The malfunctioning mics ensured that the Senate Judiciary Committee fell awkwardly silent at times during the third day of Amy Coney Barrett’s confirmation hearing. Outside the room, however, the din of politics surrounding the nomination kept getting louder.
Those respective playbooks became clear not long after Justice Ruth Bader Ginsburg’s death in September, which opened up the seat that Barrett has been nominated to fill. But by Wednesday, with her confirmation hearings in full swing, those tactics are being applied across the country from the presidential race to key U.S. Senate races.
Democrats have treated the high court fight as another front in their war to take back the White House and Senate with a laser-like focus on the issue of health care. With Barrett set to be a crucial vote on an upcoming case on the fate of the Affordable Care Act, they are constantly telling voters that President Trump and GOP senators on the ballot this fall are effectively moving to take away health care from millions by confirming her.
Sen. Lindsey Graham (R-SC), the committee chairman, eagerly confirmed the sentiment at the outset of Wednesday’s hearing: “Obamacare is on the ballot,” he said. Jaime Harrison, the Democrat challenging Graham, couldn’t have scripted it better himself. Harrison, who has put Graham’s handling of the Barrett nomination under the microscope all week, hammered his opponent on Twitter all day on Tuesday and Wednesday, and has run social media ads attacking Graham’s previous vow not to pursue a Supreme Court confirmation the year of an election.
In Texas, where Sen. John Cornyn (R-TX), is facing a tougher than expected re-election fight, his Democratic opponent, MJ Hegar, clipped Cornyn’s remarks from Tuesday—where he jokingly referred to the fight as “ACA vs. ACB”—into a shareable video on Twitter. “Your little line isn’t cute, John, it’s potentially deadly for 5 million Texans with pre-existing conditions,” Hegar tweeted.
And in North Carolina, where Sen. Thom Tillis (R-NC), a Judiciary Committee member, is trailing his Democratic opponent, outside liberal groups are dumping ads claiming his Supreme Court vote “could take away health care during the pandemic.” If that point were not clear enough, as Tillis sat in the Capitol Hill hearing room on Wednesday, a banner was ferried by plane over Raleigh with the message “Trump & Tillis want to take your health care.”
An Oct. 13 memo circulated by the Democratic Senatorial Campaign Committee pointed to several recent polls that showed support for the Affordable Care Act among independent and registered voters and a lack of support for pushing through a court nominee before the election.
These factors, they said, along with record-breaking fundraising and the president’s mishandling of the coronavirus pandemic, has only strengthened the potential for flipping the Senate.
The GOP playbook, meanwhile, has centered on using the proceedings as a megaphone to amplify the issues Republicans would love to fight this election over: religious freedom, abortion, guns, and owning the libs. Closing in on confirming a justice who could shift the balance of the Supreme Court toward the right for years, conservative senators sought to rally their base around shared priorities and their shared enemies.
Graham, in his remarks, insisted that South Carolina prefers conservative justices and he is acting accordingly. Asked at the end of the day if the hearings helped dent his fundraising gap with Harrison, he gave a plug for the cameras. “Well, I think people in South Carolina are excited about Judge Barrett. I don’t know how much it affected fundraising today. But if you want to help me close the gap, Lindsey Graham dot com, a little bit goes a long way.”
Much of the GOP strategy rested on constantly raising the notion that Democrats were actively attacking Barrett on the basis of her religious beliefs, something no senator did this week; and using Barrett as a stand-in for what they see as broader Democratic contempt for the entire right.
“They made it about the issues that they wanted to talk about because we are 20 days away from an election,” said Sen. Marsha Blackburn (R-TN) of Democrats, accusing them of projecting stereotypes onto the conservative Catholic jurist. “They enjoy being able to mock and ridicule, and to diminish and to demean. To them it is political sport.”
Sen. Joni Ernst (R-IA), a Judiciary panel member facing a tough re-election bid herself, tweeted frequently about the proceedings, focusing not on what Barrett said but about what Democrats said about her. Quoting a tweet from former Rep. Katie Hill (D-CA) critiquing Barrett’s choice of clothing, Ernst said, “the liberal left is attacking Judge Barrett in this way because they can’t attack her on her qualifications or character. No woman should have to deal with this kind of blatant sexism.”
Behind the noise, however, lurks a thornier question: whether any of it might move votes within a voting public that has already retreated into its partisan corners.
Privately, some Democrats believe that seizing on the confirmation to put a relentless focus on an issue favorable to them politically may not move the needle much in key Senate races and that the whole confirmation battle might be a political wash. As it was before the Supreme Court vacancy seemed to shake up the 2020 race, the COVID-19 pandemic is still seen by Democrats as the issue that will determine the election’s outcome.
“It’s the pandemic, stupid,” a Democratic aide told The Daily Beast.
Despite the political war being waged around the country, the proceedings inside the Judiciary hearing room were remarkably civil by contemporary standards. Graham ended the hearing on Wednesday with a sigh of relief, saying: “I have lost sleep over this hearing. I did not know how it would go.” In an unusual moment, he thanked the Democrats “for allowing us to get through this hearing in a fashion that is befitting of the Senate.”
But that didn’t mean there weren’t any fireworks—between Democrats and Republicans, and between Democrats and the nominee.
Perhaps the most contentious exchange came late in the day, when Democratic vice presidential nominee Sen. Kamala Harris (D-CA) asked a series of questions with obvious factual answers—is COVID-19 infectious, does smoking cause cancer—as Barrett wondered aloud where the questioning was headed.
“Do you believe climate change is happening and threatening the air we breathe and the water we drink?” the California Democrat asked.
Barrett replied by applying one of her carefully practiced dodges to a question that, to overwhelming majorities of the scientific community, is not a question at all. Calling the issue of climate change “a very contentious matter of public debate,” the nominee—whose chilly frustration with Harris was apparent—said, “I will not express a view on a matter of public policy, especially one that is politically controversial because that’s inconsistent with the judicial rule, as I explained.”
“Thank you, Judge Barrett,” Harris replied. “You’ve made your point clear that you believe it is a debatable point.”
Harris then closed by making clear that while everyone on the panel was playing nice, that did not mean they were at peace with the process.
“Mr. Chairman, I believe these proceedings lack legitimacy in the eyes of the people of our country,” Harris said. “This hearing has done nothing to alleviate the concerns raised about why this nominee was chosen and why this is being rushed when the American people deserve to be heard.”