WASHINGTON — The Senate begins hearings Monday on the confirmation of Supreme Court nominee Amy Coney Barrett over the Democrats’ objections and during the novel coronavirus pandemic that has spread in Washington and a heated presidential campaign.
Senate Republicans, who have the votes to approve her nomination, are fast-tracking the confirmation process for Barrett, with four or five days of Senate Judiciary Committee hearings and plans for committee approval and a full Senate vote by the end of October.
Democrats accuse Republicans of a hypocritical and rushed process that became unsafe after two of the 12 committee Republicans tested positive for COVID-19. The committee’s chairman, Sen. Lindsey Graham (R-S.C.), said the hearings will go on.
Barrett will appear in person before the committee to deliver her opening statement, though some Democrats and Republicans are expected to participate remotely in a large room with a much sparser audience for health and safety reasons.
Three years ago, the Senate voted 55-43 to approve President Donald Trump’s nomination of Barrett, 48, as a judge to the 7th Circuit Court of Appeals.
Now, as Trump’s third Supreme Court nominee, she will face many of the same members of the Judiciary Committee in a much higher-stakes hearing.
Here are some things to watch for in the hearings this week.
With Barrett’s confirmation almost assured, committee Democrats and Republicans will frame her record, writings and judicial decisions in political terms, some to boost their own chances of reelection and most to help their presidential candidates.
Over the past two weeks, Democrats have asserted that Barrett will vote to strike down the Affordable Care Act and Roe v. Wade, and to diminish the rights of workers and immigrants while aiding corporations and the wealthy — all Democratic campaign issues.
"They are literally jamming a Supreme Court nominee through right before a court case in which they have argued to get rid of the Affordable Care Act," said Sen. Amy Klobuchar (D-Minn.).
Republicans have demanded that Democratic presidential candidate Joe Biden and his running mate Kamala Harris, a member of the Senate Judiciary Committee, declare whether they support "court packing" or other schemes to add their preferred jurists to the Supreme Court should they win.
And Sen. Ted Cruz (R-Texas), a committee member, said Friday on MSNBC that Democrats will oppose any conservative nominee no matter what: "She could be descended from Mount Sinai and carried by winged horses and Senate Democrats would vote no."
Religion and Character
Republicans are pointedly reminding the public that committee Democrats focused on Barrett’s Catholic faith in a hearing on her circuit judge nomination in 2017 and forced an extra session on sexual assault allegations against Justice Brett Kavanaugh in his 2018 hearing.
"Despite previous attacks based on Judge Barrett’s religious faith, I hope Democrats choose not to engage in another character assassination, as they did against Justice Kavanaugh," said Sen. John Cornyn (R-Texas) when Trump announced Barrett’s nomination.
But it’s more likely Republicans than Democrats will bring up those issues.
Nowhere in the official statements by all 10 committee Democrats are the words Catholic, religion or faith. "I have no intention of asking Amy Coney Barrett about her religious faith or any issues concerning religion," Sen. Richard Blumenthal (D-Conn.) told Bloomberg News.
Still, as stories appear about the religious community she has been involved in during college and since then — once holding a position called a "handmaid" — the extent and importance of her beliefs hang over the hearing.
Both sides will press Barrett on a legal doctrine that looms large in the future of Roe v. Wade, the 1973 decision that ruled the Constitution contains a fundamental "right to privacy" that protects a pregnant woman’s choice whether to have an abortion.
Barrett, who has written that abortion is "always immoral" and signed an anti-abortion newspaper ad in 2006, said in her hearing to become a circuit court judge that she would follow all Supreme Court precedent.
But if she joins the Supreme Court, she would not have to follow precedent as a justice, an issue she wrote about in 2013 in an article about "stare decisis" — which is Latin for "to stand by things decided" and means following earlier Supreme Court decisions.
In her hearing three years ago, she explained the Supreme Court has never accepted that it's illegitimate to overrule precedent — a position Republicans who oppose abortion approve and Democrats who support a woman’s choice to have an abortion fear.
Eyes on Harris
When Harris gets her turn to question, she’ll be in the spotlight as much as Barrett.
Harris, a former prosecutor known for her sharp-edged interrogations of Kavanaugh, will have to walk the fine line between pinning down Barrett and maintaining her political image as vice presidential candidate.
The Trump campaign in a statement Friday said Harris won’t be able to hide "her anti-Catholic bigotry" and that she’ll try to score political points for her ticket.
Harris told a Phoenix, Arizona, television reporter on Thursday she’ll ask about "the values that we hold dear," such as the Brown v. Board of Education ruling, and she ruled out asking about religious views: "One’s faith should never be the basis of supporting or rejecting a nominee."
Still, viewers will have to wait to hear what she does ask — with the least seniority among committee Democrats, she takes her turn last.
Barrett’s hearing this week will be unlike any of the others for the six justices confirmed since 2000, coming during an economy struggling to emerge from a shutdown, the continuing breakouts of COVID-19 and a heated presidential campaign.
The hearing will add a pandemic innovation: Some of the senators, Democrats and Republicans, will participate remotely. That includes Sen. Thom Tills (R-N.C.) and possibly Sen. Mike Lee (R-Utah), both of whom are recovering from COVID-19.
"This close to the election so I think you're going to see some fiery statements on either side," said Jessica Anderson, executive director of Heritage Action, a conservative advocacy group. "My only caveat is, I think the vibe is going to be different."
She said problems with remote connections crop up: "Can you hear me? Can you hear me?" she said. "Please mute. Please mute." And Anderson added, "That could disrupt the cadence, it could disrupt the flow, it could disrupt the questions."
And for the first time in years, the public will not be allowed in the hearing room — and so advocates both for and against the nominee will not be present. And that means there will not be the spectacle of chanting protesters being dragged out of the hearing.