On Monday, Senate Democrats signaled their intentions for the Amy Coney Barrett confirmation hearings: make the most of them. With Judge Barrett’s confirmation all but assured (even if Senator Mike Lee infected some of his colleagues yesterday), Democrats don’t have a whole lot of cards to play. It’s hard to imagine Judge Barrett saying anything that would get in the way of the Republicans’ big rubber stamps.
But while Democrats can’t do much about Justice Barrett, they can influence the elections. They’ve already done this by turning the hearings into a no-holds-barred referendum on the Affordable Care Act, which Americans like, and Republicans want to kill. So why stop there?
Here are 10 questions the Democrats on the Judiciary Committee should put to Judge Barrett, not so much to evaluate her answers, but to raise the questions anew on a national stage—starting with the unprecedented challenges to democracy that the Trump administration has set forth.
1. If, for whatever reason, President Trump refuses to accept the results of the election and cede power, what should the Supreme Court do?
2. As you know, the Hatch Act bans the use of government resources for political activities aimed at a candidate’s re-election. Does President Trump’s use of the White House and taxpayer funds for multiple campaign events violate the Hatch Act? And what would be the remedy for those violations?
3. As you know, the Emoluments Clause of the Constitution bars the president from receiving any financial benefit from a foreign government. Reports have stated that foreign governments or companies they own pay the Trump Organization approximately $2 million per year in rent. Another report states that China gave Trump-branded hotels $500 million in loans. Do these acts violate the Emoluments Clause? What is the remedy for that? And if you do not believe they violate the Constitution, could you give examples of acts that would?
4. Can you cite evidence for Trump’s claim that there was widespread election fraud in 2016, even though his own commission on election fraud failed to find any? Do you believe that courts should defer to executive authority, even when there is literally no evidence supporting the president’s position? What is your view of the impact of undermining public trust in the democratic process in this way?
Next, Democrats should turn to the illegitimacy of Judge Barrett’s confirmation itself:
5. Can you explain, in your own words, why the consideration of a Supreme Court nominee in March of an election year is invalid, but the consideration of a nominee in October of an election year is valid? Is there any moral principle that justifies this hearing?
6. As you know, President Trump promised to only appoint justices who would overturn the Affordable Care Act. Will you do so? Or is President Trump a sucker?
And finally, since Judge Barrett’s views are so extreme that it’s worth reminding the public of that fact, Democrats could ask just a few substantive legal questions:
7. How is it that a religious baker cannot distinguish between their personal religious beliefs and their legal responsibility to obey non-discrimination laws, and yet a Supreme Court justice can distinguish between their personal religious beliefs and their responsibility to adjudicate cases?
8. You said in 2016: “People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present.” Do you agree with the AMA, APA, and other medical organizations that being transgender is a real phenomenon? Or do you believe that transgender women are merely “physiological males who identify as females”? And can you cite cases in which transgender women assaulted women, or young girls, in public restrooms? If not, why are you bringing up the myth known as the “Bathroom Panic”?
9. Regarding same-sex marriage, you have said that “it wasn’t for the court to decide” whether they should be allowed, and that legislatures should decide. Why is that not true of interracial marriage?
10. Finally, as you know, and as Republicans have said many times, a judge’s job is to apply the rule of law, not rule in a particular, political way. Can you name a single case during your tenure on the bench where you voted for a substantively liberal result, because that was what the rule of law required? Is it just a coincidence that the rule of law always favors a conservative result when you’re the judge deciding it?
Judge Barrett’s confirmation is a foregone conclusion that will besmirch the legitimacy of the Supreme Court for as long as she sits on it, perhaps until 2060 or later. But at least Democrats can score some points in the meantime.