WASHINGTON — Day one of the confirmation hearing for Judge Amy Coney Barrett, President Donald Trump’s third nominee for the US Supreme Court, gave Republicans and Democrats a national stage for a preelection airing of grievances — about the Trump presidency, Joe Biden’s presidential run, the coronavirus pandemic, the future of the Affordable Care Act, the failed Supreme Court nomination of Judge Merrick Garland, and the successful one of Justice Brett Kavanaugh.
Barrett’s rulings as a federal appeals judge, work as a law professor, and qualifications for the US Supreme Court largely took a backseat; she’ll face questions from Senate Judiciary Committee members beginning on Tuesday. But for the bulk of Monday’s hearing, she listened silently as members delivered opening statements focused less on her and more on old political spats, the pandemic, and the political maelstrom surrounding her nomination.
Democrats spent significant time highlighting the fact that Trump and Senate Republicans were moving to confirm Barrett for the late justice Ruth Bader Ginsburg’s seat, just in time for Nov. 10 arguments in the latest legal challenge to the Affordable Care Act. Democrats shared stories about constituents with serious medical conditions who had benefited from the ACA, pointing to large photographs displayed behind them on the dais.
As a professor at Notre Dame Law School, Barrett wrote an article that criticized Chief Justice John Roberts’s vote in favor of upholding the ACA in 2012. She is expected to face questions about that from Democrats, as well as about Roe v. Wade, the Supreme Court decision establishing the national right to abortion.
Democrats repeatedly called Republicans hypocrites, given Senate Majority Leader Mitch McConnell’s refusal to hold a hearing on Garland’s nomination in 2016. They blasted Republicans for trying to confirm a nominee less than a month before Election Day and after millions of Americans had already started voting by mail. Sen. Amy Klobuchar called the hearing a “sham” and framed her opposition to Barrett’s nomination as a broader rejection of Trump, bringing up his refusal to commit to a peaceful transfer of power after the election or to condemn white supremacists, his firing of government watchdog officials and senior law enforcement officials, and reports about him disparaging members of the military.
Sen. Patrick Leahy criticized the White House for holding a Rose Garden ceremony (likely a superspreader event) announcing Barrett’s nomination before Ginsburg had been buried.
“From that moment, this process has been nothing but shameful,” Leahy said.
Illinois Sen. Dick Durbin invoked Garland’s failed Supreme Court nomination, calling the push to confirm Barrett now “shameless.” Rhode Island Sen. Sheldon Whitehouse brought up Garland as well and said Barrett’s confirmation proceedings were a “mad, slapdash rush.”
“When they blocked Merrick Garland, we heard nonstop about the importance, before an election, of the American people weighing in at the ballot box — nonstop — that you shouldn’t have a nominee appointed to the court after the primary season had begun,” Whitehouse said.
Republicans defended going ahead with Barrett’s nomination after refusing to act on Garland, saying the difference was that the same political party now controlled the Senate and the White House. Sen. Lindsey Graham argued that holding a hearing 16 days after a nomination announcement was in keeping with historical practice. The last time a nominee took such a short amount of time to get before the Senate after being announced by a president was 1975, and the timelines for Supreme Court nominations have consistently been much longer over the last four decades.
On Monday morning, shortly before the hearing began, Trump tweeted what appeared to be a pitch to skip the hearing: “The Republicans are giving the Democrats a great deal of time, which is not mandated, to make their self serving statements relative to our great new future Supreme Court Justice. Personally, I would pull back, approve, and go for STIMULUS for the people!!!”
Graham acknowledged that the hearing was not about one party persuading the other — “all Republicans will vote yes and all Democrats will vote no,” he predicted. But he said it was still important to give both sides a chance to dig into Barrett’s record, and rebuffed what he described as calls from other conservatives to “ram it through.”
Sen. Kamala Harris, the Democratic vice presidential nominee, appeared by video and criticized Graham, the committee chair, for holding the hearing during the pandemic. She noted that the rest of the Senate's business had been paused for two weeks after three members — Republican Sens. Mike Lee and Thom Tillis, both members of the Judiciary Committee, and Ron Johnson — tested positive for the coronavirus.
“This hearing has brought together more than 50 people to sit inside of a closed-door room for hours while our nation faces a deadly airborne virus,” Harris said. “The decision to hold this hearing now is reckless and places facilities workers, janitorial staff, and congressional aides and Capitol Police at risk.”
Lee appeared in person for the hearing and shared a letter from the office of the congressional physician saying that he had satisfied the Centers for Disease Control and Prevention’s guidance for ending his self-isolation after his positive diagnosis. He, like most of the senators present, took his mask off while he was speaking Monday. Tillis appeared by video.
Barrett wore a face mask throughout the hearing except to sip water and when she delivered her opening statement at the end. The first day of Supreme Court confirmation hearings are a test of a nominee’s ability to listen to both attacks and praise without visibly reacting, a task made simpler by the fact that most of Barrett’s face was covered — committee members and the public could occasionally see her brow furrow.
Just as Democrats invoked Garland’s treatment in 2016, Republicans drew on the controversy around Kavanaugh’s nomination in 2018, when he was accused of sexual assault as a high school student, which temporarily brought his confirmation proceedings to a grinding halt. Texas Sen. John Cornyn called Democrats’ handling of the allegations against Kavanaugh, which the judge denied, an “absolute disgrace.” Louisiana Sen. John Kennedy called the Kavanaugh confirmation process a “freak show.”
Republican members brought up Biden’s refusal to comment on the campaign trail about whether he’d support “court-packing” — a proposal backed by some liberal groups to add seats to the Supreme Court if Barrett is confirmed — and whom he would consider nominating for the court if another vacancy opened up. Nebraska Sen. Ben Sasse lashed out at proposals not only to expand the size of the Supreme Court but also to get rid of the filibuster for legislation (a key tool for the minority party to block bills in the Senate), calling it “a partisan suicide bombing.”
No Democrat criticized Barrett’s Catholic faith on Monday, but Republicans made preemptive counterattacks, accusing Democrats and liberal advocacy groups of trying to make her religion an issue. Missouri Sen. Josh Hawley accused Delaware Sen. Chris Coons of going after Barrett’s faith by bringing up Griswold v. Connecticut, a 1965 Supreme Court decision that struck down a state ban on contraceptives, as an example of a precedent that could be in jeopardy with a stronger conservative majority; Coons, a Presbyterian, reportedly attends a Catholic church in Delaware.
“This is an attempt to broach a new frontier, to set a new standard. Actually, it’s an attempt to bring back an old standard that the Constitution of the United States explicitly forbids. I’m talking about a religious test for office,” Hawley said.
As for Democrats’ focus on the Affordable Care Act and other issues that liberals fear the Supreme Court will revisit with a deeper conservative majority, especially abortion rights, Republicans accused their colleagues of improperly trying to force Barrett to commit to policy positions.
“Democratic senators view the court as a super-legislature, as a policymaking body, as a body that will decree outcomes to the American people,” Texas Sen. Ted Cruz said.
In her opening statement, Barrett echoed some of the comments from Republican members about the role of the courts. She said she was shaped by the judicial philosophy of the late justice Antonin Scalia, whom Barrett clerked for.
Scalia’s “judicial philosophy was straightforward: A judge must apply the law as it is written, not as she wishes it were,” Barrett said.
She continued later in her remarks: “Courts have a vital responsibility to the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. 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.”