In case you missed it, go in-depth on each day of the Amy Coney Barrett Supreme Court hearings:
After four days of dodged questions by Supreme Court nominee Judge Amy Coney Barrett—and barrages of disapproving remarks by Senate Democrats—Congress and the American public seem no more informed on Barrett than they were when Trump rushed her appointment, just a week after Justice Ruth Bader Ginsburg‘s passing.
However, it has become clear that an informed and critical vote is not what Republicans are after: Mere weeks from Election Day, their main goal is speed. They continue to push through the confirmation—despite the fact that over 17 million voters have already cast their ballots and despite the blatant hypocrisy after their yearlong blockade in 2016 against President Obama’s nominee, Merrick Garland.
Overall, Democrats remain squarely focused on health care (a winning topic for the party, as the 2018 midterms made clear). Throughout the week, they continued to relentlessly tie Barrett’s confirmation with the fate of the Affordable Care Act (ACA)—set to go in front of the Supreme Court just a week after Election Day, on Nov. 10.
1. Barrett’s Strategy: Evade, Evade, Evade
Barrett evaded questions on a multitude of issues, citing her potential supposedly nonpartisan position as a reason to not express political views prematurely. She was pressed on several issues, which she refused to shed light on:
- The ACA and health care: In 2017, Barrett herself condemned Chief Justice John Roberts for having “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in 2012, but when asked during the hearings whether she would undermine the ACA, she insisted she has “no hostility” toward the measure. She also refused to take a stance on whether or not the individual mandate is inseverable from the entire ACA—the question at the heart of the Nov. 10 ACA challenge.
- LGBTQ+ rights: Evading any questions regarding her stance on the 2015 Obergefell v. Hodges ruling, Barrett attempted to recuse herself and quell concerns, stating, “I have never discriminated on the basis of sexual preference.” (Her extensive ties to designated hate group Alliance Defending Freedom indicate otherwise.)
- Racial equality: When Sen. Dick Durbin (D-Ill.) asked Barrett if she had seen the George Floyd video, Barrett admitted she had and that it was “personal … given that I have two Black children.” Durbin pressed Barrett more on racism; she responded, “Racism persists in our country.” but wouldn’t say it was systemic.
- Abortion and the fate of Roe v. Wade: Barrett avoided spelling out her views of Roe v. Wade, saying she would not comment on potential rulings. Senator Dianne Feinstein (D-Calif.) was visibly displeased by Barrett’s evasion, saying, “On something that is a major cause with major effects on over half of the population of this country who are women, it is distressing not to get a straight answer.” Barrett also refused to say whether she views criminalizing IVF treatments as constitutional. (For context, leading fertility doctors oppose her nomination.)
- Contraception: In a line of questioning between Barrett and Sen. Christopher A. Coons (D-Del.) on Griswold v. Connecticut—the 1965 case striking down a ban on contraception—Barrett said, “I think Griswold is not going anywhere unless you plan to pass a law prohibiting couples, all people, from using birth control”—but declined to say anything further about whether or not states could make contraceptives illegal.
- Voter intimidation: Following Trump’s directive to his supporters to “go into the polls and watch very carefully,” Sen. Klobuchar (D-Minn.) asked Barrett if she believes, under federal law, if it is illegal to intimidate voters at the polls. Barrett evaded, saying: “I can’t characterize the facts in a hypothetical situation, and I can’t apply the law to a hypothetical set of facts.”
- Voting rights: Klobuchar also questioned Barrett on whether she thought mail-in voting was essential, given the country is in the throes of a pandemic. Barrett again refused to answer: “That’s a matter of policy on which I can’t express a view.” During a different tense line of questioning, this time with Sen. Dick Durbin (D-Ill.) on the subject of restoring voting rights to felons, Barrett refused to answer whether the president could deny certain groups the right to vote.
- Immigration and family separation: Under questioning from Sen. Cory Booker (D-N.J.), Barrett refused to opine on whether separating children from their parents at the border is wrong, calling it a matter of “hot political debate.”
- Election disputes: When asked whether a president has the power to unilaterally delay an election, Barrett did not provide a direct answer, nor did she agree to recuse herself from any related Supreme Court cases. No president has the power to suspend the elections. But President Trump has admitted publicly that he is counting on Barrett’s ruling in his favor should a dispute arise in the November elections—which may explain why Republicans are barreling forward with Barrett’s confirmation process.
- Supreme Court nominations during election years: When asked by Klobuchar whether it’s wise to confirm a Supreme Court justice so close to an election, Barrett yet again deflected, saying, “That is a question for the political branches.”
- Climate change and the environment: Barrett said that while she has read up on the climate change, she does not have “firm views” on the issue. “I’m certainly not a scientist,” she told Sen. John Kennedy (R-La.). “I mean, I’ve read things about climate change. I would not say I have firm views on it.”
2. Sen. Sheldon Whitehouse Ties Amy Coney Barrett’s Nomination Directly to Republican “Dark Money”
On Tuesday, Sen. Sheldon Whitehouse (D-R.I.) used every one of his 30 minutes to spell out in excruciating detail the deep ways groups like the Federalist Society and Judicial Crisis Network and their dark money have infiltrated its way into American politics—specifically into the judicial branch.
He tied the Federalist Society to the Republican party’s selection of federal judges, and said the group provided what Esquire’s Charles P. Pierce calls an “ideological assembly line” of conservatives to add to the judiciary.
While Whitehouse couldn’t get Barrett to admit her connections to the Federalist Society, he must have struck a cord with the Republicans on the committee: Immediately following Whitehouse, Sen. Ted Cruz (R-Texas), spent much of his time attempting to discredit Whitehouse’s characterization of Republican dark money as “red thread conspiracy theories” and just another installation of a partisan culture war. Sen. Ben Sasse (R-Neb.) similarly dismissed Whitehouse’s visual aids as “Beautiful Mind charts.”
3. Sen. Lindsey Graham Breaks the Rules; Democrats’ Last-Ditch Appeal to Delay
Before even hearing from the witnesses, Senate Republicans—the so-called “law and order” party—plowed through the rules of the Senate Judiciary Committee to schedule a committee vote on Barrett’s nomination for Oct. 22, ignoring rules that require a minimum of two members of the minority party to be present to conduct business.
“I want to take official note of the fact that I am the only member of the minority that is here, and so we cannot conduct business until that second member of the minority arrives,” Sen. Dick Durbin (D-Ill.) said.
Chairman of the Judiciary Committee Sen. Lindsey Graham (R-S.C.) rejected his claim and proceeded anyway, saying Democrats would do the same if they were in his position.
When the Committee eventually convened for the first day of the hearings, Sen. Kamala Harris (D-Calif.) remotely condemned the decision from her office, saying the hearings should have been postponed because of coronavirus concerns and that the committee has not taken enough precautions to keep people safe.
However, the pandemic failed to slow the Republicans, and Sen. Mike Lee (R-Utah), who tested positive for COVID-19 only 11 days ago, even spoke maskless in-person in the committee room.
4. Republicans Not Phased by Democrats’ Claims of Hypocrisy
In 2016, when debating consideration of President Barack Obama’s nomination of Merrick Garland for a seat on the Supreme Court (previously held by Justice Antonin Scalia), 36 Republican senators refused to even schedule hearings, citing the inability to confirm judges during an election year. But now 31 of them have gone back on their word.
With concerns arising as to whether self-interest is a factor in Trump’s persistent judicial overhaul, Sen. Patrick Leahy (D-Vt.) asked Barrett repeatedly about her views on executive power—more specifically, whether or not the Supreme Court had the power to enforce their rulings if a president disobeyed.
The nominee admitted, “No one is above the law,” but repeatedly deflected, then ultimately said, “The Supreme Court cannot control whether or not the president obeys.”
5. Filling a Third Supreme Court Seat is a Higher Priority for the GOP Than Serving Democracy
Several Democrats on the Judiciary Committee—such as Sen. Mazie Hirono (D-Hawaii)—cited recent polling showing that a majority of Americans (74 percent) want Congress to focus on stopping the spread of coronavirus and on economic relief, rather than ram through a new SCOTUS nominee.
Richard Blumenthal (D-Conn.) pulled this thread on Monday, calling the Barrett hearings a display of “raw political power: [Republicans are] doing it because they can. But might does not make right.”
Whitehouse told his Republican colleagues: “Don’t think that when you have established the rule of ‘because we can,’ that should the shoe be on the other foot, you will have any credibility.”
Booker attempted to appeal to Republicans’ sense of humanity, calling his Republican colleagues by name: “We are failing as a body. … I am appealing right now: We’ve got to stop this.” He said the hearings were happening at a time of crisis for the U.S., including record-breaking food lines, high unemployment and a president who refuses to commit to a peaceful transfer of power. What is needed, he said, is a “revival of civic grace.”
If you agree with the 74 percent of Americans who believe the Senate should be prioritizing COVID-19 relief, instead of pushing through a lifetime appointment to the Supreme Court, call your senators at (202) 224-3121.
Get caught up on all four days of the Amy Coney Barrett hearings: