The Senate’s escalating partisan tug-of-war over judicial confirmations has frayed relationships in the chamber for decades, but Thursday’s committee vote on Supreme Court nominee Amy Coney Barrett threatens to sever the rope.
The vote is expected to unfold as it did for previous judicial nominees in the President Donald Trump era. Democrats alone don’t have the votes to stop Republicans from advancing Barrett’s nomination to the floor, or the final confirmation vote slated for Monday.
Democrats on the Senate Judiciary Committee announced Wednesday afternoon that they would boycott the hearing. They say Republicans violated panel rules in a rush to complete the process before the Nov. 3 conclusion of the election.
“We will not grant this process any further legitimacy by participating in a committee markup of this nomination just twelve days before the culmination of an election that is already underway,” Senate Minority Leader Charles E. Schumer said in a news release.
And committee Democrats have leveled unusually sharp and personal criticism at Republicans this time. Connecticut Democratic Sen. Richard Blumenthal accused Judiciary Republicans of a violation of the Senate’s most important unwritten rule: keeping your word.
Republicans said they blocked President Barack Obama’s nominee for nine months ahead of a presidential election four years ago to let voters have a say in who should fill the vacancy, but they now have rushed the process for a vote on Barrett just days ahead of the Nov. 3 presidential election.
“You are breaking that word,” Blumenthal said during last week’s committee meeting. “And with all the rhetoric about precedent and history, and everything else, and about the wrong direction the Senate is going, in essence you’re taking another step in that direction.”
Democrats and their allies are sending signals that anything less than a no-holds-barred judicial confirmation fight will not do anymore. Sen. Dianne Feinstein of California, the committee’s top Democrat, criticized the rushed Barrett process as breaching “everything we hold dear” at the committee and said it would “create a lot of bad will that doesn’t need to be created.”
But Feinstein later made the kind of comments that once were somewhat routine in the Senate. She thanked Chairman Lindsey Graham for his fairness — “It leaves one with a lot of hopes, a lot of questions, and even some ideas of some good bipartisan legislation we can put together to make this great country even better,” Feinstein said — and later gave him a hug.
Demand Justice, a liberal advocacy group, called for her removal from her committee leadership role for treating “the Republican theft of a Supreme Court seat with kid gloves.” Some Democratic senators in hallway interviews and news conferences stopped short of giving Feinstein full backing.
Missouri Republican Sen. Josh Hawley, a committee member, told CQ Roll Call that Democrats and their allies “wanted her to try and burn Amy Barrett at the stake. They want someone who’s going to be a vicious partisan.”
While Feinstein may be correct that there are still opportunities for bipartisanship on legislation, judicial confirmations are a different story.
Hawley, like Graham and other Republicans, justify their actions based on how Democrats have attacked Trump’s three nominees to the Supreme Court, particularly the accusations of a decades-old sexual assault against Justice Brett M. Kavanaugh that led to his vigorous denials of it.
“Democrats have consistently done this, and so I don’t know where it leaves us going forward,” Hawley said. “And I think it tells you that confirmation hearings are going to be contentious. And I imagine if there’s a President Biden someday, that you know he can expect very contentious confirmation hearings for his judges.”
Graham pointed to the Kavanaugh hearing as the reason he reversed course on his position to not confirm Supreme Court justices in an election year, as well as the 2013 move from Democrats to get rid of a procedural hurdle that required 60 votes on the floor to advance lower court nominees.
The South Carolina Republican, who is in a tightening race for reelection, said last week that he might abandon his approach to voting on Supreme Court justices based on their qualifications and not their apparent positions on legal issues.
“I'll have to reevaluate where I am,” Graham said. “I want to be fair, but it’s kind of silly to play a game nobody else is playing.”
Illinois Democratic Sen. Richard J. Durbin recalled how the Senate once confirmed liberal Justice Ruth Bader Ginsburg and conservative Justice Antonin Scalia with overwhelmingly bipartisan votes.
“I don’t know how we get this train back on the track. But this nomination at this moment in time is not usual, not normal, and it’s beneath the dignity of this committee,” Durbin said.
When McConnell moved forward with Barrett’s nomination so close to a presidential election, Durbin said, “it was clear that all bets were off. We are going for this nominee at any price, at any cost. And one of them is the integrity of this committee.”
Graham has raised similar concerns about the partisan votes on Supreme Court nominees, but he blamed Democrats for focusing on policy fights during confirmation rather than the nominee’s qualifications.
Traditions by the wayside
The Barrett nomination comes on the heels of other changes to traditions and norms of the Senate’s judicial confirmation process in the past four years that have allowed Republicans to fill the nation’s appeals courts with Trump nominees at a record pace. Republicans, for example, ended a Senate rule that would require a Supreme Court nomination to get 60 votes to proceed to a confirmation vote.
Committee Democrats appear to have no appetite for reinstating those if Democrats take control of the Senate in the next Congress that starts in January. And even Delaware Democratic Sen. Chris Coons, known for reaching across the aisle to help maintain Senate courtesy, has signaled that Barrett’s confirmation could lift reservations about proposals such as adding justices to the Supreme Court.
“Like Joe Biden, I’m not a fan of expanding the court, but we have a few weeks here to see whether there are four Republicans who will step back from this precipice,” Coons told CNN on Sunday. “If we happen to be in a fact pattern where we have a President Biden, we’ll have to look at what the right steps are to rebalance the federal judiciary.”
And Rhode Island Democratic Sen. Sheldon Whitehouse hinted at last week’s confirmation hearing for Barrett that pleas from Republicans to not use their power would not resonate.
“There are Republican members on this committee of whom I am very fond. But 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 to come to us and say, ‘Yeah, I know you can do that. But you shouldn’t, because of X, Y, or Z,’” Whitehouse said.
“Your credibility to make that argument, at any time in the future, will die in this room and on that Senate floor if you continue to proceed in this way,” Whitehouse said.
Whitehouse this week said there probably is a way to repair the relationships at the Senate Judiciary Committee after this. “But the problem with rule-breakers is that it’s hard to trust them that they’d follow the new rule that you agreed to,” Whitehouse said. “So it’s not going to be an easy task.”
New Jersey Democratic Sen. Cory Booker said Wednesday that Republicans would pause Barrett’s confirmation process now “if they listen to their conscience and what was right.”
“This is a time that they should be showing the restraint of power. This is the time that they should be waiting and trusting the American people,” Booker said. “This is the time that they should be doing what is right.”
Jennifer Shutt contributed to this report.