October 12, 2020 11:06:38 am
The Senate on Monday will dive into an extraordinary week of Supreme Court confirmation hearings for Judge Amy Coney Barrett, with Republicans and Democrats offering two starkly divergent portraits of a nominee who would tilt the court decisively to the right.
Just 22 days before a bitterly contested election, Republicans who are behind in the polls are racing to confirm Barrett and cement a 6-3 conservative majority on the nation’s highest court that would long outlast President Donald Trump’s tenure, even if he were reelected. In need of a last-ditch campaign reset, they plan to largely eschew the implications of the court’s rightward tilt, instead portraying Barrett as an apolitical and accomplished working mother of seven in an appeal to moderate voters, especially women.
Democrats are planning the opposite approach. They will brush past Barrett’s biography and qualifications and focus instead on legal writings that suggest she is an ideologue with a far-right political agenda, arguing that she would overturn the Affordable Care Act, roll back abortion rights and favor Trump in any election-related legal challenge that might arise from the balloting on Nov. 3.
The emerging strategies promise to turn four days of nationally televised proceedings into a bruising affair, even by the modern standards of recent bitter Supreme Court confirmation battles. They also reflect a reality that both parties have accepted: With Republicans largely united in her favor, Democrats are powerless to prevent Barrett, an appeals court judge in Chicago and Notre Dame law professor, from ascending to the Supreme Court. The real fight is to influence Election Day.
“What the American people need to know right now is the Republican Party is much more interested in putting this person on the court so she can take away health care from millions of people than actually helping them,” said Sen. Mazie K. Hirono, D-Hawaii. Democrats’ goal, she added, was for voters to “take that understanding to the polls.”
The political implications of proceeding will be hard to miss. Less than a week after the vice-presidential debate, Sen. Kamala Harris of California, the running mate of former Vice President Joe Biden, the Democratic candidate, plans to step off the campaign trail to reclaim her place on the Senate Judiciary Committee. She will appear at the hearings remotely as a pandemic precaution. Four endangered Republicans on the committee, including the chairman, Sen. Lindsey Graham of South Carolina, will be jockeying for the attention of cable news and voters.
“It is energizing voters in Iowa,” Sen. Joni Ernst of Iowa, one of the vulnerable Republicans, told reporters on Sunday in Sioux City, where she was campaigning at Harley-Davidson stores on a motorcycle trip across the state. “They really do want to see someone that will uphold our Constitution, and that’s the only litmus test I have.”
As if a Supreme Court confirmation fight three weeks before Election Day were not enough, Republicans are also insisting on proceeding during a coronavirus outbreak in Washington that appears to be linked to the crowded White House ceremony two weeks ago, where Trump introduced Barrett as his nominee. The president and most other attendees at the gathering were maskless. Trump has since tested positive for the virus, as have several other guests.
At least two Republican senators on the Judiciary Committee, Mike Lee of Utah and Thom Tillis of North Carolina, also tested positive after attending the event. They are expected to participate in the hearings, as is Graham, who has refused to be retested for the virus. Democrats called for a postponement but were rebuffed.
The result will be a hearing that could look like eerie calm in the middle of a political storm. It will play out partially by video to allow senators who may be sick or worried about infection to participate remotely. No members of the public — including protesters whose confrontational style set the tone for other confirmation fights — will be allowed in the hearing room, which will be sparsely populated with senators and spectators.
At 48, Barrett would be the youngest Supreme Court justice since Clarence Thomas joined the bench in 1991, and she would bring with her the promise of shaping American law for a generation. She is in many ways the polar opposite of Justice Ruth Bader Ginsburg, the leader of the court’s liberal wing whose death last month allowed Trump to nominate a third justice. Barrett’s confirmation could usher in a string of decisions undoing much of what Ginsburg fought for.
Like her mentor Justice Antonin Scalia, Barrett is considered a textualist and originalist, preferring to interpret the plain words of a legal statute over the intent of the legislature and to read the Constitution based on the understanding of its framers. In academic writing and on the bench, that has more often than not led her to archconservative positions.
“Courts are not designed to solve every problem or right every wrong in our public life,” Barrett plans to say on Monday, according to a copy of her opening statement. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”
If tradition prevails, the public will learn very little new information about her legal views on some of the most divisive issues that are likely to come before the court. For decades now, nominees in Barrett’s position have steadfastly refused to comment in any way that might clarify how they would rule from the bench.
Democrats are eager to fill in the gaps.
They immediately and unanimously staked out opposition to filling the seat after Ginsburg’s death and have accused Republicans of hypocrisy for moving ahead after refusing to consider President Barack Obama’s Supreme Court nominee in 2016 because it was an election year.
“No disrespect to her as a judge, legal scholar or a person; we shouldn’t be having this hearing,” said Sen. Chris Coons, D-Del. “This is a Hail Mary pass to jam someone in.”
But when Trump named Barrett, a favorite of social conservatives who is a star among his base, Democrats quickly agreed to center their attacks around the risk she posed to the Affordable Care Act. Defending the law against Republican attempts to undermine it was a potent issue for Democrats in the 2018 midterm elections, and with the Supreme Court preparing to hear a challenge to the health care law backed by the Trump administration the week after the election, they are hoping to use the issue again to energize voters across the political spectrum.
Democrats planned to point to Barrett’s legal writings and commentary casting doubt on earlier Supreme Court decisions upholding the law.
They were also preparing to argue that her appeals court rulings, judicial philosophy and statements about Roe v. Wade, which enshrined a national right to abortion, suggested that she would be hostile to it. Democrats were expected to cite an advertisement that Barrett signed in 2006 that called for the reversal of the decision.
On Sunday, Sen. Chuck Schumer of New York, the Democratic leader, called on Barrett to formally recuse herself from the Affordable Care Act case and any involving a legal challenge to the election. Democrats planned to issue those demands directly to Barrett during the hearing.
Republicans hoped to steer the debate away from upending the health law and invalidating abortion rights toward more politically favorable ground. Those issues may excite the Republican base, but party strategists and senators privately concede they are dangerous ground in an election where women may be the crucial swing bloc.
“She is incredibly accomplished, thoughtful, extremely capable, but also a real person,” Sen. Josh Hawley, R-Mo., said of Barrett. “That is going to be something that a lot of people can relate to, a lot of working families.”
Republicans were also expected to try to bait Democrats into impugning Barrett’s Catholic faith, in hopes of stirring up a backlash reminiscent to the confirmation of Justice Brett Kavanaugh in 2018, which electrified the Republican base before the midterm elections.
During Barrett’s confirmation hearing in 2017 for her appeals court post, Democrats aggressively questioned whether she could set aside her personal views on abortion and same-sex marriage as a judge. A declaration by Sen. Dianne Feinstein of California, the top Democrat on the panel, that “the dogma lives loudly within you” quickly became a rallying cry on the right.
“You’ve seen many on the left try to, in essence, resurrect a religious test for office,” Hawley said. “That is a huge, huge issue.”
Democrats insist they have no such intention and argue that Republicans are twisting what was a legitimate line of questioning to manufacture a scandal.
“Her religion is immaterial,” Hirono said. “I’ve said that I don’t know how many times. I don’t have any questions based on her religion.”
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