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Analysis | Could Jones be a decisive vote on Trump’s Supreme Court nominee?

via Office of U.S. Senator Doug Jones
Chip Brownlee | The Trace

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Republicans and Democrats in the U.S. Senate are gearing up for what could be a massive confirmation fight over President Donald Trump’s Supreme Court nominee, and Alabama’s junior senator, Doug Jones, in his first year of a short two-year term, will likely find himself right in the middle of it all.

Trump is expected to nominate a new associate justice to the Supreme Court in the coming weeks, following the retirement of the high court’s longtime swing vote, Associate Justice Anthony Kennedy, who will step down on July 31.

When Trump does make his pick for a new justice, he will be sending that nominee to a tightly divided Senate, one with 51 Republican senators, 47 Democratic senators and two independent senators who caucus with Democrats.

And there’s another complicating factor: Sen. John McCain, the Republican from Arizona who is battling an aggressive form of brain cancer,  has been largely absent since December, leaving Republicans with an even slimmer 50-49 majority.

Although Vice President Mike Pence, the president of the Senate, can vote in the case of a tie, Republicans will need the votes of everyone in their caucus to hold on to Kennedy’s seat.

To Republicans’ advantage, the Senate has effectively abandoned its filibuster rule so a 60-vote majority is no longer needed to end debate and a simple majority can confirm a judicial nominee. But a far-right nominee, one who outwardly opposes abortion and other hot-button issues — should Trump choose to go that route — may not have it so easy.

Some Republican senators have shown a willingness to break with their party. Sen. Susan Collins, a moderate Republican from Maine, insinuated Wednesday that she will take a hard look at any nominee who would consider overturning Roe v. Wade, the landmark Supreme Court decision that established the legal right to an abortion in 1973.

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“I view Roe v. Wade as being settled law,” Collins said. “It’s clearly precedent and I always look for judges who respect precedent,” Collins told reporters on Wednesday, according to The New York Times.

Kennedy, during his 30-year tenure on the high court, served as a moderating voice and often sided with more liberal justices on issues like same-sex marriage and abortion rights. His vote halted efforts to overturn Roe v. Wade.

“Over the course of the last 15 or so years, probably going back a little bit further than that, the court has had two main camps, arguably one conservative camp and one liberal camp, and Justice Kennedy has walked right through the middle of that and has effectively had one of the most impactful terms, in my opinion, on the Supreme Court, as a function of procedure,” said University of Alabama Assistant Professor Allen Linken, an expert on the Supreme Court.

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Abortion is likely to be the key issue when Senators do get a nominee. Many conservatives, including those in the Alabama Legislature, are hoping the Court, if it attains a favorable and reliable conservative majority, will take up a case and overturn the right to an abortion.

Republicans in the Alabama Legislature placed a constitutional amendment on November’s general election ballot that, if passed, would effectively declare Alabama an anti-abortion state and preemptively grease the wheels for banning abortion by law. The measure’s supporters said it was necessary to prepare if the Supreme Court tilted to the right.

With Collins’ comments Wednesday, it’s possible she would consider voting against a nominee who appears poised or primed to overturn that precedent. And Sen. Jeff Flake, another Republican from Arizona, said Tuesday — a day before any news of Kennedy’s retirement — that he would block all of Trump’s judicial nominees (there are many waiting to be confirmed to the federal bench) if the Senate doesn’t take a vote to prevent Trump’s new tariffs.

It’s not clear if his promise to stall any nominees would extend as far as a Supreme Court nominee, should the Senate get around to a vote while Flake is still in office.

“If there were a vacancy there? I hadn’t thought of that. I haven’t thought of that,” Flake said Tuesday before Kennedy’s resignation, according to the Washington Post.

If either of those senators went nuclear and split from their party on a Supreme Court confirmation, that could leave Republicans in deep water, searching for votes from centrist Democrats who might back a Trump nominee. Sen. Lisa Murkowski, R-Alaska, is also considered a potential swing vote.

When Associate Justice Neil Gorsuch was confirmed last year, three Democrats voted for him, Sen. Heidi Heitkamp, Sen. Joe Manchin and Sen. Joe Donnelly, who are all up for re-election in competitive races in heavily Republican states. All Republicans voted to confirm Gorsuch.

Even if all three of those Democrats decided to vote with their party and against a Trump nominee, that would still leave a newly elected Democrat from a state that is perhaps even more Republican and more supportive of Trump: Sen. Doug Jones from Alabama.

“Sen. Jones becomes a crucial vote if Republicans can’t keep 51 votes in the Senate or really 50 votes because of the president of the Senate, Vice President Pence,” Linken said.

And Trump’s nominee could decide the ideological tilt of the high court for decades to come, applying even more pressure to a confirmation vote.

“There’s no question that no matter who the president nominates and, assuming that person is confirmed, the court will become more conservative as we see it on some set of issues, even a substantial set of issues,” said University of Alabama Law School Professor Paul Horwitz, a former clerk on the 11th Circuit Court of Appeals and expert in constitutional law.

But Horwitz said it’s unlikely that Republicans would vote against a GOP nominee, though their influence could have some effect.

“Certainly, it’s a closely divided Senate with a couple of senators who have some leverage. And that may affect who gets nominated, although it is difficult to say,” Horwitz said.

Both professors said it was unlikely it would get to that point, though, because Republicans are unlikely to need Jones’ vote.

Jones said during the campaign that he considers abortion a settled view, and he has said nothing to suggest that he would vote for a nominee to the court that would be likely to overturn that precedent.

Months before the election, Jones said he supports a woman’s right to choose what to do with her own body.

“I’m going to stand up for that, and I’m going to make sure that that continues to happen,” he said. “I want to make sure that as we go forward, people have access to contraception, they have access to the abortion that they might need, if that’s what they choose to do.”

And since then, he joined other Democrats, Collins and Murkowski in stopping a bill to ban abortions after 20 weeks. Three other Democrats, Manchin, Donnelly and Sen. Bob Casey, R-Pennsylvania, voted in support of the measure.

Regardless, Jones — should he want to be re-elected in 2020 when his term is up — is stuck in a difficult situation that will require him to balance the desires of his Democratic base and moderate Republicans who he will need to crossover and vote for him in two years.

 

Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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Elections

Prisoners quarantined at formerly closed prison kept in unconstitutional conditions, groups say

Conditions are so bad that inmates have been forced to urinate and defacate on themselves because restrooms are not accessible, the complaint alleges.

Eddie Burkhalter

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The male intake area at an ADOC facility. (VIA ADOC)

The Alabama Department of Corrections is violating the constitutional rights of inmates being quarantined in deplorable conditions in the previously decommissioned Draper prison, several civil rights groups wrote in a letter to the state’s prison commissioner.

The ACLU of Alabama, the Southern Center for Human Rights, Alabama Appleseed and other groups in a letter to Alabama Department of Corrections Commissioner Jeff Dunn on Thursday detail those conditions, which include no indoor toilets or running water, repeated power outages, deprivation of regular showers and the requirement of incarcerated men to urinate in “styrofoam cups and plastic water” bottles.

“These conditions fail to meet the most basic constitutional standards and present a substantial risk of serious harm to people already suffering from a potentially fatal disease,” the letter reads. “We therefore request that you immediately cease using Draper to house and/or quarantine COVID-19 patients, and instead house them in medically appropriate settings in accordance with Eighth Amendment standards.”

The groups note that Draper was closed after the U.S. Department of Justice, during its investigation of violence in Alabama prisons, noted Draper as exceptionally “dangerous and unsanitary” with “open sewage” near the entrance, rat and maggot infestations and “standing sewage water on the floors.”

In October 2017, the Justice Department informed ADOC of the department’s shock at the state of the facility and a month later ADOC’s engineer concluded that Draper was “no longer suitable to house inmates, or to be used as a correctional facility,” the letter states.

ADOC reopened a portion of Draper earlier this year to house incoming inmates from county jails being quarantined amid the COVID-19 pandemic, but the civil rights groups note in the letter that ADOC failed to indicate plans to also use a classroom without bathrooms, running water or adequate medical care at Draper to house COVID-19 patients from other state prisons.

The groups allege in the letter that approximately 15 cots are located in the approximately 500 square feet former classroom, where at any given time between 5 and 15 inmates are being kept. The only restroom facilities the men can use are portable bathrooms outside, and the men have to “bang on the classroom windows to get officers’ attention.”

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“Though officers sometimes escort the men when asked, they decline at other times and fail to maintain a schedule; thus, the men do not have access to bathroom facilities when needed,” the letter reads, adding that the men aren’t allowed to use the outdoor restrooms between 10 p.m. and 6 a.m.

“We have further reason to believe that one man was permitted to use the bathroom only three times during a 13-day quarantine. Another man was not taken to the bathroom until his third day at Draper, while another was forced to urinate on himself on multiple occasions after being denied bathroom access,” according to the letter. “One man suffering from diarrhea was forced to wait hours to use the restroom to defecate. Many others could only relieve themselves into styrofoam cups, plastic bottles, portable urinal containers, or trash cans.”

“They had to hold onto urine-filled bottles for hours at a time until they were allowed to leave the classroom to empty them. It is also our understanding that some men held in these conditions did not receive bottles at all; correctional officers simply told these men that they were ‘out of luck,’” the letter continues.

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The letter also details instances of alleged inadequate medical care, including a man who was sent to a local hospital with heart attack symptoms after not receiving his heart medication for several days.

The groups are also unaware of any Inmates leaving Draper who were tested for COVID-19 before being returned to Elmore and Staton prisons, the letter also states.

“We also have reason to believe that many of the symptomatic men at Staton and Elmore have not reported their symptoms to prison staff for fear of being held at Draper in the deplorable conditions described above,” the letter continues.

APR has learned from several sources in recent weeks, who asked not to be identified because they have loved ones in Alabama prisons and are fearful of retributions for speaking out, that many inmates who have symptoms of COVID-19 aren’t reporting those symptoms to prison staff for fear of being quarantined. Those family members are concerned that the disease is spreading much more broadly in Alabama prisons than is known as a result, putting their loved ones at greater risk of contracting the deadly disease.

Many of the concerns expressed in the letter were first reported by AL.com reported on Sept. 13, which found that access to medical care in Draper is limited and the conditions unsanitary.

In a response to AL.com’s questions for that article, an ADOC spokeswoman wrote that inmates at Draper have access to “medical and mental health care, telephones, law library, mail services, and showers.”

“Please remember — Inmates remanded to our custody have been convicted of a crime and handed a sentence to serve time as determined by a court. The unfortunate reality is that he or she, as a result of the crime committed and subsequent conviction, loses his or her freedoms,” ADOC said in the responses.

“This response is unacceptable as a matter of principle, and inadequate as a matter of law,” the letter from the civil rights group states.

“As ADOC knows, the fact of a criminal conviction does not strip incarcerated people of their rights under the Eighth Amendment, nor does it relieve ADOC of its constitutional obligations to the people in its custody, which are to provide them with ‘humane conditions of confinement,’ ‘adequate food, clothing, shelter, and medical care,’ and ‘reasonable safety,’” the letter continues.

On Sept. 16, ADOC reported that there have been 403 confirmed COVID-19 cases among inmates, 21 deaths of inmates after testing positive for COVID-19, and 375 cases among prison staff. Two prison workers have died from COVID-19, ADOC previously said.

As of Sept. 14, there had been 1,954 inmate tests for coronavirus, out of the approximately 22,000 state inmates, according to ADOC.

ADOC on Sept. 16 said that on Thursday the department was to begin rolling out a plan to provide free COVID-19 tests to ADOC staff and contracted healthcare staff using fixed and mobile testing sites.

“In addition, we will test all inmates in facilities that house large numbers of inmates with high risk factors as an enhancement to our current testing protocols,” ADOC said in a press release.

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Health

Study: Those with COVID twice as likely to have dined in restaurants

“Masks cannot be effectively worn while eating and drinking, whereas shopping and numerous other indoor activities do not preclude mask use,” the study notes. 

Eddie Burkhalter

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(STOCK PHOTO)

A recent study by the Centers for Disease Control and Prevention found that adults who tested positive for COVID-19 were twice as likely to have eaten in restaurants, which builds upon known factors about how the disease is transmitted, experts say, but the study has limitations.

The study surveyed 314 adults in 10 states and found that those who tested positive for COVID-19 were twice as likely to have eaten at restaurants within the previous 14 days. Researchers found that there was no significant difference between those who tested both positive and negative and who said they had gone to gyms, coffee shops, used public transportation or had family gatherings.

“Masks cannot be effectively worn while eating and drinking, whereas shopping and numerous other indoor activities do not preclude mask use,” the study notes.

Dr. Bertha Hidalgo, an epidemiologist and associate professor at UAB’s School of Public Health, told APR on Wednesday that the study lends evidence to what the medical community knows are potential risks for contracting COVID-19, which include being indoors and unmasked, but there are nuances to each of those activities that can either increase or decrease that risk.

The study did not differentiate between indoor and outdoor dining, and infectious disease experts say being outdoors decreases the risk of contracting COVID-19.

“It’s also hard to know what policies are in place where these people were recruited from for this study,” Hidalgo said. “Whether they’re required to be masked or if there’s a decreased capacity in a restaurant.”

Monica Aswani, assistant professor at UAB’s School of Health Professions, said she would be cautious about interpreting the study through a causal lens.

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“People who are willing to dine in restaurants are also likely to engage in other risky behaviors, such as not wearing masks. Since this is a survey, there is not enough evidence to suggest that the source of exposure was restaurants without contact tracing to supplement it,” Aswani said. “Likewise, respondents may have misreported their behaviors, given the sensitive nature of the questions. The authors note this as a limitation and highlight how participants were aware of their Covid-19 test results, which may have influenced how they responded.”

Aswani also noted that the questions about dining did not differentiate between indoor versus outdoor seating, “which represent different levels of risk to exposure.”

“Participants who visited a restaurant on at least one occasion, regardless of the frequency, are also considered similar. Consequently, in the two weeks before they felt ill, someone who dined on a restaurant patio once and someone who ate indoors at five different restaurants are indistinguishable in their data,” Aswani said.

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Hidalgo said that while there are clear limitations to the CDC’s study, the findings do back up what the medical community knows about the transmission of the disease.

“I would very much look at this from the big picture perspective, and say we know that indoor activities are an increased risk for COVID-19. This study lends evidence to that,” Hidalgo said.

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Elections

Alabama Democrats: Tuberville doesn’t have a plan or experience

Brandon Moseley

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U.S. Senate candidate Tommy Tuberville (VIA TUBERVILlE CAMPAIGN)

The Alabama Democratic Party on Wednesday released a statement slamming Republican Senate candidate Tommy Tuberville for not commenting on Hurricane Sally.

Tuberville is challenging U.S. Sen. Doug Jones, D-Alabama, in the Nov. 3 general election.

“Tommy Tuberville said he didn’t have a clue how to address the deadly COVID-19 pandemic, so it isn’t surprising that he hasn’t offered a single word for the Gulf Coast in the face of a life-threatening storm,” said Wade Perry, the executive director of the Alabama Democratic Party. “He doesn’t have a plan or the experience to tackle an actual crisis. Unlike our own U.S. Senator Doug Jones.”

The Jones campaign has seized on the “Tommy Tuberville does not have a clue” narrative, trying to make the argument that Tuberville, a career football coach who has never held a public office before, lacks the experience necessary to represent the people of Alabama in the U.S. Senate.

Jones used that line several times at a Labor Day appearance in Leeds.

“Senator Jones was on the ground in Lee County after devastating tornadoes and worked across party lines to secure emergency relief for farmers and families in the Wiregrass,” Perry said. “He will always be there to help Alabamians navigate a crisis and save lives— he always has, and always will.”

The Tuberville campaign disputed the ADP narrative.

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Hurricane Sally devastated Dauphin Island in Mobile County as well as Gulf Shores, Orange Beach, and Fort Morgan in coastal Baldwin County when it came ashore as a category two hurricane with 105 miles per hour winds.

Sally then inundated South Alabama, West Florida and Georgia with heavy rain, leading to localized flooding. Several roads were closed on Thursday across South Alabama due to flooding including in Troy, Andalusia and Opp.

Almost 200,000 Alabama homes lost power due to the storm. Alabama Power crews are still working to restore power to customers who lost power.

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Jones defeated former Chief Justice Roy Moore in a 2017 special election. This was the only time that a Democratic candidate had won any statewide race in Alabama since 2008.

Jones and his allies led an effort to topple the then-existing leadership of the Alabama Democratic Party in 2019. The new chairman of the Alabama Democratic Party, State Rep. Christopher England, D-Tuscaloosa, is trying to make the case that times have changed and the state has two viable political parties.

Republicans are targeting Jones, a Democratic senator representing a very red state. Democrats are hopeful that they can hold Jones’ seat and take control of the U.S. Senate.

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National

Trump urges Republicans to accept bigger COVID stimulus to get compromise

Brandon Moseley

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(WHITE HOUSE PHOTO)

President Donald Trump reportedly urged congressional Republicans to go for “much higher numbers” in a coronavirus aid bill. The president and his team are trying to end a deadlock over coronavirus economic relief ahead of Congress breaking for the Nov. 3 elections.

House Democrats passed a $3.4 trillion coronavirus aid package in the Heroes Act earlier this summer. Treasury Secretary Steve Mnuchin presented a $1.1 trillion aid package in August, which Democrats rejected.

After the Senate returned from their Labor Day recess, Senate Majority Leader Mitch McConnell, R-Kentucky, brought a $300 billion “skinny” coronavirus aid package up for a vote. No Democrats supported the GOP package.

“Every Senate Democrat just voted against hundreds of billions of dollars of COVID-19 relief,” McConnell said. “They blocked money for schools, testing, vaccines, unemployment insurance, and the Paycheck Protection Program. Their goal is clear: No help for American families before the election.”

Democrats demanded a bigger package.

U.S. Sen. Doug Jones, D-Alabama, told reporters that McConnell’s paired-down bill was a “political stunt” and did far too little for individuals, businesses, schools and local governments.

Democrats continue to insist on a bigger bill and now Trump is pushing Republicans to accept a bigger deal.

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“Go for the much higher numbers, Republicans, it all comes back to the USA anyway (one way or another!)” Trump wrote on Twitter Wednesday.

Speaker of the House Nancy Pelosi, D-California, and Senate Minority Leader Chuck Schumer, D-New York, have expressed optimism this week. Pelosi and Schumer said in a joint statement they were encouraged and hoped White House negotiators would now “meet us halfway.”

A coronavirus relief bill of over $2 trillion is reportedly being discussed, and Republicans are divided on this.

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Some Senators favor passing stimulus and some, including Sen. Rand Paul, R-Kentucky, oppose any stimulus, citing concerns about adding trillions more to the ballooning budget deficit.

Paul was the only Republican to vote against the skinny stimulus because he opposes even that small package.

Sen. John Thune, R-South Dakota, said that the plan should stay in a “realistic” range. “As you go upwards from there ($1 trillion) you start … losing Republican support pretty quickly,” he said.

Thune said there was some Republican interest in the $1.5 trillion package presented this week by the Problem Solvers Caucus, but not in the $500 billion in bailouts for state and local governments.

“So the president has his opinion, we have ours,” said Sen. Ron Johnson, R-Wisconsin, arguing that the package should not be above $300 billion.

But Republican Sen. Lindsey Graham said something needed to be done, although “well below 2 trillion.”

Advocates for businesses and state and local governments impacted by the coronavirus global pandemic say that without more federal aid they were going to have to start laying off people.

Some economists fear that more business closures and layoffs this fall could hurt the economic recovery, especially if there is not a coronavirus vaccine this year.

The Congress has already passed over $3 trillion in coronavirus aid, all of it paid for with deficit spending.

The national debt is $26.8 trillion. Adding another $3 trillion to the debt for another aid package will likely lead to the debt topping $30 trillion in the next six months no matter who is elected in November.

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