Earlier this week, the American public closely followed the Congressional hearings of President Donald Trump’s Supreme Court candidate Amy Coney Barrett. Barrett spent four days answering questions about her background and legal opinions.
To a non-American, this may have been a useless exercise, given that Republicans have a 57-43 majority over the Senate Democrats, so Barrett’s confirmation is sure to pass by.
Historically, the Senate has rarely turned down a presidential supreme court candidate. The last time it did so was in 1987, when the Democratically controlled Senate refused to approve the appointment of Robert H. Bork by Republican President Ronald Regan for his conservative legal advice on key issues from civil rights to abortion.
Since these hearings have a predetermined outcome, they often turn into some kind of political theater. However, this does not mean that they are not important.
One of the most controversial aspects of Barrett’s confirmation hearings was their timing. President Trump decided to push the nomination just days after the death of Supreme Court Justice Ruth Bader Ginsburg in September. The hearings were scheduled just weeks before the US election, amid a public health emergency and COVID-19 outbreaks in the White House and Congress.
Democrats lamented the fact that the Senate was spending time on this confirmation process rather than passing a COVID-19 economic aid package, while putting people at risk by gathering individuals in a room to conduct the hearings. This, many argued, unnecessarily exposed senators and others to possible COVID-19 contamination.
There are two main reasons the Republicans are rushing.
First, the Supreme Court will rule a case over the Affordable Care Act (ACA) – President Barack Obama’s premier domestic political achievement that reformed the health system and expanded health insurance coverage – and both Trump and Republicans are counting on Barrett to help overturn it .
Second, it looks increasingly likely that Democratic challenger Joe Biden will defeat Trump in the upcoming election while Republicans may lose control of the Senate. The consolidation of a conservative majority with the approval of three nominations for the incumbent Republican president by the Supreme Court is a solid victory for the Republican party that could outlast a Democratic-controlled presidency and a Democratic-controlled Congress.
In promoting these rushed hearings, the Republicans are violating their own past practices. When President Obama had the opportunity to appoint a Supreme Court judge ahead of the 2016 presidential election, Senate Republicans refused to hold hearings and insisted that the process be postponed until after the American vote. This time when it is in their political interest to expedite a nomination before the elections, they don’t seem to have any qualms about doing so.
Democrats on the committee use the hearings not only to brief Bennett on important policy issues to rule on as a Supreme Court judge, but also to appeal to voters. Democrats, including Vice Presidential candidate Kamala Harris, used their time to articulate why these hearings are problematic and how they reflect the failed leadership of President Trump and the Republican Party.
Barrett gave little information on how she would decide in American politics today on hot spots like abortion, the Affordable Care Act (Obamacare), gun rights cases, and litigation that could arise in the upcoming presidential election. She was asked about her personal views, which she masterfully failed to answer. However, it has clearly described its legal philosophy known as originalism. When asked to describe this concept, she said the following:
“I interpret the Constitution as law, interpret its text as text and understand that it has the meaning it had at the time people ratified it. So this meaning does not change over time. And it’s not up to me to update it or bring in my own policy views. “
This legal philosophy, adopted by conservative judges, reflects a very narrow view of the rights that derive from the US Constitution. It limits them to what is mentioned in the text and avoids interpretations that could guarantee a variety of rights that are not directly defined or set forth by an unchallenged precedent (known as “super-precedent”).
The U.S. Constitution was drafted in 1787, and the last amendment was added in 1992. It is a living, breathing set of principles of law that more progressive judges interpret more liberally in order to better apply them to modern society and challenges known as non-originalism.
Judges who follow an originalistic legal philosophy are less likely to guarantee, for example, a right to affordable health care or a woman’s right to abortion, and are more likely to reaffirm the rights of gun owners by complying with the provisions of the second amendment to the constitution (the right to gun carry).
Barrett worked for one of the most conservative Supreme Court justices in US history, Antonin Scalia, whom she views as a role model. As a judge at the Federal Court of Appeals, she passed several conservative decisions and as an academic at Notre Dame Law School she expressed her conservative legal philosophy in various publications.
This means that it is very likely that she will support decisions that could set aside precedents such as the 1973 Roe v Wade ruling which found that the constitution protects a woman’s right to abortion.
Barrett’s views on the ACA are also known. She criticized Chief Justice John Robert’s 2012 decision to maintain key parts of the ACA, arguing that he was interpreting the law “beyond its plausible meaning to save the statute.” The Supreme Court agreed to hear the Trump administration-backed lawsuit against the ACA a week after the election. Trump’s other two Supreme Court candidates, Neil Gorsuch and Brett Kavanaugh, will almost certainly vote to overthrow the law.
Although there was initially public opposition to Barrett’s confirmation prior to the election, some American voters appear to be embracing it. Some new polls show that 48 percent of voters want it to be confirmed, 31 don’t, and 21 percent are undecided.
There is little Democrats can do to prevent Barrett’s confirmation, but their use of the hearing to address US voters has potentially given Biden and Democratic candidates a boost. Polls from mid-October show that Biden’s lead over Trump continues to grow.
Three Senate Republicans on the Justice Committee also face major re-election challengers, including the chairman of the committee, Senator Lindsey Graham of South Carolina, Joni Ernst of Iowa, and Thom Tillis of North Carolina. The hearings could affect their chances of re-election.
The hearings also helped mobilize grassroots women’s rights organizations. Over the weekend, thousands protested Barrett’s nomination in Washington, DC and other American cities in all 50 states.
A democratically controlled White House, Senate and House of Representatives would be a strong buffer against a conservative Supreme Court. One thing Democrats can do, at least in theory, is add judges to the Supreme Court to overthrow the Conservative majority. The Constitution does not specify a number of Supreme Court judges. The practice of having nine seats was passed by Congress in 1869 and has not been changed since.
If Democrats control both the House and Senate, they can pass new laws to overturn that decision. Previous attempts to do this have failed because public opinion tends not to support such a move. However, we are living in a new era in which US politics is unpredictable. And as the top Senate Democrat Chuck Schumer said, “Everything is on the table.”
The views expressed in this article are from the author and do not necessarily reflect the editorial stance of Al Jazeera.
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