Barrett set to meet senators amid pandemic, election
WASHINGTON– The 48- year-old federal judge who could cement a decades-long conservative era at the Supreme Court comes to her confirmation hearing this week facing political, philosophical and public health challenges.
Amy Cone y Barrett of Indiana, a Notre Dame Law School professor for nearly two decades, can expect Democrats to ask why President Donald Trump and Senate Republicans should move her nomination amid a pandemic that has sidelined senators, White House staff and even t he president himself.
She can expect to hear complaints that Republicans are rushing her confirmation at near- record speed just days before a presidential election – and four years after blocking President Barack Obama's electionyear nomination of federal Judge Merrick Garland.
She can expect to be contrasted with the women's
rights pioneer she would succeed, Associate Justice Ruth Bader Ginsburg, in much the same way an even younger conservative nominee, Clarence Thomas, was compared to retiring Associate Justice Thurgood Marshall, a civil rights pioneer, in 1991.
It will be difficult to top the explosiveness of the last such Senate Judiciary Committee hearing in 2018, when Brett Kavanaugh was attacked as a Republican political hack and accused of sexually assaulting a high school class mate decades earli er, which he denied. Kavanaugh eventually was confirmed 50-48.
It will be equally hard to top the partisan machinations of the previous Supreme Court confirmation battle in 2017, when Republicans eliminated the Senate filibuster for high court justices to confirm Neil Gorsuch to the seat Garland was denied. Gorsuch made it to the court on a 54-45 vote.
But when it comes to the future of the court, Barrett' s nomination is far more consequential than those of her predecessors. Gorsuch succeeded fellow conservative Associate Justice Antonin Scalia, for whom Barrett clerked. Kavanaugh replaced Associate Justice Anthony Kennedy, a moderate who most often aligned with the court's conservatives.
As Ginsburg's successor, Barrett – who opposes abortion, favors expanded gun rights and has questioned the constitutionality of the Affordable Care Act – could take the court so far to the right that liberal interest groups are demanding Democrats add more justices if they regain the levers of political power in Washington.
“If she is someone who is more open even than Scalia to re visiting, reviewing, reconsidering, overturning long-settled cases, that could lead to a period of great instability,” Sen. Chris Coons, D-Del., a Judiciary Committee member, said last week.
Trump made clear in the 2016 presidential campaign that he wanted judges who were“pro-life” and who would defend Americans' gun rights under the Second Amendment. He has sought to overturn the Affordable Care Act, Obama's signature legislative achievement, by any means necessary; the high court will hear a new challenge to the health care law in November.
The president also made clear in recent days that he wants Barrett confirmed quickly so she can rule on legal challenges after Election Day. That is sure to lead Democrats on the judiciary committee to call for her to recuse herself from any such cases, a suggestion she is likely to sidestep.
Barrett will have advantages her recent predecessors in the committee's hot seat did not. Because of the COVID-19 pandemic, the public will not be admitted; in 2018, #MeToo activists and others stood and shouted periodically from the back of the room, disrupting the four-day hearing.
In addition, Democrats were burned once in 2017 when they confronted Barrett with questions about her deep Catholic faith and its influence on her jurisprudence. She proved to be a Teflon nominee in that regard, and they are unlikely to try that failed tactic again.
Gorsuch and Kavanaugh
Barrett is Trump's third Supreme Court nominee, and each time he has sought to move the court further to the right, making for bitterly contested confirmation hearings.
Gorsuch came before the committee at age 49 in March 2017. By then, it was more than 400 days since Scalia's death,a year since Obama's failed nomination of Garland, and seven weeks since Trump introduced G or such in the East Room of the White House.
A federal judge on the U.S. Court of Appeals for the 10th Circuit, based in Denver, for more than a decade, Gorsuch inundated the panel with 175,000 pages of records, then avoided controversial subjects and skated through the process. Still, Democrats used the power of the minority to block the required 60-vote threshold, forcing Republicans to change Senate rules and win confirmation by a simple majority.
It got worse in 2018. Kavanaugh, a powerful judge on the U.S. Court of Appeals for the District of Columbia Circuit for 12 years, arrived with a paper trail too voluminous for the panel to pile through between his July nomination and the start of the Supreme Court's term in October.
Republicans released more than 400,000 pages of documents but concealed much from Kavanaugh's time working for President George W. Bush as deputy White House counsel and staff secretary. After the customary four-day hearing concluded, Kavanaugh faced accusations of sexual misconduct as a teenager in the 1980s that required an additional hearing and nearly killed the nomination.
Barrett likely will face an easier time on a personal level because of her gender and demeanor, and because she bested Democrats in the debate over her religious convictions three years ago. But she can't expect Democrats' votes, either in committee or the full Senate, because of the dramatic change she would deliver, the rush to confirm her before the election and Republicans' 2016 actions.
What she is sure to do is dodge Democrats' questions about her views on issues that could come before the court. That's a common strategy of nominees dating back at least as far as Ginsburg, who in 1993 insisted on offering “no forecasts, no hints.” She was confirmed96-3; her predecessors, Scalia and Kennedy, were unanimous.
Things were different in 1991, however, when President George H.W. Bush's nomination of Thomas to fill Marshall's seat turned into what Thomas called a“hightech lynching .” He was accused of sexual harassment by a former employee, Anita Hill, and ultimately survived by a narrow 52-48 vote.
Philosophy `on the table'
Conservatives spearheading Barrett' s nomination don't expect her opponents to attack her personally, but they anticipate a focus on her judicial philosophy – one that puts the words of the Constitution and federal laws before the sanctity of high court precedents.
Barrett is prepared for that. At Notre Dame last year, she said a nominee “can't answer about specific cases, but questions about judicial philosophy should be on the table.... You have a right to know what yardstick you're using to make those decisions.”
Here are some of the lines of attack Democrats likely will mount against Barrett:
• Abortion: Barrett has written that Supreme Court precedents are not sacrosanct, which liberals have interpreted as a threat to the 1973 Roev.Wa de decision legalizing abortion nationwide. As a law professor in 2006, she signed an anti-abortion letter that accompanied a January 2006 newspaper ad calling for “an end to the barbaric legacy of
Roe v. Wade.”
In a 2016 talk at Jacksonville University, she said the right to abortion may be safe but that the Supreme Court could uphold further restrictions. On the appeals court, she signed a dissent indicating she would have reheard Indiana's defense of a law banning abortions based on sex, race or disability.
• Health care: Barrett wrote in 2017 that Chief Justice John Robertspushed the Affordable Care Act beyond its plausible meaning in order to save it. Roberts interpreted as a tax the law's penalty on those who don't buy insurance, allowing the court to uphold the constitutionality of the law.
With a third major challenge set to be heard by the justices the week after the election, former Vice President Joe Biden and Democrats have made the health care law their first line of attack against Barrett's confirmation.
“Literally in the midst of a public health pandemic, when over 210,000 people have died ... Donald Trump is in court right now trying to get rid of the Affordable Care Act,” Sen. Kamala Harris said duringlast week's debate with Vice President Mike Pence.
• Gun control: Barrett dissented when the appeals court upheld a decision restricting the Second Amendment rights of a felon convicted of mail fraud. She said nonviolent offenders should not lose their constitutional right to firearms possession. In her committee questionnaire, she rated the dissent as her most important opinion.
Sen. Richard Blumenthal, D-Conn ., a Judiciary Committee member whose state endured the 2012 mass shooting at Sandy Hook Elementary School that left 26 dead, has promised to make gun control an issue at the hearing.
• LGBTQ rights: In a 2016 speech, Barrett implied that same-sex marriage was an issue for state legislatures to decide rather than the courts. That was a year after the Supreme Court ruled 5-4 that states cannot ban gays and lesbians from marrying.
“What we're talking about for the future of the court, it's really a `who decides the question?'” she said.
• Voting rights: Just as Gorsuch was made to answer for Trump's criticism of federal court judges in 2017, Barrett likely will be asked about the president's expressed desire to have her rule on post-election challenges. She's almost sure to be asked if she would recuse herself from those cases.