“This,” began Sen. Amy Klobuchar (D-MN), “is not normal right now.”
She was the 10th senator to speak on the second day of confirmation hearings for Supreme Court nominee Amy Coney Barrett—but the first to state the obvious.
The signs were everywhere: the masked members of Barrett’s family sitting behind her and the senators sitting in front of her, flanked by bottles of hand sanitizer, ensured that reminders of the COVID-19 pandemic were in every frame.
The frequent tributes to the previous occupant of the seat Barrett hopes to fill, who died less than a month ago, and the shadow of the imminent Nov. 3 election, mentioned by the committee’s own chairman in relation to his own prospects, ensured that the abbreviated timeframe and heated political circumstances of Barrett’s confirmation were inescapable.
“We need a reset here, in my mind, for the people at home,” said Klobuchar, attempting to put a fine point on it. “A bit of a reality check.”
But many of the Minnesota Democrat’s colleagues—on both sides of the Senate Judiciary Committee dais—did their part to lay a veneer of normalcy on one of the most abnormal high court fights in recent memory.
Democrats conveyed their opposition to Barrett’s nomination in strong terms, but many extended her the customary niceties afforded a high court nominee—even as some in the party quietly flouted those and activists urged lawmakers to go nuclear on the entire proceedings.
The committee’s top Democrat, Sen. Dianne Feinstein (D-CA), began her questioning by asking Barrett to introduce her husband, children, and siblings who were in the audience behind her. “It’s good to see you,” Feinstein told Barrett warmly. Later, Sen. Chris Coons (D-DE) recalled a visit with former Sen. Jeff Flake (R-AZ) to Notre Dame’s law school, where Barrett taught for years, for an event to talk about bipartisanship. Most members simply launched quickly into questions about the Affordable Care Act, the issue around which Democrats have chosen to fight this court battle.
Republicans, meanwhile, gave the expected soft-focus treatment to their party’s nominee and used much of their time to go after Democrats’ arguments—sometimes in incredibly harsh terms—as they inched closer to confirming someone who could tilt the high court’s balance for years.
But the display was enough for Sen. Lindsey Graham (R-SC), the committee’s chairman, to remark at the halfway point about just how well-behaved everyone had been. "Not one time has a senator and the judge talked over each other,” said Graham. “I hope the American people understand that this is the way that it should be.”
That lack of interruption was, in part, because several members used their 30 minutes of allotted time to give speeches rather than ask questions.
Sen. Mike Lee (R-UT) spent most of his time not asking questions but pontificating on the nature of constitutional government and talking about the Founders. Sen. Sheldon Whitehouse (D-R.I.) didn’t ask Barrett a single question and instead launched into a detailed review of the outside “dark money” involved in the effort to confirm Barrett, and others, to the court. And Sen. Ted Cruz (R-TX) bookended a lengthy diatribe against the left with only few questions for Barrett, including whether she spoke another language and whether she played an instrument.
Klobuchar, meanwhile, was one of the few who moved to ask Barrett pointed questions—and in doing so managed to provoke a rare admission from the disciplined judge on the landmark Roe v. Wade decision. Barrett stated that she did not view Roe as a “super-precedent,” or in other words, settled law—a statement that Trump’s past two nominees were unwilling to make.
It was one of the few moments where the public learned new information about the kind of Supreme Court justice that Barrett might be.
But with the judge’s ultimate confirmation hardly in doubt, each senator seemed content to fight their preferred political battle.
For the Republican senators on the panel facing competitive re-elections this fall, that battle looked like using their 30-minute blocks as a soapbox to air home-state concerns critical to their re-elections and attack Democratic messaging. Sen. Joni Ernst (R-IA), for example, explained in detail the Senate GOP’s coronavirus relief bill—aimed at Democrats’ claims that they should be working on that instead of the nomination—and found time to question Barrett on corn-based ethanol fuel, a critical political issue in her home state. Sen. Thom Tillis (R-NC) hit on GOP themes of law and order and Graham, facing the challenge of his career from Democrat Jaime Harrison, was most explicit. The chairman began his opening remarks on Tuesday morning by targeting Democrats’ claims that installing Barrett on the high court would ensure Obamacare’s defeat in a Nov. 10 case.
In a screed that would be more at home on a debate stage than a committee dais, Graham lamented the failures of the law in South Carolina before ending with a sigh. “That's the political debate, my fate will be left up to the people of South Carolina,” he said, before moving into questions for the nominee.
As they did during their opening statements on Monday, no Democrat on Tuesday let their time pass without raising the Obamacare stakes of the confirmation battle. Klobuchar and Coons in particular interrogated Barrett over her past writings on the court’s previous decisions to uphold the ACA, rulings that the federal judge criticized when she was a law professor at Notre Dame.Questioned repeatedly on how she’d approach the case coming before the court next month, Barrett declined to say, citing the standard that nominees should not preview their judicial thinking on any issues. But she bristled at any suggestions she was “hostile” toward the health care law. “I am not here on a mission to destroy the Affordable Care Act,” she said.
The last Democrat to ask questions, Democratic vice presidential candidate Sen. Kamala Harris (D-CA), also zeroed in on Barrett’s decision-making process on the ACA. She tried to link her first nomination to the federal bench in 2017 to an article she wrote in January of that year rebuking Chief Justice John Roberts for his decision that ultimately saved the law.
Asked by Harris whether Barrett had heard Trump’s comments that he would only nominate judges who opposed the ACA, Barrett hedged, saying she didn’t recall when she had written the article criticizing Roberts’ ruling.
The disciplined focus of Harris’ questioning reflected how central her party sees the ACA issue for their 2020 political hopes. The California senator was already considered one of her party’s best questioners; those expectations only rose with her status as Democratic nominee Joe Biden’s running mate. But the party’s star interrogator stuck to the issue that Biden and his team have hammered constantly on the campaign trail against Trump.
When they weren’t talking about health care, Democrats pressed Barrett on several other third-rail topics involving the president who handpicked her for the job. Coons asked Barrett if she’d recuse herself from any case that could determine the outcome of the 2020 presidential election—a scenario that Trump has specifically cited as a reason to fill the late Justice Ruth Bader Ginsburg’s seat before Nov. 3.
Barrett, denying that the topic had come up at all with Trump, bristled again. “I’d certainly hope all members of this committee have more confidence in my integrity than to think I’d be used as a pawn to decide this election,” she said. “I promise, if I were confirmed, and if an election dispute arises... I would consider every relevant factor.”
Other Democrats asked Barrett her opinion of other election related items, such as whether she thought voters could be intimidated by armed civilians monitoring the polls, and on Trump’s casting doubt on a peaceful transfer of power. She largely dodged them all, citing the red line preventing her from weighing in on legal issues.
Klobuchar was the first to mention the abnormality of the proceedings, but after a day’s worth of questioning, she was not the last. Sen. Cory Booker (D-NJ) told Barrett he intended to ask “questions I thought wouldn’t be possible”—if she condemned white supremacy, if Trump had the power to pardon himself, if there’d be a peaceful transfer of power.
“I think it’s disturbing,” said Booker, “that we’re having this conversation.”