WASHINGTON—Senators clashed over confirming Amy Coney Barrett to the Supreme Court at hearings that commenced on Monday, with Republicans brushing aside Democratic objections about the push to act just ahead of Election Day and cement a conservative majority on the court that could last for a generation.
In a proceeding that featured hand sanitizer and masks in response to the coronavirus pandemic, Senate Judiciary Committee Chairman Lindsey Graham (R., S.C.) recognized the dug-in positions of most, if not all, of his committee colleagues: “This is probably not about persuading each other,” Mr. Graham said. “All Republicans will vote yes, all Democrats will vote no.”
Democrats unified around a strategy of focusing on the 2010 health-care law, an issue that helped them in the last midterm elections, arguing that a more conservative Supreme Court with Judge Barrett could place health-care protections in jeopardy. Republicans accused Democrats of jumping to conclusions about Judge Barrett’s views and seeking to turn the court into an arm of the legislature to achieve policy victories they can’t secure in the political process.
Judge Barrett, 48 years old, speaking after nearly five hours of opening statements by the committee’s members, said that “courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people.”
Her comments echoed those made by Republican senators who said judges must recognize their limited role and not overstep into the prerogatives of the other branches.
Democrats, however, also said judges are supposed to interpret the law, not make policy, and they accused the GOP of trying to do the opposite by pushing a nomination that they said could give a conservative Supreme Court the votes to undo legislation from the Democratic Congress that enacted the Affordable Care Act. The high court will hear arguments on the health law’s future in a case next month.
“The stakes are extraordinarily high for the American people both in the short term and for decades to come,” said Sen. Dianne Feinstein of California, joining other Democrats who spoke against a backdrop of large photos of Americans with pre-existing conditions that under the ACA must be covered, and at no additional charge. “Most importantly, health-care coverage for millions of Americans is at stake.”
“That’s outrageous,” said Sen. Chuck Grassley (R., Iowa). “As a mother of seven, Judge Barrett clearly understands the importance of health care.”
The opening session was a prelude to a battle for public opinion that will include two days of questioning of the judge and then a day with testimony from an outside panel. Both parties view the hearings as a vital chance to appeal to voters at a moment when millions of them are already voting. Both also are seeking to shape public views about the consequences of the likely result: a 6-3 court favoring conservatives.
The immediate outcome of the hearings wasn’t in question because Republicans control 53 out of 100 votes, giving them the majority to confirm Judge Barrett both on the Senate floor and in the committee, which is split 12-10 in favor of Republicans. But the Supreme Court is a major issue in the elections, as is the credibility and composition of the court, given that the progressive wing of the Democratic Party has favored taking steps to weaken conservative power, either by adding more justices or adopting term limits instead of life tenure.
The hearing took place within a context that was tailor-made for the Democrats’ focus on health care. Sens. Mike Lee (R., Utah) and Thom Tillis (R., N.C.) both disclosed earlier this month that they had tested positive for Covid-19 after attending a White House ceremony for Judge Barrett. Mr. Lee joined the hearing in person after being cleared by his physician. Mr. Tillis participated remotely, as did several other senators. Judge Barrett wore a mask as she listened, making her facial expressions impossible to read.
“This hearing has brought together more than 50 people to sit inside of a closed-door room for hours while our nation is facing a deadly airborne virus,” said Sen. Kamala Harris (D., Calif.), the Democratic vice presidential nominee, who appeared via an internet connection. “The decision to hold this hearing now is reckless.”
That put Mr. Graham, facing a tough re-election campaign in which his rival has questioned his pandemic response, on defense. Mr. Graham said that he had tested negative for the virus earlier in the month, that he was running the hearings in accordance with safety guidance from experts, and that Americans expected their government to work.
“We do have a country that needs to move forward safely, and there are millions of Americans, cops, waitresses, nurses, you name it, going to work today to do their job,” Mr. Graham said at the start of the hearing. “We’re going to work in the Senate to do our job.”
Democrats are embittered by the Republicans’ decision to try to fill the seat before the coming presidential election, after they did the opposite upon Justice Antonin Scalia’s death in February 2016. The GOP-controlled Senate held that vacancy open until after President Trump’s inauguration, denying even a hearing for President Obama’s nominee, Judge Merrick Garland. The slot ultimately went to Mr. Trump’s first nominee, Neil Gorsuch. Republicans remember the 2018 battle over now-Justice Brett Kavanaugh; he faced sexual-assault charges, which he denied, during his confirmation hearing.
Inside the Barrett Nomination
Adding to the acrimony, Judge Barrett’s confirmation could transform the court in a way other recent nominees haven’t, because the conservative jurist—a former Scalia law clerk—would replace Justice Ruth Bader Ginsburg, who led the high court’s liberal bloc. The swap could make the court considerably more conservative, and make the occasional liberal ruling from the Supreme Court a thing of the past.
For many years, the partisan fights over judicial nominations have focused heavily on abortion rights, with conservatives supporting nominees they believe will want to overturn Roe v. Wade or at least limit abortion rights, while Democrats have vowed to oppose any nominee who would do so. In an unexpected twist, the issue took something of a back seat on the opening day of the Barrett proceedings, even with a nominee who has more of a record on abortion than others who have come before the Judiciary Committee.
On the appeals court, Judge Barrett has cast two dissenting votes that suggest she is, at minimum, skeptical of broad abortion rights from a legal standpoint. As a law professor, she has also written that a justice should enforce her best understanding of the Constitution, even if that means overturning court precedent.
Personally, she has made it plain that she opposes abortion. During her academic career, she was a member of the group University Faculty for Life, and she previously signed her name to antiabortion newspaper advertisements, including one opposing “abortion on demand.”
Republicans avoided the issue on Monday. Some Democrats addressed it, but not with the same focus they devoted to health care. Sen. Cory Booker (D., N.J.) cited a prior pledge by Mr. Trump that he would appoint justices who are committed to overturning Roe.
“He said it clearly. We should believe him,” Mr. Booker said.
Each party has a strong incentive to tread carefully around the issue. Republicans are reluctant to drive up opposition among the suburban women who helped give Democrats control of the House in 2018. Democrats are wary of raising an issue that intersects with questions of religion that are central in the Barrett nomination.
During Judge Barrett’s 2017 confirmation hearing for a seat on the Seventh U.S. Circuit Court of Appeals, conservatives expressed outrage when some Democratic questioning of Judge Barrett veered into a discussion about whether her Catholic faith could play a role in how she approached the job of a judge.
Democratic presidential nominee Joe Biden said Judge Barrett’s faith should not be a consideration as she undergoes her confirmation process, and that Democrats should stick to the health law.
“I don’t think there should be any questions about her faith,” Mr. Biden said Monday before departing for a campaign trip to Ohio.
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Republicans sought to keep the topic alive, suggesting religious hostility remained a factor in the opposition to Judge Barrett’s nomination. Republican senators on multiple occasions referred back to Ms. Feinstein’s comment to Judge Barrett at the 2017 hearing that “the dogma lives loudly within you.”
“As if you can’t be both a devout Catholic and a loyal American citizen,” said Sen. Josh Hawley (R., Mo.). “When you tell somebody they’re too Catholic to be on the bench and tell them they’ll be a Catholic judge, not an American judge, that’s bigotry.”
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