A deeply divided Senate judicial committee will open four days of controversial hearings Monday to confirm Judge Amy Coney Barrett, President Trump’s Supreme Court nominee, to draw lines of battle that could repeat themselves through the election.
The Democrats will be ready to go on the offensive, portraying Judge Barrett’s nomination as an election-season takeover by Trump and the Republicans. They will characterize her as a conservative ideologist who would repeal the Affordable Care Act, invalidate abortion rights, and side with the president in litigation arising from the November 3rd election.
Republicans will try to deflect these allegations and draw attention to Judge Barrett’s excellent résumé and compelling personal story. But their main goal is speed – to get the confirmation before election day – and it seems they have the votes to put them in and cement a conservative 6-3 majority in the field before the end of October.
The hearing on Monday starts at 9:00 a.m. and is expected to take up most of the day as each member of the Judiciary Committee has 10 minutes to make an opening statement. Judge Barrett will be the last to speak and is expected to make a brief, mostly biographical, statement before asking questions later in the week.
Here’s what you can expect:
Republicans and Democrats will battle over Judge Barrett’s definition.
Although the contests for candidates for the Supreme Court have grown fierce in recent years, no modern confirmation struggle has come this close to a major presidential election. This competition and the race for control of the Senate will be omnipresent in the hearings and shape the strategies of both parties.
Republicans lagging behind in the polls hope to use the affirmation battle to spark excitement in their base, but also to draw back independent voters, especially women, who are leaving the party in droves. To that end, they plan to largely circumvent the political implications of the court’s bias in favor of Judge Barrett’s personal story by highlighting her legal expertise as an Appeals Court judge and law professor of Notre Dame and her experience as a working mother of seven.
They also want to try to get the Democrats to question Judge Barrett’s impartiality based on her Catholic faith, as they did during a 2017 hearing on her nomination for a seat on the appeals court. Republicans believe that if the Democrats pull the bait, they could spark a political backlash, as motivated their grassroots base during the 2018 affirmation battle for justice Brett M. Kavanaugh.
Democrats will take the opposite approach. They will seek to alert Republicans to what Judge Barrett’s endorsement could mean to a number of popular policies and major campaigning issues such as the health bill, abortion rights, and same-sex marriages. You will refer to Judge Barrett’s file to argue that if upheld it could undermine all three.
Judge Barrett will highlight her biography and the influence of Justice Antonin Scalia.
At the end of the day, Judge Barrett will have the opportunity to re-introduce herself without interruption from partisan fighting, and she intends to highlight her commitment to the family and the legal philosophy that Antonin Scalia, the judiciary who died in 2016, is for and for which she has worked.
After the White House opening speeches on Sunday, Judge Barrett plans to spend a lot of time talking about her love for the family – describing each of her seven children individually – through her upbringing as a Catholic in New Orleans and her experiences as a student and employee then law professor at Notre Dame. She will specifically pay tribute to two women – Judges Sandra Day O’Connor and Ruth Bader Ginsburg – who broke the glass ceiling of the Supreme Court.
“I was nominated to take Justice Ginsburg’s seat, but no one will ever take your place,” she says. “I will forever be grateful for the path she marked and for the life she led.”
But her legal philosophy could not be more opposed to that of the woman whose seat she wants to occupy. Like Barrett Scalia, Judge Barrett is described as a textualist and an originalist. That is, she prefers to interpret the simple words of a law about the intent of the legislature and to read the constitution based on the understanding of its drafters.
“Courts are not designed to solve every problem or correct every injustice in our public life,” says Judge Barrett. “Government policy decisions and value judgments must be made by the branches of policy that are elected and accountable to the people. The public should not expect courts to do this, and courts should not try. “
The coronavirus pandemic will affect the process.
Judge Barrett’s confirmatory hearing will look unlike any other in modern history thanks to the coronavirus pandemic. Republicans insist on moving forward despite a virus outbreak in Washington apparently related to the crowded White House ceremony two weeks ago where Mr Trump introduced Judge Barrett as his candidate. The president and most of the other participants in the meeting were maskless. Mr Trump has since tested positive for the virus, as have several other guests.
At least two Republican Senators on the Justice Committee, Mike Lee from Utah and Thom Tillis from North Carolina, also tested positive after attending the event. They are expected to attend the hearings, which will be chaired by Senator Lindsey Graham of South Carolina, the chairman of the judiciary committee, who has refused to be retested. Democrats called for a postponement but were turned down.
Part of the trial will be videotaped so senators who may be ill or worried about an infection can attend remotely. No members of the public – including demonstrators whose style of confrontation sets the tone for other confirmation battles – are allowed in the lecture hall, which is sparsely populated with senators and spectators.
Should more Republican senators fall ill, it could make Judge Barrett’s chances of confirmation more difficult. With two party members, Senators Susan Collins from Maine and Lisa Murkowski from Alaska, who have already refused to act before election day, Republicans who control the Senate by a majority of 53-47 can afford just one vote to lose.
What happens next?
After Monday’s opening speeches, the Senators will dive into several longer rounds of interrogation with Judge Barrett on Tuesday and Wednesday. While the format will be different – and there might be some surprising elements – you shouldn’t learn much about Judge Barrett’s specific legal views on the most politically sensitive matters that could come to court. As with previous nominees, she is expected to refuse to answer questions that could affect her ability to be impartial in future cases.
The committee will meet again Thursday to hear from a group of outside witnesses testifying in favor of and against Judge Barrett’s confirmation. After that, it is immediately considered whether a confirmation should be recommended. The debate will be fierce and partisan, but under the rules, Democrats will insist that the panel wait a week to vote on their nomination.
As of now, the Judiciary Committee plans to meet again on October 22nd to approve the nomination. If all the board members were present, Republicans would have a clear majority and would easily win the vote. However, if a Republican legislature couldn’t participate, it could quickly stall.
If approved, the nomination would then go to the entire Senate for review. Kentucky Republican Senator and Majority Leader Mitch McConnell has not said when he will schedule a final vote, but it is expected to take place early the week of October 26th, in time for Senators to campaign for a final week can run home before the election.
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