colleagues Ann E. Marimow, Aadit Tambe and Adrian Blanco report. “The emboldened 6-3 conservative majority, with three [Trump] nominees, wasted little time expanding the rights of gun owners to carry firearms in public, strengthening the role of religion in public life and sharply curtailing the Biden administration’s power to combat climate change.”

The Media

Early reeeads 🐣


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