Pandemic, politics dominate hearing
Amy Coney Barrett faces Senate grilling this week
WASHINGTON – Three weeks before America elects a president amid a pandemic and with Democrats condemning the process, the Senate Judiciary Committee on Monday set about advancing a Supreme Court justice who could serve for decades to come.
The result appeared preordained as Sen. Lindsey Graham, R-S.C., the committee chairman, said at the outset. But over four days, conservative federal appeals court Judge Amy Coney Barrett appears certain to face tough questions in her quest to succeed the late liberal Associate Justice Ruth Bader Ginsburg.
“This is a vacancy that occurred through the tragic loss of a great woman, and we’re going to fill that vacancy with another great woman,” Graham said. And in the end, he acknowledged, “all Republicans will vote yes, and all Democrats will vote no.”
With that vote almost certain next week and the full Republican-con
trolled Senate likely to follow suit before Election Day on Nov. 3, this week’s hearing will be more important for political reasons as millions of Americans already are casting votes for president and Congress.
With that in mind, Democrats decided not to mount personal attacks against Barrett, a 48-year-old Notre Dame Law School professor from Indiana whom President Donald Trump nominated just 16 days ago. She appeared before the panel wearing a black mask, her husband and six of her seven children behind her.
“I chose to accept the nomination because I believe deeply in the rule of law and the place of the Supreme Court in our nation,” Barrett said in remarks that had been released a day earlier. “I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written. And I believe I can serve my country by playing that role.”
That promise of independence is typical of Supreme Court nominees, but it does little to quell political or ideological opposition. Trump’s first two nominees, Associate Justices Neil Gorsuch and Brett Kavanaugh, faced harsh attacks from Democrats.
Gorsuch was confirmed 54-45 only after Republicans changed Senate rules to end the filibuster of high court nominees. Kavanaugh made it to the court by a 50-48 vote after being accused of sexual misconduct decades ago while in high school, a charge he denied.
In Barrett’s case, Democrats steered clear of her devout Catholicism, despite Republicans’ best efforts to draw them into what was a losing battle about faith when she was confirmed to the U.S. Court of Appeals for the 7th Circuit in 2017.
Rather, Democrats criticized Republicans for acting on the nomination in warp speed and with the election just weeks away. In 2016, Republicans blocked President Barack Obama from filling a high court seat eight months before Election Day.
“Senate Republicans have made it crystal clear that rushing a Supreme Court nomination is more important than helping and supporting the American people who are suffering from a deadly pandemic and a devastating economic crisis,” Sen. Kamala Harris, D-Calif., the Democrats’ vice presidential nominee, said in a remote feed from the safety of her office. A children’s book about Ginsburg titled “I Dissent” was prominently displayed beside her.
Even more prominent in the vast Senate hearing room, where seats were placed far apart because of the pandemic, were the blow-up photographs displayed by Democrats of constituents who have benefited from the Affordable Care Act. From 87-year-old Sen. Dianne Feinstein, D-Calif., the ranking Democrat, to Harris, the junior member, they warned that Barrett’s confirmation could doom the health care law.
Doffing their masks to speak, Democrats noted that Trump wants Barrett on the court in time for its consideration of a Republican challenge to the law on Nov. 10, one week after the election. It will be the third time the law has reached the high court in eight years; five votes could eliminate or weaken it.
“In the midst of the pandemic, the Republicans want to strike down a law that 23 million Americans rely on,” said Sen. Dick Durbin, D-Ill., the No. 2 Democrat in the Senate.
Democrats also raised a gamut of hot-button issues that could come before the court in short order, ranging from abortion to gun control to LGBTQ rights. And they urged Barrett, if confirmed, to recuse herself from any challenges involving the presidential election itself that could arise from the expansion of mail-in balloting.
“Your participation, let me be blunt, in any case involving Donald Trump’s election would immediately do explosive and enduring harm to the court’s legitimacy and to your own credibility,” Sen. Richard Blumenthal, D-Conn., said.
But Barrett – who opposes abortion, has ruled in favor of expanded gun rights and has questioned the constitutionality of the Affordable Care Act – pushed back on the theory that judges should strive to “solve every problem or right every wrong in our public life.”
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” she said. “The public should not expect courts to do so, and courts should not try.”
Opposition to the process extended outside the Senate office building where the hearing was held. U.S. Capitol Police arrested close to two dozen people at demonstrations organized by liberal interest groups, most of them for obstructing entrances.
Interspersed with critiques from Democrats, Barrett was portrayed by Republicans as a super-qualified jurist and scholar who is an innocent victim of politically polarized times. They criticized Democrats for making an issue of her faith, even though Democrats steered clear of the topic. No one was more blunt than Sen. Josh Hawley, RMo., who said, “This is an attempt to bring back the days of the religious test.”
Two Republicans who had tested positive for COVID-19 after the White House Rose Garden event Sept. 26 where Barrett was nominated participated in Monday’s hearing. Sen. Thom Tillis of North Carolina did so remotely, but Sen. Mike Lee of Utah was in the hearing room. And Graham, the panel’s chairman who spent most of the day unmasked, said he had last been tested “a week ago Friday,” or Oct. 2, and the test came back negative.
The hearing will continue through two days of questioning Tuesday and Wednesday. After outside witnesses testify Thursday, Graham can ask for a vote, and Democrats can request a one-week delay. The panel’s likely 12-10 vote to move Barrett’s nomination to the Senate floor is anticipated to come on Oct. 22 – 12 days from the election.