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The Early 202

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

House GOP will move quickly to lock down leadership team

The Early 202

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

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In today's edition …  Solicitor General Prelogar highlights Supreme Court bar's lack of diversity during affirmative action argumentMore from our project on the Supreme Court barThe latest on Paul Pelosi Marc Fisher and Meagan Flynn report that early voters lament high prices and disunity, yet vote for opposite sides … but first …

House GOP will quickly move to lock down their leadership team

NEWS: House Republicans will announce later today that their leadership elections will take place just one week after the midterms, a source familiar with the planning said.

The decision to quickly lock down the conferences' top slots is a strategic move to ride the high if Republicans retake the House and cement  the top leadership team and pave the way for House Minority Leader Kevin McCarthy (R-Calif.) to become speaker in January.

It’s hard to start a fight when people are still celebrating.

Members of the far-right House Freedom Caucus, however, have said they want the conference to vote on House rule changes to give rank-and-file members more power before leadership elections.

It's unclear if the announcement expected today will include a schedule for rules votes.

McCarthy will run for the top slot as either speaker or leader, depending on whether Republicans win the majority.

Rep. Steve Scalise (R-La.), the current minority whip, is running for the No. 2 spot, whether it’s majority leader or minority whip.

The race for the No. 3 position in the House Republican hierarchy — majority whip if Republicans regain control — is the most contentious race. Three lawmakers are running: Rep. Tom Emmer (R-Minn.), the current chair of the National Republican Campaign Committee; Rep. Drew Ferguson (R-Ga.), who’s currently deputy whip; and Rep. Jim Banks (R-Ind.), the head of the Republican Study Committee.

Rep. Elise Stefanik (R-N.Y.) is all but guaranteed to win reelection as conference chair — the No. 3 slot in Republican leadership right now, but the No. 4 position if Republicans are in the majority — but will be challenged by Freedom Caucus member Rep. Byron Donalds (R-Fla.)

Reps. Richard Hudson (R-N.C.) and Darin LaHood (R-Ill.) are running for NRCC chair, and Rep. Mike Johnson (R-La.) is running for vice chair of the conference. Rep. Gary Palmer (R-Ala.) is hoping to stay as policy chair. There will also be a race for GOP conference secretary.

The candidate forum will take place Monday, Nov. 14, the first day the House is back in session after the midterms, the announcement is expected to say. That’s also the day that newly elected lawmakers make their first trip to the Capitol as members-elect

The elections are conducted via secret ballot. The winner of the conference election for speaker must then be elected speaker by the full House in January.

Democrats have not announced when they will hold their leadership elections, but aides note it will not be the week of Nov. 14.

Thanks to Marianna Sotomayor for her help with this item.

From the courts

Prelogar highlights Supreme Court bar's lack of gender diversity during affirmative action argument

Chief Justice John Roberts and Associate Justice Samuel Alito on Oct. 31 challenged attorney Seth Waxman on Harvard's admission policies. (Video: The Washington Post)

The Supreme Court’s 6-3 conservative majority appears poised to strike down affirmative action, overturning decades of precedent used to cultivate diverse student bodies in higher education. The end of affirmative action could also mean a sharp decline in the number of Black and Hispanic students who attend college.

During the nearly five-hour-long hearing concerning the constitutionality of race-conscious admission policies at Harvard and the University of North Carolina, the court’s conservatives “seemed unsatisfied with assertions from lawyers representing the schools that the end was near for the use of race-conscious policies,” per our colleagues Robert Barnes, Ann E. Marimow and Nick Anderson. “Under repeated questioning, those lawyers conceded they could not provide a date-specific answer to the question: ‘When will it end?’”

  • “What if it continues to be difficult in another 25 years” to create a diverse student body? Justice Amy Coney Barrett asked North Carolina Solicitor General Ryan Y. Park. “So what are you saying when you’re up here in 2040? Are you still defending it like this is just indefinite? It’s going to keep going on?”

And Cameron Norris, a lawyer for Students for Fair Admissions, said that racial classifications “increase racial consciousness” and “cause resentment,” by “treating people differently based on something they can’t change,” per the New York Times’s Anemona Hartocollis.

U.S. solicitor general Elizabeth B. Prelogar argued ending affirmative action would negatively impact “every important institution in America,” including the military, medical and scientific communities, and corporate America.

Bar diversity

During an exchange with Justice Brett M. Kavanaugh, Prelogar pointed to the lack of gender balance among Supreme Court litigants as “a common sense example of that I would hope would resonate with this court” with regard to measuring the progress of diversity in American institutions.

There is a “gross disparity” in the makeup of lawyers who argue before the court, she said.

  • “The court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50 percent or more of law school graduates,” Prelogar said. “And I think it would be reasonable for a woman to look at that and wonder, is that a path that’s open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity in representation, it can matter.”

It’s almost as if Prelogar read our story that ran Sunday on how women and Black and Hispanic lawyers are underrepresented among the lawyers who argue before the court. That said, the solicitor general’s office itself has fewer female attorneys than male ones:

  • As we wrote, only seven of the 21 lawyers who work under Prelogar are women. All five deputy solicitors general are White men. And while four of the lawyers in the solicitor general’s office are Asian American, there don’t appear to be any Black or Hispanic lawyers in the office, nor any women of color.

School ties

In the legal world, particularly in the rarefied air of the Supreme Court universe, there’s a big focus on which elite law school you attended.

But as Arizona Attorney General Mark Brnovich, a Republican, told us, there is some tension over the lack of educational diversity at the court.

“There are a lot of great advocates who may be men, may be women, may be from diverse economic backgrounds or diverse cultural, racial backgrounds, that we have kind of excluded because they didn’t go to Ivy League schools, or didn’t work in the solicitor [general’s] office, or didn’t clerk for a Supreme Court justice,” Brnovich said. “And that’s the problem.”

So, where did the lawyers we looked at for our examination of the bar from the start of the 2017 term go to law school?

Nearly a quarter of the 374 lawyers who’ve appeared before the court since the start of the 2017 term graduated from Harvard Law School, according to an analysis done by The Early. More than half of them went to law school at only five universities: Harvard, Yale, the University of Chicago, the University of Virginia and Stanford.

Other top law schools whose alumni often argue before the court include Columbia (11 since the start of the 2017 term), Georgetown University (10), New York University (10), the University of Michigan (10), the University of Pennsylvania (eight), the University of Texas (seven), Duke, (six), Northwestern (six) and the University of California, Berkeley (five).

The numbers are comparable for law clerks.

Nearly 30 percent of the 159 lawyers who’ve clerked for the current justices since the 2018 term graduated from Yale Law School — more than any other law school. Harvard was No. 2, Chicago was No. 3, Stanford was No. 4 and NYU and Virginia are tied for fifth place.

Still, lawyers from less prestigious schools sometimes appear before the court.

Brnovich is one of three lawyers who graduated from the University of San Diego School of Law to argue before the court since the start of the 2017 term. Graduates of the Pontificia Universidad Católica de Puerto Rico’s Escuela de Derecho, Texas Tech University School of Law, the University of South Dakota’s Knudson School of Law and the University of St. Thomas’s law school have done so, too.

Why it matters

Former clerks point to financial constraints that prevent low-income students from attending the prestigious law schools that provide pathways to Supreme Court clerkships and, later, to arguing before the court.

Travis Crum, an associate professor of law at Washington University in St. Louis, is a first-generation college graduate whose father was a firefighter and whose mother was a secretary at an elementary school. He clerked for Justice Anthony Kennedy and retired Justice John Paul Stevens. While working as a reader for Judge David S. Tatel, who is blind, on the U.S. Court of Appeals for the D.C. Circuit, Crum lived in a group house with seven other people.

“A lot of first-generation college students and lawyers are taking out lots of money in loans and might be in situations where they fear having to take care of relatives in the future,” said Crum, who took on substantial debt to attend Yale Law School. “They don’t have a safety net to fall back on within the family — in fact, they might be their family’s safety net.”

“Students from lower socioeconomic backgrounds just don’t feel like they can take those risks,” he added.

Correction: An earlier version of this item incorrectly said Crum clerked for Tatel. He worked for him as a reader.

Lawmakers, including former Rep. Ander Crenshaw (R-Fla.), a University of Florida law school graduate, have pressed the justices during congressional budget hearings on the lack of educational diversity among clerks. During a 2010 hearing, Crenshaw noted that “a disproportionate share of clerks” came from either Harvard or Yale.

While Justice Clarence Thomas admitted that the justices themselves aren’t educationally diverse, he said each justice has their own hiring process. “I, for one, think that there’re excellent kids all over the country,” he said. “I tend to hire from a very broad pool.”

Some former Supreme Court law clerks said students from the most prestigious law schools make better clerks.   

“I really would trust an A-student at Harvard or Yale more than I would trust an A-student at Emory to be a Supreme Court clerk,” said Sasha Volokh, a Harvard Law School graduate who clerked for Justices Sandra Day O’Connor and Samuel Alito — and who is a law professor at Emory.

“If I were a Supreme Court justice, I would have a hard time justifying choosing people from the lower-ranked schools,” Volokh added. “If you get into Harvard or Yale, go to Harvard or Yale, because that’s going to open all doors.”

On the Hill

Paul Pelosi will have ‘a long recovery process’

House Speaker Nancy Pelosi (D-Calif.) put out a short last night about the status of her husband, Paul, who was attacked early Friday morning by a man with a hammer.

“Paul is making steady  progress on what will be a long recovery process,” Pelosi said. “Our family thanks everyone for their kindness.” 

A “long recovery process” is a less optimistic assessment than what the speaker's office earlier called “a full recovery.” 

Federal and state criminal charges were announced Monday for David DePape, 42, who allegedly broke into Pelosi's home with a hammer.

Here are more details law enforcement officials revealed about the attack per our colleagues Devlin Barrett, Eugene Scott and Holly Bailey:

  • Paul Pelosi, being awakened in the middle of the night by a strange man in his bedroom, demanding to know where his wife was. When Paul Pelosi said she would not be back home for days, DePape allegedly said he would wait.
  • At some point during their confrontation, Paul Pelosi was able to get to a bathroom and call 911, which brought police officers to the scene, the court papers said.
  • After he was taken into custody, DePape said he planned to “hold Nancy hostage and talk to her,” according to the charging papers. “If Nancy were to tell ‘the truth,’ he would let her go, and if she ‘lied’ he was going to break ‘her kneecaps,’” the charging papers said.
  • When the door to the home was opened, the responding officers saw a strange situation: The elderly resident opened the door, but he was simultaneously holding onto a hammer in DePape’s hand, while DePape gripped Paul Pelosi’s arm with his other hand, according to court papers.
  • Officers told the men to drop the hammer, at which point DePape wrested the tool free and struck Paul Pelosi with it in the head, knocking him unconscious, the affidavit said.
  • In a news conference, San Francisco District Attorney Brooke Jenkins released additional details about the attack, including that Paul Pelosi — who was dressed in a “loosefitting pajama top and boxer shorts” — allegedly had first tried to access an elevator which has a phone but was blocked by DePape.

Jenkins said it was clearly a “politically motivated” attack.

As our Hill colleague Paul Kane wrote, these details counter every conspiracy theory about the attack. But that still hasn't stopped elected Republicans and high profile conservatives from spreading them.

The campaign

Early voters lament high prices and disunity, yet vote for opposite sides

Putting the country back together again: “As millions of Americans vote early in midterm elections that are likely to underscore the nation’s deep divisions, there’s little evidence of either the unity that President Biden promised to rekindle in his 2020 campaign or of the permanently ruined nation that former president Donald Trump has warned against,” our colleagues Marc Fisher and Meagan Flynn write.

  • “Rather, many Americans say they feel called to the polls because — despite being exhausted by the cavalcade of bad news and ping-ponging election results, and despite polls showing the widespread unpopularity of Biden, Trump and other leaders of both parties — they still harbor hope that the country can be put back together again.”

The Data

The deciders of the 2022 midterm election, visualized: “No single group of voters holds the key to the midterm elections,” but both parties see White women with college educations as a critical voting bloc, our colleague Dan Balz writes. “Will they stay with Democrats in the way they did four years ago? Will some shift back toward Republicans, as happened in the Virginia governor’s race in 2021? Will many of them choose not to vote, conflicted by their choices or simply out of disinterest or exhaustion with politics?”

The Media

Early reeeads


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