Senate Judiciary Chairman Lindsey Graham (R-S.C.) warned of a “long, contentious week” of confirmation hearings for Judge Amy Coney Barrett to the Supreme Court, but pledged to try to deliver a fair process as Republicans aim to sprint President Trump’s nominee to the court by election day.
“This is probably not about persuading each other unless something really dramatic happens,” Graham said, addressing the senators in the hearing room and those watching remotely. “All the Republicans will vote yes and all the Democrats will vote no,” he predicted.
Graham defended Republicans’ decision to move the nomination so close to the November election following the death of Justice Ruth Bader Ginsburg. Graham previously promised twice that he would not fill a Supreme Court vacancy if it occurred in an election year. Those assurances came after Republicans in 2016 blocked President Obama from filling a vacancy left by the death of Justice Antonin Scalia, saying it was too close to the election.
“Republicans should honor this word,” said Sen. Dianne Feinstein (D-Calif.) of Graham’s promise, “and let the American people be heard. Simply put, I believe we should not be moving forward on this nomination. Not until the election is ended and the next president has taken office.”
Republicans appear to have the votes to confirm Barrett just days before the election.
“There is nothing unconstitutional about this process,” Graham said.
Democrats are pinning their strategy to block the nomination on tying Barrett to the possible elimination of the Affordable Care Act. The fate of the law will be decided by a Supreme Court case to be heard shortly after the election.
“We can’t afford to back to those days when Americans were denied coverage,” Feinstein said, pointing to past comments by Barrett about problems with the 2010 law.
Republicans view Barrett’s nomination as a rare opportunity to create a 6-3 conservative Supreme Court majority as well as energize voters to turn out at the ballot box for the president and Senate Republicans in increasingly difficult races.
Two Senate Republicans have voiced opposition to confirming a nominee so close to the election after Republicans blocked President Obama’s pick to the Supreme Court, Merrick Garland, after Scalia died in February 2016.
Barrett, a 7th Circuit Court of Appeals judge and former professor at the University of Notre Dame, plans to tell the committee that “policy decisions and value judgments” should be made by elected officials, not the courts, according to her prepared remarks.
Her opening statement, released Sunday, emphasizes a respect for precedent and settled law, and a view that the courts are “not designed to solve every problem or right every wrong in our public life.”
The tension around Barrett’s confirmation hearing has only increased in the wake of two Judiciary Committee Republicans coming down with COVID-19. Both senators could have caught it at the White House Rose Garden event in which Barrett was publicly announced as the nominee. Democrats demanded that all senators and staff in the hearing room this week take a COVID-19 test before proceeding, but Republicans balked.
The pandemic has changed the process dramatically. Public access to the hearing room has been eliminated, forcing protesters to move outside the Senate office buildings, outside of earshot of lawmakers. Staff and media access has been sharply curtailed.
Barrett, as well as Graham and the top Democrat on the committee, Feinstein, were physically present, but senators will have the option of attending virtually. Sen. Kamala Harris (D-Calif.), the party’s vice presidential nominee, will be attending virtually, which could make it more challenging to have one of the standout moments she has had in previous confirmation hearings. Other senators are expected to appear virtually in the first day or two of the hearing and later appear in person.
Democrats have sharpened their offensive strategy around framing Barrett as a lethal threat to the Affordable Care Act and abortion rights. They will also focus on what they call the illegitimacy of Barrett’s nomination.
“We have to recognize we represent the Democratic Party on the eve of an election,” said Sen. Sheldon Whitehouse (D-R.I.), calling for an aggressive response from Democrats on the panel this week while still conveying the “decency that Joe Biden represents.”
“We can be very, very aggressive about calling out what’s going on behind the scenes,” he said, “calling out our colleagues’ flagrant 180[-degree turn]s, putting the spotlight on the big interests that are trying to capture and control our United States Supreme Court. I think all of that can be done with great vigor and plenty of factual support.”
Republicans are eager to get into a scuffle over Barrett’s Catholic faith. Feinstein in 2017 told Barrett that the “dogma lives loudly within you,” a remark that Republicans said was part of a religious litmus test Democrats wanted to impose on judicial nominees. Democrats hope to steer clear of a repeat performance.
Republicans are also expected to shine light on the support among some Democrats to add seats to the Supreme Court next year in retribution for Barrett’s confirmation, an idea that Joe Biden and Harris have refused to address directly.
Although even Democrats admit Barrett’s confirmation is expected, absent a bombshell, the electoral stakes are significant. Conservatives who were initially skeptical of Trump in 2016 eventually supported his nomination in large part because of his opposition to abortion and his pledge to appoint “pro-life” judges to the courts. Republicans are hoping that a Senate vote on confirmation — expected the week prior to the election — will remind GOP voters of the power of the presidency.
Graham is counting on the confirmation to energize conservative voters in South Carolina, where he is facing an increasingly difficult reelection race. Several other Republicans in difficult reelection races will get a shot at a viral moment, too, including Sens. Joni Ernst of Iowa, Thom Tillis of North Carolina and John Cornyn of Texas.
Democrats are expected to spend significant time on what Barrett’s confirmation would mean for the popular 2010 healthcare law.
In an essay, Barrett criticized Chief Justice John G. Roberts’ 2012 opinion upholding the individual mandate and entire law. She wrote that he pushed the law “beyond its plausible meaning to save the statute.”
She was also critical of a 2015 healthcare case, King vs. Burwell. That challenge was widely viewed by legal experts as the weaker of the first two ACA lawsuits to land at the Supreme Court. But Barrett said the dissent in the King case had “the better of the legal argument.”
There are signs, however, that Barrett wouldn’t be ready to strike down the law. She participated in a moot court event on a major pending challenge to the ACA at William & Mary Law School just one week before Ruth Bader Ginsburg died. Individual votes of Barrett and other participants on the eight-judge panel were not disclosed, but none ruled in favor of the GOP argument that the entire law should be invalidated.
Democrats say Barrett is the culmination of Trump’s campaign pledge to scale back abortion rights and to put “pro-life” justices on the Supreme Court.
As an appellate judge in 2018, Barrett signed onto an opinion that suggested the government could ban abortion based on a woman’s reason for having one.
At play in that case was an Indiana law that banned abortion in cases of a fetal anomaly or the gender of the fetus. The argument Barrett signed onto reasoned that the ban could be valid because Supreme Court precedent hadn’t considered what it called an “anti-eugenics” law. “Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay” prior Supreme Court rulings, they wrote.
The Supreme Court later declined, without dissent, to hear an appeal involving that part of the Indiana law, leaving in place a lower court order that struck down the abortion restrictions as unconstitutional.
Barrett also signed her name to a 2006 ad placed by a local Indiana group that called for an end to the “barbaric legacy” of the court’s Roe vs. Wade decision. Barrett did not turn over to the committee the ad or any associated paperwork, which Democrats on the committee plan to ask her about.
This story originally appeared in Los Angeles Times.