Senate Judiciary members sharply criticized each other during the opening day Monday of the confirmation hearings for Supreme Court nominee Amy Coney Barrett, who now faces a long day of questions on her legal views and previous judicial decisions.
With 10 minutes each to make a statement on President Donald Trump’s consequential pick who would further solidify the Supreme Court’s conservative tilt, Democrats and Republicans firmly established their main strategies for a week of hearings that appeared poised to collapse into partisan sniping.
Democrats used their time to focus relentlessly on the policy implications of Barrett’s appointment, particularly the potential for the Supreme Court to wipe out the 2010 health care law in a case backed by the Trump administration and set for argument Nov. 10.
And Senate Judiciary Chairman Lindsey Graham and other Republicans criticized Democrats for focusing not on Barrett’s qualifications, but on the decisions they fear she might vote to deliver.
At times, both sides got unusually personal.
Many Democrats set up photos of people who would lose insurance coverage if the Supreme Court undid the health care law, and spoke about their illnesses, lives and hobbies. Hawaii Sen. Mazie K. Hirono even brought up her own cancer diagnosis in a bid to prompt a Republican colleague or two to halt the process.
“This can be a moment, Mr. Chairman, for you and your Republican colleagues to show the American people terrified about losing their health care the same care and compassion you showed me and continue to show me when I was diagnosed with cancer,” Hirono said.
“Do the right thing,” she later added.
Democrats criticized Republicans for speeding a hearing just three weeks after the death of Justice Ruth Bader Ginsburg, in the middle of the coronavirus pandemic when two members of the committee tested positive for COVID-19 within the past two weeks.
Rhode Island Sen. Sheldon Whitehouse called the hearing an “unseemly charade.” Minnesota Sen. Amy Klobuchar called it a “sham,” and asked voters to go to the ballot box to respond.
Delaware Sen. Chris Coons called it “wrong” and “hypocritical” to proceed when four years ago Republicans had blocked President Barack Obama’s nominee to the high court because that vacancy arose in an election year.
Illinois Sen. Richard J. Durbin put Barrett’s decision to accept the nomination in the context of the president who picked her.
“You have been nominated by a president who shows contempt for the Constitution, but does not hesitate to tell his loyal followers that you are being sent to the bench to do his political chores: Abolish the ACA, rule in his favor on any election contest, and even more,” Durbin said. “You cannot feel good about a president cheapening this historic moment.”
Republicans, with their time, largely avoided how she might rule and criticized Democrats for focusing not on her qualifications but on the legal outcomes they expect from a Justice Barrett on a health care case and other issues. Texas Sen. John Cornyn called it “outrageous” that Democrats accuse her of violating her judicial oath and “guarantee a result in a case as a quid pro quo for your confirmation.”
Nebraska Sen. Ben Sasse called it “wrong” to politicize the courts by having judicial nominees pre-commit to certain outcomes in future court cases. “That is a violation of our oath to the Constitution,” he said of the Democrats’ approach.
The next Republican to speak, Missouri Sen. Josh Hawley, previously had said he wouldn’t vote for a nominee who didn’t publicly criticize Roe v. Wade, the 1973 landmark ruling that first established a constitutional right to abortion.
But Hawley focused his statement Monday on what he called a “pattern and practice of religious bigotry” from Democrats on the committee, whom he accused of using Barrett’s religious faith to attack her confirmation to the bench.
Among his targets was Coons, who had said he questioned whether Barrett might seek to overrule an older Supreme Court case that protected the rights of married couples to purchase and use contraception.
“Which I can only assume is another hit at Judge Barrett’s religious faith, referring to Catholic doctrinal beliefs,” Hawley said. “I don’t know what else it could be since nobody’s challenged this case, it’s not a live issue and hasn’t been for decades.”
Coons, who leads a weekly Senate prayer group and has co-chaired the National Prayer Breakfast, did not respond further when asked by reporters in the hallway afterward. “I’m not going to help Sen. Hawley run for president,” he said.
Confirmation almost assured
But all of the drama didn’t change the lack of drama around the ultimate fate of Barrett’s nomination.
Graham, at the start of the hearing, had called on members to be respectful during what would be a “long, contentious week” that isn’t expected to derail Republican plans to send Barrett’s nomination to the floor as soon as Oct. 22.
“This is probably not about persuading each other,” Graham said. “Unless something really dramatic happens, all Republicans will vote yes and all Democrats will vote no.”
The pandemic and the South Carolina Republican’s hurry to hold hearings created a bit of history Monday, with additional health safety precautions and senators allowed to appear remotely. That severely limited how many members of the public and media could attend in person.
North Carolina Republican Thom Tillis appeared remotely after his positive test for COVID-19. He criticized Democrats for focusing on the Supreme Court possibly wiping out the 2010 health care law and the protections for people with preexisting conditions.
“This week, they’ll attempt to have Judge Barrett commit to policy outcomes rather than do the work for that policy outcome in the U.S. Senate,” Tillis said.
In that case, Democrats want the justices to leave in place a law that Congress passed a decade earlier.
Sen. Mike Lee, R-Utah, attended the hearing in person and spoke without a mask even though he announced he had tested positive for COVID-19 less than two weeks earlier. Before it started, he told radio host Hugh Hewitt that he was no longer contagious and got approval to attend from a Senate medical office.
And Lee said the health safety measures the Judiciary panel took for the hearing had a side benefit of making it much harder for protesters to get into the hearing room, as they had done for Justice Brett M. Kavanaugh’s hearing.
“So it’s not as though people are going to be able to get away with the anonymity that is required to stand up and shout horrible things in order to disrupt the proceedings,” Lee told Hewitt.
California Sen. Kamala Harris, the current Democratic vice presidential nominee, criticized Graham for holding a hearing when two members had tested positive and the Senate had otherwise shut down legislative action, including on another coronavirus relief bill.
“This hearing should have been postponed,” said Harris, who participated remotely from her Senate office. “The decision to hold this hearing now is reckless and places facilities workers, janitorial staff, congressional aides and Capitol Police at risk.”
Whitehouse, in a conference call with reporters Monday morning, hinted that his questions would focus on who Barrett was sending signals to with her past legal analysis on the 2010 health care law and her statements about how much to respect earlier Supreme Court decisions.
“Whatever goes on in the hearing room in the next few days is very like looking at a puppet theater. If you only look at what’s happening on the stage, you’re missing most of the story,” Whitehouse said. “Yes, they’re real. Yes, you should cover them. But that’s not the end of the story.”
Day Two of the hearing, expected to last more than 10 hours, starts at 9 a.m. Tuesday.