Senators clashed during the first day of the Supreme Court confirmation hearings, setting up early battle lines as tensions ran high just weeks before the Nov. 3 election.
Judge Amy Coney Barrett appeared before the Senate Judiciary Committee for the first time on Monday as part of her confirmation process to succeed the late Justice Ruth Bader Ginsburg.
With the Q&A portion of the hearing not slated to start until Tuesday, senators spent nearly roughly five hours on Monday taking shots at each other and previewing what is expected to be a heated hearing, as Democrats try to make their case to voters even as they appear powerless to stop Republicans from placing Barrett on the Supreme Court.
Senate Judiciary Committee Lindsey Graham (R-S.C.) said he hoped that the four-day hearing could be respectful to the “extent possible” but acknowledged that “this is going to be a long, contentious week.”
“This is probably not about persuading each other, unless something really dramatic happens,” Graham said.
But the gloves quickly came off.
“Unfortunately, I expect the minority will try to rustle up baseless claims and scare tactics …anything to derail the confirmation of a Republican nominee,” said Sen. Chuck Grassley (R-Iowa), the former committee chairman and the third senator to speak on Monday.
Sen. Sheldon Whitehouse (D-R.I.) directly called out Sen. John Cornyn (R-Texas), another member of the committee, during his opening statement.
“Sen. Cornyn has filed brief after brief arguing for striking down the ACA. He led the failed Senate charge to repeal the ACA in 2017. …Please don’t tell us this isn’t about the Affordable Care Act (ACA). From Cornyn job to Cornyn job to this nominee, hop, hop, hop. When Texans lose their ACA healthcare protections, hop, hop, hop, to see whose doorstep that steps on,” Whitehouse said.
Cornyn, sitting across the room, could be heard scoffing at Whitehouse’s remarks.
There were brief moments of comity.
As Sen. Kamala Harris (D-Calif.), the Democratic party’s vice presidential nominee, video conferenced into the hearing, Graham told her: “Congratulations on being on the ticket.”
And after Sen. Mazie Hirono (D-Hawaii) spoke about her own battle with cancer, Graham called her an “asset to the Senate.”
“I appreciate that. Thank you,” Hirono said, before adding: “Do the right thing.”
Trump nominated Barrett late last month to succeed Ginsburg, teeing off an explosive election-year fight over the future of the Supreme Court. If Barrett is confirmed, she’ll lock in a 6-3 conservative majority.
Democrats focused their message Monday on the impact Barrett could have on health care, putting up roughly a dozen posters of individuals who would be hurt if the Supreme Court strikes down the 2010 Affordable Care Act, also known as ObamaCare.
The court is scheduled to hear a case on Nov. 10 that could determine the future of the Obama-era health care law. The challengers, a group of more than a dozen Republican states with backing from the Trump administration, argue that the law’s original design depended on a requirement that most people purchase insurance, and set up a tax penalty for noncompliance. But the Trump tax cuts passed by Congress in 2017 zeroed-out the penalty, which, according to the GOP litigants, should result in the entire law being stuck down.
“My colleagues and I will focus on that subject. We will examine the consequences if, and that’s a big if, Republicans succeed in rushing this nomination through the Senate before the next president takes office,” said Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Senate Judiciary Committee.
Whitehouse added that Barrett was a “judicial torpedo” that conservative activists were trying to fire at the ACA.
Though the hearings are meant to put Barrett under the microscope, Democrats also repeatedly homed their fire on Trump, including his refusal to commit to a peaceful transfer of power if he loses the election next month.
“For the first time in the history of the United States, an incumbent president refuses to commit to a peaceful transition of power if he loses. This president in his vanity and constitutional recklessness refuses to commit to accept the will of the American electorate,” said Sen. Dick Durbin (D-Ill.).
Sen. Amy Klobuchar (D-Minn.), appearing to speak directly to Americans watching the hearing, called the hearing a “sham” and that the president “doesn’t think truth matters.”
“He has allies in Congress who in the past defended our democracy, but are now doing his bidding,” she said. “This isn’t Donald Trump’s country, it is yours. This shouldn’t be Donald Trump’s judge, it should be yours.”
Democrats are expected to push Barrett to commit to recusing herself from any case involving the election, something she has so far refused to do. Sen. Richard Blumenthal (D-Conn.) warned that her taking part in such a case would result in “explosive enduring harm to the court’s legitimacy and to your own credibility.”
Though other Supreme Court nominees have been confirmed in a shorter time span, Republicans will set a record for the closest to a presidential election a Supreme Court nominee has been confirmed if they place Barrett on the bench, as expected, at the end of the month.
Under the GOP timeline, the Senate Judiciary Committee will hold a vote on Barrett’s nomination Oct. 22. That would set up the full Senate to confirm her during the final week of October, where she will need at least 50 yes votes and Vice President Pence to break a potential tie.
Graham acknowledged that Democrats were “right” to say that Republicans are confirming Barrett so close to an election. He also defended moving forward with the hearing even after two members of the committee recently tested positive for the coronavirus and an additional two senators had to self-isolate.
Sen. Mike Lee (R-Utah), who tested positive, and Sen. Ben Sasse (R-Neb.), who tested negative but self-isolated, were both in the hearing room on Monday. Lee said he was cleared to attend in person, and was spotted, like most senators, not wearing a mask while he spoke. Sen. Thom Tillis (R-N.C.), who tested positive, and Sen. Ted Cruz (R-Texas), who was self-isolating because of exposure to Lee, both took part remotely.
“I feel that we’re doing this constitutionally. That our Democratic friends object to the process, I respect them all. They’ll have a chance to have their say. But most importantly I hope we will know more about how the law works … when this hearing is over,” Graham said.
Barrett, who attended the hearing in person, sidestepped the political firefights during her opening statement, the only remarks she will give Monday, instead giving a broad preview of her judicial philosophy.
“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. The public should not expect courts to do so, and courts should not try,” Barrett told senators.
Republicans went on the attack Monday against Democrats, accusing them of trying to set up a “religious test” for the Supreme Court.
No Democrats mentioned Barrett’s Catholic faith on Monday, but several Republican senators referenced remarks made by Feinstein during Barrett’s 7th Circuit Court nomination hearing from a few years ago. Feinstein, questioning if Barrett could separate her beliefs from her job as a judge, said, “The conclusion one draws is that the dogma lives loudly within you.”
“This committee isn’t in the business of deciding whether the dogma lives too loudly within someone. This committee isn’t in the business of deciding which religious beliefs are good and which religious beliefs are bad and which religious beliefs are weird,” said Sasse.
They also referenced back to the 2018 fight over Justice Brett Kavanaugh, one of the most contentious moments in modern Senate history.
“It was a freak show. It looked like the cantina bar scene out of Star Wars,” said Sen. John Kennedy (R-La.).
Kennedy added that he hoped the hearing on Barrett’s nomination would not turn sour, but added, “before it’s over with, they may call you Rosemary’s baby for all I know.”