San Francisco Chronicle - (Sunday)
Harris face pressure on court pick
WASHINGTON — When Judge Amy Coney Barrett is seated Monday for a Senate hearing on her nomination for a lifetime seat on the Supreme Court, California’s senators will each be facing one of the biggest moments of their careers along with her.
But the pressures on Sens. Dianne Feinstein and Kamala Harris will be different. Feinstein, 87, is the top Democrat on the Judiciary Committee and facing criticism from progressives that she is not equipped to deliver the leadership the party needs from that position.
Harris, 55, is the most junior Democrat on the committee and one of its most skilled questioners. But she is also the party’s nominee for vice president, representing a presidential candidate in Joe Biden who aligns ideologically more with Feinstein and being closely watched by swing voters casting ballots in November’s election.
Both will be facing a tough reality for DemoFeinstein,
crats: Nothing they can do will stop Senate Republicans from confirming President Trump’s nominee to fill the seat of the late Justice Ruth Bader Ginsburg, probably securing a 63 conservative majority on the court for years.
The four days of hearings will also play out in the midst of the coronavirus pandemic, which has reached the heart of the GOP, including Trump, several of his closest aides and two Republicans on the Judiciary Committee itself.
Democrats have made health care their guiding focus in opposing Barrett. They argue that Republicans are pushing to confirm her before election day so that, on Nov. 10, she will be seated for arguments in a case that will decide whether former President Barack Obama’s signature health care law is unconstitutional. They believe that voters will be infuriated by a potential risk to their health care, especially during the pandemic.
“Ten years after the court upheld the ( Affordable Care Act) — and after more than 70 votes to repeal it — President Trump and his allies again seek to use the courts to do what they have failed to do in the Congress,” Feinstein said in a Judiciary Committee hearing this month.
Harris and Biden have been highlighting the same theme on the campaign trail. In a speech in North Carolina, Harris argued that striking down the Affordable Care Act would be especially devastating for women, who under the current law cannot be denied coverage or charged more for reproductive care.
“This relentless obsession with overturning the Affordable Care Act — driven entirely by a blind rage toward President Obama — is happening at a moment when our country is suffering through the ravages of a pandemic that has claimed more than 200,000 lives,” Harris said.
Democrats are hoping to use that focus, and the likelihood that a conservative court would overturn the Roe vs. Wade case, which legalized abortion, to inflict political pain on Republican colleagues in an election year.
Some members of the committee, including GOP Sens. Josh Hawley of Missouri and Ted Cruz of Texas, have openly said they believe Barrett would vote to do away with Roe and the Affordable Care Act. But other Republicans, including Sens. John Cornyn of Texas, Thom Tillis of North Carolina, Joni Ernst of Iowa and committee Chairman Lindsey Graham of South Carolina, are in closer than expected reelection races and are more cautious with such assumptions, hoping to avoid alienating swing suburban voters.
But the political path will not be easy for Democrats, either.
Feinstein has already publicly faltered in highstakes hearings, including the most recent Supreme Court fight over Justice Brett Kavanaugh and the 2017 hearing to confirm Barrett to the Seventh U. S. Circuit Court of Appeals, when she explicitly brought the nominee’s Catholic faith into the proceedings.
Feinstein told Barrett at that hearing, “Whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.” The comment drew rebuke as antiCatholic and gave conservatives a rallying cry they have returned to ahead of Barrett’s Supreme Court confirmation hearing.
Progressives were pointing to Feinstein’s handling of the Kavanaugh hearing to argue against her continued leadership of committee Democrats even before Ginsburg’s death. They say her affinity for bipartisanship and Senate custom keeps Democrats from waging allout war on Republican judicial nominees.
Brian Fallon, leader of Demand Justice, a group that pushes the left to be more aggressive on judgeships and the courts, criticized committee members including Feinstein who held phone calls with Barrett, saying Democrats should be fighting harder to make the case that Graham and Senate Majority Leader Mitch McConnell of Kentucky are improperly rushing through a nominee in the midst of an election.
“I wish they’d show a little bit more intensity. I wish they would lean more into the idea of this being illegitimate,” Fallon said. “I wish they would, in everything they do, seek to hang an asterisk around Amy Coney Barrett’s nomination — and that means the hearings can’t be approached as business as usual.”
Fallon pointed to two moments in the Kavanaugh hearings that offered a template for how Democrats should handle Barrett’s confirmation. One was from Graham. When Kavanaugh was floundering after the testimony of Palo Alto University Professor Christine Blasey Ford alleging he sexually assaulted her in high school, Graham delivered a fiery, grievance-filled soliloquy that put Republicans on offense and changed the momentum of the hearing.
The other one was from Harris, who interrupted the chairman’s opening remarks to loudly protest that senators had not been given enough time to review a stack of documents they had received only the night before. It was a moment that ignited her colleagues, Fallon said, and should not have had to come from the farthest end of the dais, where the junior members sit.
“Maybe her political instincts are the ones that ought to be followed, instead of the excessive caution and the oldschool approach of somebody like Dianne Feinstein,” Fallon said. “Just going through the motions of asking questions drafted for them by staff is not enough. They need to put Lindsey Graham and Mitch McConnell on trial here.”
Feinstein has also been under scrutiny since a Politico piece aired whispered concerns from unnamed colleagues about her fitness for such a highstakes proceeding, as the senior senator has noticeably slowed in recent years and sometimes appears confused by reporters’ questions in the hallways of the Capitol. She needed to be corrected by staff during a tense moment in the Kavanaugh hearings about her handling of the Blasey Ford allegations.
But publicly, her colleagues have expressed confidence in her abilities and say progressives have unrealistic ideas about what Democrats are able to do in a GOPcontrolled Senate.
Feinstein and Senate Democratic leader Chuck Schumer of New York have brought on roughly a dozen extra staffers to help with the hearing, including communications aides and lawyers, and held daily media calls last week highlighting problems with Barrett’s record. Feinstein has not joined any of the calls, which have featured other senior Democrats, but she has put out statements voicing similar themes.
Fallon acknowledges that McConnell has the votes to confirm Barrett regardless of what Democrats do, but argues that a passionate response could still sway public opinion.
In Friday’s media call, Oregon Sen. Ron Wyden, who is not on the committee, said his Democratic colleagues needed to guard against a sense of resignation.
“The question of political change is really what this is all about. And I’m of the view that political change is grassroots up, as people really come to see what’s at stake,” Wyden said. “I want to make clear that at the grassroots, people are not putting up the white flag of surrender.”