When Republicans committed to filling the late Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court before the November election, they vowed to get it done no matter what got in their way.
With hearings in the Senate Judiciary Committee set to begin on Monday, just three weeks after Ginsburg’s death, it’s clear that Republicans didn’t anticipate every obstacle. And it’s even clearer that nothing was ever going to stop them from installing another conservative in the highest court of the land.
President Trump and Senate Republicans weren’t stopped by the COVID-19 outbreak within the highest ranks of the party—sparked by their White House event to announce Judge Amy Coney Barrett’s nomination—that infected the president, three GOP senators, and seemingly the entire White House.
Such a grim development might have derailed the tight timeline of Barrett’s confirmation, which will be handled by a committee full of octogenarians and septuagenarians. Not for this bunch, which treated it as a minor inconvenience. “If we have to go in and vote,” said a COVID-stricken Sen. Ron Johnson (R-WI), “I'll go in a moon suit.”
Republicans, too, weren’t stopped by their past standard that Supreme Court justices shouldn’t be confirmed in an election year, applied to block Barack Obama’s nomination of Merrick Garland in 2016. Any trepidation within the party about backtracking on that red line, however, had slowly eroded in recent months, and evaporated completely when Justice Ruth Bader Ginsburg died on Sept. 18, despite public polling that Americans overwhelmingly believe that the winner of the election should choose the next justice.
Four GOP senators would have to break ranks and join with all Democrats to block a nominee; just two said they were uncomfortable with pushing forward so close to the election. And those who are comfortable seem equally content with letting the political chips fall where they may: in 2016, Sen. Lindsey Graham (R-SC) invited the world to use his words against him if the GOP confirmed a judge in 2020. Facing a stiff challenge back home from an opponent invoking those words at every turn, Graham is nevertheless spearheading the confirmation process as chairman of the Senate Judiciary Committee.
Members of both parties acknowledge that Barrett is all but certain to become President Trump’s third appointment to the high court in as many years.
That’s not to say, however, that the proceedings—which will unfold in marathon Capitol Hill hearings over the next four days—will be drama-free. The political stakes are enormously high for all involved. Democrats are fighting for control of the Senate, and four vulnerable GOP incumbents sit on the Judiciary panel. The party’s vice presidential nominee, Sen. Kamala Harris (D-CA), will be in the spotlight during the hearings, as will two Republicans with their own future presidential buzz.
In recent weeks, Senate Democrats have cast Barrett as an arch-conservative jurist who could be the decisive vote to usher in rulings that the party’s coalition has long feared—rolling back gains on health care, abortion rights, labor rights, and more.
Sen. Chris Coons (D-DE), a Judiciary Committee member, told Fox News on Sunday that in the hearings, he planned to lay out “the ways in which Judge Barrett’s views, her views on reaching back and reconsidering and overturning long-settled precedent, are not just extreme; they’re disqualifying.”
Barrett, a federal judge adored on the right, has been critical of the Affordable Care Act and has aligned herself with the pro-life movement. Republicans expect Democrats to use the hearings to produce a viral “you can’t handle the truth” moment, longtime GOP staffer Ron Bonjean told The Daily Beast.
“Senate Democrats will carefully coordinate their questions and try to start a dialogue with Barrett in order to create some big reveal regarding where she stands on particular matters,” said Bonjean, who helped usher Justice Neil Gorsuch through the Senate in 2017. “Her job is to be as boring as possible by showing at the same time that she’s extremely competent. Not letting them get under her skin.”
Barrett has some recent experience in that regard: in 2017, she came before the Judiciary Committee for her nomination to the federal 7th Circuit Court of Appeals. That means, says Bonjean, that Barrett is ready for the wringer. And Republicans have in fact leaned heavily on that 2017 hearing to advance one of their main talking points ahead of her elevation to the Supreme Court: that Barrett is a victim of anti-Catholic bias.
Three years ago, Sen. Dianne Feinstein (D-CA) memorably told Barrett, a devout Catholic, that “the dogma lives loudly within you” and questioned how her faith impacted her judicial views. While the press has recently dug into Barrett’s religious beliefs, including her association with a tight-knit, deeply conservative Catholic organization called People of Praise, Democrats have largely steered clear of the touchy issue in an effort to avoid what they believe is a clearly telegraphed trap.
Carrie Severino, president of the Judicial Crisis Network—a conservative group that has spent millions of dollars on ads pushing Barrett’s confirmation—said they have bulked up their rapid response in anticipation that the fight will get ugly. Severino said they stand ready to defend Barrett’s Catholic faith as a part of their campaign for her confirmation, even if Democrats have determined to not make it a major issue.
“Even if Chuck Schumer said everything is on the table, attacks on her faith, attacks on her family… I think we are preparing for the more run-of-the-mill attacks ever since the [Robert] Bork nomination, you can expect that people are going to misconstrue the judicial record and get into hyperbolic scare,” Severino told The Daily Beast.
And just because Barrett appears to be on a glide path, Severino said they are taking nothing for granted.
“Even when you have an outstanding nominee, even when you clearly, at this point there would be votes for confirmation… the intensity of a confirmation fight has less to do about the individual nominee and their qualifications, all of that stuff—it has everything to do with stakes of the seat,” she said. “I think we have to be prepared for anything, so we’ve really beefed up our rapid response work and things in the process of preparing for this nomination.”
Democrats plan to press Barrett aggressively on her record, particularly as it pertains to the Affordable Care Act. That’s because the high court will hear another challenge to the sweeping health care law on Nov. 10, and Barrett—who has criticized past rulings to uphold the law—could be a deciding vote to strike it down if confirmed by then.
That possibility has dominated Democratic messaging on the court fight. And it’s their feeling that hyperbole will be unnecessary, and that the huge stakes of the confirmation vote on health care will be abundantly clear to voters this November.
“The members of the Senate Judiciary Committee have been chatting with one another on how to approach the actual interrogation, question period with the nominee,” said Sen. Dick Durbin (D-IL), a Judiciary Committee member, on a Friday call. “We are all agreed on two points: the importance of the ACA, and secondly, the extreme efforts being made by the Republicans to drop everything… and to focus exclusively on filling this Supreme Court vacancy.”
Beyond health care, Democrats plan to press Barrett on abortion rights, given the pivotal role she could play in ushering in anti-abortion rulings on the court. They sense a political advantage on the issue, with polling routinely showing majority support for abortion rights in key states. And many point to the fact that in recent weeks, GOP candidates down ballot—and even Vice President Mike Pence, who is staunchly anti-abortion—have been slippery on the question of whether the landmark Roe v. Wade decision should be overturned.
In her opening statement, released Sunday, Barrett touched on her belief that there are some aspects of public life that courts were not “designed to solve.”
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People,” she wrote. “The public should not expect courts to do so, and courts should not try.”
She also walked through how she weighs decisions, imagining “one of my children was the party I was ruling against.”
“Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law?” she wrote. “That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court.”
After introductory remarks and opening statements on Monday beginning around 9 a.m., senators will question Barrett on Tuesday and Wednesday—with aides expecting long nights, as lawmakers are given 30-minute blocks to question the nominee. The GOP majority on the committee has instructed senators that they may participate remotely, but the two members stricken with COVID-19—Sens. Mike Lee (R-UT) and Thom Tillis (R-NC)—have given no indication they won’t show. Indeed, when both announced they’d contracted the virus, they each said they’d quarantine for the exact amount of days—10—until the hearings began.
Aides expect a sparse hearing room, with no audience and an empty dais for most of the proceedings, with many senators planning on remaining in the hearing room itself only for their own rounds of questioning.
All of that will give Barrett’s hearing a markedly different atmosphere than the past two high court fights of the Trump era, which were defined by aggressively personal acts of protest. The virus-related security restrictions on Capitol Hill guarantee not only an empty hearing room, but near-empty halls in the U.S. Capitol complex. The most memorable images from Brett Kavanaugh’s confirmation, featuring protestors occupying senators’ offices and confronting them in hallways, are all but certain to be absent this time around. Senate Democrats acknowledge that absence will be deeply felt as they work to resist what they see as an illegitimate process.
Against that backdrop, and amid questions over the basic safety of the proceedings, Senate Democrats have largely been left to shout into the void. They’ve decried the confirmation as a hypocritical, illegitimate sham that, thanks to the COVID outbreak, risks the health of all involved. The Democratic leader, Sen. Chuck Schumer (D-NY) and Feinstein called on Graham to delay the hearings on that basis, a call that was totally ignored. Harris announced on Sunday that she would participate via video from her Senate office, saying that the GOP had failed to implement even basic COVID-19 safeguards.
The Republican Party has made clear its desire to fill Ginsburg’s seat, from party loyalists down to occasional critics like Sen. Mitt Romney (R-UT). Democrats, publicly, are still holding out some measure of hope.
“At the grassroots, people are not putting up a white flag of surrender,” said Sen. Ron Wyden (D-OR) on a Friday press call. “We’re going to get the message out, do everything we possibly can to get two more Republicans.”