Familiar partisan battle lines spilled out during the first day of Amy Coney Barrett’s Supreme Court confirmation hearing before the Senate Judiciary Committee on Monday, with an aura of inevitability hanging over what both parties expect is her ultimate elevation to the high court.
Republicans argued for Barrett’s qualifications — the American Bar Association rated her “well qualified” for the late Justice Ruth Bader Ginsburg’s seat — and tied Democratic opposition to animus against her Catholic faith. Democrats criticized the committee for holding the hearing at all before the election and the implications of her confirmation for health care, abortion and other issues.
Outside the hearing room, which was closed to the public because of the COVID-19 pandemic, scores of protesters — with 21 arrested by Capitol Police, according to a spokesperson — withstood persistent drizzle to make their positions heard.
Protesters sat outside of a key entrance to the Dirksen Senate Office Building. “No Covid Test, No Hearing,” read one sign. Other protesters, wearing head-to-toe paper jumpsuits and yellow gloves, held signs demanding, “Trump/Pence Out Now.” And at least three protesters wore rainbow-colored vests emblazoned with “clinic escort,” volunteers who escort patients at clinics past anti-abortion access protesters and into the building for care.
Supporters of Barrett were also out in force, with pink “Women for Amy” and “Confirm Amy” signs, outnumbering the anti-Barrett contingent at more than one doorway where demonstrators were gathered.
Given the politics surrounding Barrett's nomination, which would give conservatives a 6-3 majority on the court, Chairman Lindsey Graham, R-S.C., acknowledged the battle will be contentious. But he appeared confident his panel had the votes to move her nomination to the floor.
“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.”
Graham, who is facing a tough reelection bid, and other Republican leaders have put Barrett on the path for a Senate vote before the Nov. 3 election. Republicans hold 53 seats and will likely require no Democratic votes to confirm her.
Democrats like Vermont Sen. Patrick J. Leahy argued Barrett’s confirmation violates a standard Republicans set by ignoring the nomination of Merrick Garland to the Supreme Court in 2016. Barrett’s confirmation, Leahy said, may decide the future of the 2010 health care law known as the Affordable Care Act, which is set for Supreme Court argument the week after the election.
Democrats are "scared that the clock will be turned back to a time when women had no right to control their own bodies, and when it was acceptable to discriminate against women in the workplace,” Leahy added.
Throughout the hearing Democrats, including vice presidential nominee Sen. Kamala Harris of California, emphasized what impact a Justice Barrett may have on health care and other major issues before the court.
“I do believe this hearing is a clear attempt to jam through a Supreme Court nominee who will take health care away from millions of people during a deadly pandemic that has already killed more than 214,000 Americans,” Harris said.
They also reiterated the health care positions of Republican members of the panel facing reelection next month, such as Sens. John Cornyn of Texas, Thom Tillis of North Carolina and Joni Ernst of Iowa.
Sen. Sheldon Whitehouse of Rhode Island said Cornyn is so closely associated with the Supreme Court case over the Affordable Care Act that he' s just a “hop, hop, hop" away, pointing to his opposition to the law, briefs filed against the law in the case and the fact that the district judge in the case served as a staffer.
Republicans tied Democratic criticism of Barrett to Justice Brett M. Kavanaugh’s 2018 confirmation hearings, and highlighted the criticism of her religious views. Sen. Josh Hawley, R-Mo., argued even discussing the 1965 Griswold v. Connecticut Supreme Court case on contraceptives constituted an attack on Barrett’s faith.
“That is an attempt to bring back the days of the religious test. That is an attempt to bring back the veto power of the powerful over the religious beliefs, and sincerely held convictions of the American people and that is what is at stake in this confirmation hearing,” Hawley said of Democrats’ questions.
Cornyn argued Democrats doubt Barrett’s ability to uphold the law.
“You stand accused of intending to violate your oath before you even take it,” said Cornyn, who is facing a well-funded challenger in his own reelection bid. “Further, our Democratic colleagues want you to guarantee a result in a case as a quid pro quo for your confirmation. It's outrageous.”
The panel will begin questioning Barrett on Tuesday. But in her opening statement, Barrett steered clear from the policy arguments in the hearing and presented herself as a justice who would hew to the text of the Constitution and statute, even if it resulted in a decision with which she disagreed.
"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 said.
She was joined in the hearing room by her husband and seven children, who were escorted out of the hearing room about 90 minutes into the proceedings.
White House Chief of Staff Mark Meadows and White House Counsel Pat Cipollone were seated to the left of the family.
Utah Republican Sen. Mike Lee, who was diagnosed with COVID-19 less than two weeks ago, attended the hearing in person and gave his opening statement without wearing a mask.
Lee has not confirmed that he has tested negative, but was “cleared” by the Capitol’s attending physician to attend. Lee tweeted out the letter from Dr. Brian Monahan, dated Oct. 12, that asserts the Utah Republican met the CDC’s criteria of more than 10 days since symptom onset and no fever in 24 hours. Lee left the hearing room shortly after his statements.
Harris was not in the room, due to concerns about COVID-19 protocols and fellow senators, like Lee, who chose to appear despite recent illness or potential exposures.
As Harris began, the audio echoed terribly and the video was not working. Graham interrupted her to allow for the issue to be sorted out and used the time to squeeze in a belated pleasantry for his colleague, fresh off the campaign trail.
"Congratulations on being on the ticket, I haven't told you that yet," the chairman said. When Harris appeared on the screen in the hearing room, she began again. The echo had been handled but her audio was tinny and scratchy.
Graham, along with Iowa Republicans Charles E. Grassley and Ernst, removed their masks upon arrival at their seats. Other lawmakers kept their masks on, but removed them to give their statements.
Towards the end of the opening day, Graham said the Architect of the Capitol confirmed the hearing room met the social distancing and other safety requirements set by the Centers for Disease Control and Prevention. He also said he had tested negative for COVID-19 about 10 days ago.
California Sen. Dianne Feinstein, the committee's top Democrat, put her mask on as she approached the hearing room and media stakeout area. The California Democrat usually dons a mask as she approaches a concentration of people around Capitol Hill, but traverses the hallways and tunnels without a mask with her staff.
Todd Ruger contributed to this report.