WASHINGTON — Less than a month after President Donald Trump announced Judge Amy Coney Barrett as his latest US Supreme Court nominee, Republicans the Senate Judiciary Committee voted on Thursday to approve her nomination, setting the stage for a final vote early next week, as Democrats boycotted the proceedings.
Democrats did not attend Thursday’s committee vote, calling it “illegitimate.” They’ve objected to Trump and Republicans racing to fill a vacancy so close to a presidential election, after the party blocked former president Barack Obama’s nomination of Merrick Garland because it was an election year.
Republicans are poised to confirm Barrett just before Election Day — something that Trump has said is the driving force behind the rush to fill the late justice Ruth Bader Ginsburg’s seat. Lawsuits over how states are handling mail-in voting during the coronavirus pandemic are still working through the courts. Trump, who has pushed unsupported and debunked claims of widespread voter fraud related to absentee ballots, has predicted more legal fights around the election, saying that he is “counting on” the Supreme Court to “look at the ballots.”
The Senate Judiciary Committee’s 12 Republican members all voted in favor of Barrett’s nomination, one week after her confirmation hearings concluded; the absent Democrats were recorded as “no votes.” It’s been more than 40 years since the Senate moved a Supreme Court nominee so swiftly through the confirmation process.
The Thursday vote appeared to break the committee’s own rules, which require at least nine members present, including two members of the minority party, in order to do business. The Senate’s rules generally state that committees can’t vote without a majority of members present, but don’t specify when minority members have to be there; the Judiciary Committee did have a majority of members there for the Barrett vote on Thursday. According to a spokesperson for Senate Majority Leader Mitch McConnell, there are "longstanding precedents" that allow the committee to send nominations to the floor without two members of the minority party present as long as a majority of members are there, and that's happened seven times over the past 15 years.
“That was their choice. It will be my choice to vote the nominee out of committee. We are not going to allow them to take over the committee,” Graham said on Thursday. Addressing his fellow Republican colleagues, he said he hoped they feel like a sense of accomplishment. This is why we all run. It is moments like this that make everything you go through matter."
Democrats and liberal groups have vigorously opposed Barrett’s nomination, raising dire warnings about Barrett’s record on abortion, the Affordable Care Act, LGBTQ rights, the Second Amendment, immigration, and a range of other hot button subjects that the court could rule on in the future. On Thursday, they left placards behind their empty committee seats with photos of people who rely on the Affordable Care Act and its preexisting conditions.
If confirmed, Barrett — a judge on the US Court of Appeals for the 7th Circuit since 2017 — would deepen the court’s conservative majority to 6–3. Chief Justice John Roberts Jr., a George W. Bush appointee, has joined with the court’s liberal-leaning justices in ruling against Trump and Republicans in high-profile cases in recent years, and Democrats fear Barrett’s confirmation will make it even less likely that the liberals can piece together a majority going forward.
A voting case out of Pennsylvania offered a recent example of the type of scenario that Democrats are worried about. On Monday, the court denied a request by Pennsylvania Republicans to ban state officials from counting absentee ballots that arrive after Election Day. The Pennsylvania Supreme Court had ordered election officials to accept ballots through Nov. 6 and the ruling only remained intact because of a 4–4 tie in the higher court. Roberts joined the three remaining liberal-leaning justices in voting against Republicans’ request to undo the ruling.
During her confirmation hearing last week, Democrats pressed Barrett to commit to recusing herself from election-related cases, given Trump’s comments about wanting a ninth justice in place by Election Day. Barrett said it wouldn’t be appropriate for her to predict what she’d do in advance, and that it would depend on the circumstances of a particular case.
“I commit to you to fully and faithfully applying the law of recusal. ... I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not,” she told the senators.
Democrats have also focused on the fact that the Supreme Court is scheduled to hear arguments on Nov. 10 in the latest challenge to the Affordable Care Act. Republican attorneys general and the Trump administration are arguing that when Congress repealed the tax penalty for the individual mandate in 2017, it invalidated the entire law. As a law professor, Barrett wrote critically about previous Supreme Court decisions that upheld the law. At her confirmation hearing, she declined to say how she would rule.
Updated with comment from Senate Majority Leader Mitch McConnell's office.