Supreme Court confirmation hearing starts under 2020 cloud

Republicans intent on confirming before Election Day

Barrett, who has been meeting Republican senators, is scheduled to appear at a confirmation hearing next week.  (Caroline Brehman/CQ Roll Call)
Barrett, who has been meeting Republican senators, is scheduled to appear at a confirmation hearing next week. (Caroline Brehman/CQ Roll Call)
Posted October 8, 2020 at 5:00am

The Supreme Court confirmation hearing for Amy Coney Barrett starts Monday amid a very 2020 backdrop: Beset by COVID-19, sharply divided along political lines, conducted with the help of remote videoconferencing, with sweeping policies on health care, abortion and more hanging in the balance.

Senate Republicans will press to swiftly confirm the 48-year-old federal appeals court judge and former law professor before the Nov. 3 presidential election. That would establish a 6-3 majority for the court’s conservative wing and solidify that tilt for what could be decades.

President Donald Trump has urged the Senate to make it a priority over another coronavirus relief bill, even as he is isolated in the White House and off the campaign trail after his hospitalization for COVID-19, which he might have contracted at a Rose Garden announcement for Barrett’s nomination on Sept. 26.

“It will be fast and easy!” Trump tweeted about Barrett’s confirmation. It was in response to an author’s suggestion that the Barrett confirmation battle would be “bloody” because Barrett would “help pick the next president”— an allusion to the president’s apparent plan to have Barrett on the bench in time to rule on any contested election.

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Two Senate Judiciary Committee members, Republicans Mike Lee of Utah and Thom Tillis of North Carolina, are expected to appear remotely as they self-isolate because they tested positive for COVID-19 after attending the Barrett announcement event.

Democrats are opposed to pushing forward with such a consequential hearing amid a pandemic and allowing for remote participation, as Lee attended a committee hearing in person the day before he tested positive and Capitol Hill support staff will have to work as well.

“I will be there in person. I will be wearing a mask. I will be insisting that every senator and staff be tested twice before they enter that room,” said Connecticut Democratic Sen. Richard Blumenthal, a committee member. “And I’m hopeful that my colleagues will wear masks as well.”

Delaware Democratic Sen. Chris Coons, a committee member, said he would attend in person, but several members with health concerns would have to do it over video, which makes it harder to read body language or determine tone or inflection.

“It attenuates the engagement that’s possible with the nominee. It increases the likelihood that we’re sort of speaking past each other,” Coons said. “And it is one of several reasons why we shouldn’t be doing this next week.”

Barrett will likely get a question or two related to the pandemic, and her role in the Rose Garden announcement ceremony that some point to as a possible superspreader event for the coronavirus.

The committee plans to have protective equipment stations, sanitary stations and strict limits on persons allowed into the hearing room, among other precautions.

Other than all that, barring any more 2020-esque twists and surprises, the four-day hearing could play out similarly to how it did for Trump’s previous two Supreme Court appointees.

Opening statements will be Monday, and the questioning will start Tuesday. Here’s what to expect.

Making it personal

Republicans will focus on Barrett’s conservative judicial philosophy as well as her personal story, including her family and some of the educational and geographic diversity her appointment would bring to the Supreme Court.

Trump picked Barrett to fill the seat of Justice Ruth Bader Ginsburg, who was a trailblazing women’s rights advocate before her 27 years on the high court and 13 years on the U.S. Court of Appeals for the District of Columbia.

Barrett graduated first in her class at Notre Dame Law School and was a professor who focused on statutory interpretation and judicial precedents.

If confirmed, Barrett would be the only justice with a degree from a law school other than Harvard or Yale, and she would bring a perspective of being raised in the South and living in the Midwest. She is a mother of seven children ranging in age from 8 to 19, including one who has special needs and two adopted from Haiti, and she would become the first mother of school-age children to serve as a justice.

“In every respect, Judge Barrett is an inspiring role model for young people, and I could say as the father of two daughters, of young women in particular, who are pursuing their professional and personal ambitions with equal vigor,” Texas Republican John Cornyn, a Judiciary Committee member, said this month on the Senate floor.

Republicans have moved to make her Catholic faith a centerpiece of the confirmation debate, repeatedly warning Democrats against questioning whether it would harm her ability to be fair. Some committee Democrats asked about that during her confirmation process in 2017 to be a judge on the U.S. Court of Appeals for the 7th Circuit, and some have indicated they would steer clear of religion this time.

On her judicial approach, Barrett laid it out plainly in the Rose Garden ceremony when she linked her approach to the law to that of the late Justice Antonin Scalia, a conservative icon who died in 2016. Barrett once clerked for Scalia at the Supreme Court.

“His judicial philosophy is mine too,” she said. “A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

Big issues, recent decisions

The committee’s Democrats will highlight expectations of what that judicial philosophy would mean for how she would rule on big issues, particularly health care, abortion rights and immigration.

In the past week, Democrats have voiced concerns that she would side with the Trump administration and a coalition of Republican-led states that have asked the Supreme Court to strike down the 2010 health care law that expanded insurance coverage to more than 20 million people, including popular provisions such as required coverage of preexisting medical conditions.

The Supreme Court hears oral argument on that case Nov. 10, and Democrats say Barrett’s academic article in 2017 that criticized Chief Justice John G. Roberts Jr.’s opinion in the case, which was the deciding vote to uphold the health care law in 2012, indicates she would be inclined to strike down the law.

Hawaii Democratic Sen. Mazie Hirono, a committee member, said on a press call this week that Barrett would vote to overturn Roe v. Wade, the 1973 case that established a constitutional right to abortion.

She and Illinois Democratic Sen. Tammy Duckworth, who had a child using in vitro fertilization process, also pointed to Barrett’s signing on to a 2006 anti-abortion newspaper advertisement led by a group that argues a critical step of the in vitro process should be criminalized.

Duckworth said that when she learned that, she “felt a deep knot of dread and anguish in the pit of my stomach,” and that if a case on that issue came to the court, “millions of families like mine would not be able to trust that her opinions would be based on facts, laws and the Constitution rather than swayed by her own personal beliefs.”

Barrett, like other Supreme Court nominees before her, is likely to deflect questions about such topics by saying that they may come up before her if she is confirmed. She also is likely to decline to give a thumbs-up or thumbs-down on the Supreme Court’s prior decisions.

But Democrats will delve into Barrett’s record on the U.S. Court of Appeals for the 7th Circuit, where she ruled along GOP party lines on some of those topics.

Derek Muller, a University of Iowa law professor and former student of Barrett’s, said the judge has a calm professional demeanor and will go into the confirmation hearing with both eyes open about how rough such hearings can be for the nominee.

“She’ll explain the cases and explain why she came out the way she did, and she’s already thought through them and defended them,” Muller said.

“It’s, I think, not going to be a situation where it will be easy to knock her off her balance or get her angry. I think she’s going to take all the questions in stride and, I think, project as much of that typical calm exterior as she can in front of millions of Americans.”