U.S. Judge Amy Coney Barrett, who has been nominated to the U.S. Supreme Court, on Capitol Hill in Washington, September 30, 2020.
Sarah Silbiger | Pool | Reuters
Judge Amy Coney Barrett’s confirmation hearing begins Monday despite Democrats’ complaints that it could be unsafe because of Covid.
The hearings before the Senate Judiciary Committee will begin at 9 a.m. ET and last though Thursday.
Committee Chairman Sen. Lindsey Graham, R-S.C., has said he expects the committee to approve the 48-year-old judge by Oct. 22, giving Senate Majority Leader Mitch McConnell enough time to bring the nomination to the Senate floor before Election Day on Nov. 3.
The confirmation battle, set in the middle of the contentious election between former Vice President Joe Biden and President Donald Trump, has so far lacked the theatrics of the last fight over a Supreme Court nominee.
But the consequences could prove dramatic, as Trump aims to solidify a 6-3 conservative majority on the country’s highest court. Barrett was nominated to replace Justice Ruth Bader Ginsburg, who served for nearly three decades on the Supreme Court and became its most senior liberal justice.
Barrett is expected to speak at the end of the day Monday. In prepared remarks, the judge focuses on her family, introducing the Judiciary Committee to her seven children and her husband, Jesse.
She also praises Ginsburg and her judicial mentor, Justice Antonin Scalia, with whom she has said she shares a philosophy. Ginsburg and Scalia were close friends but ideological opposites.
Barrett also expressed her view that courts should avoid making policy decisions and value judgments, which she said in her prepared remarks that they “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,” she said.
Looming over the confirmation is Ginsburg’s final wish that she not be replaced until after the election, which Biden and his congressional allies have called on Republicans to heed. In her prepared remarks, Barrett did not address Ginsburg’s dying statement, but did share kind words about the late justice.
“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place. I will be forever grateful for the path she marked and the life she led,” Barrett said.
Supreme Court nominee Judge Amy Coney Barrett arrives to her Senate Judiciary Committee confirmation hearing, walking past on monitor showing Chairman Sen. Lindsey Graham (R-SC), on Capitol Hill on October 12, 2020 in Washington, DC.
Win McNamee | Getty Images
Pivotal issues
While Barrett’s confirmation to the bench would likely shift the law rightward on many high-profile issues, Democrats are expected to focus on Barrett’s past statements related to abortion and the Affordable Care Act.
Recently, Democrats criticized Barrett for failing to disclose her participation in a 2006 newspaper ad that called for overturning Roe v. Wade, the landmark abortion decision. Barrett, a devout Catholic, belonged to Notre Dame’s “Faculty for Life” anti-abortion group but has said her personal views do not influence her interpretation of the law.
Democrats have also seized on Barrett’s 2017 comments in a book review criticizing Chief Justice John Roberts’ reasoning in a case that upheld the landmark health-care legislation. Barrett wrote that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
The top court will again consider the constitutionality of the law this term.
Potential for drama
Questioning by senators are scheduled for Tuesday and Wednesday. One senator who will be in the spotlight will be Sen. Kamala Harris, a deft interrogator and the Democratic vice presidential nominee. Harris will be attending the hearings remotely, according to a spokesperson.
“By moving forward with Supreme Court confirmation hearings tomorrow — less than 2 weeks after members tested positive — Chairman Graham and Senate Republicans are endangering the lives of not just members and our staff, but the hardworking people who keep the Senate complex running,” Harris wrote in a post on Twitter on Sunday.
U.S. Senator Mike Lee (R-UT), who recently tested positive for coronavirus disease (COVID-19), holds a pocket copy of the U.S. Constitution as he speaks during a Senate Judiciary Committee confirmation hearing on the nomination of Judge Amy Coney Barrett to serve on the U.S. Supreme Court on Capitol Hill in Washington, October 12, 2020.
Leah Millis | Pool | Reuters
Regardless of what happens at the hearings, it’s expected that all 10 Democrats on the committee will oppose Barrett and that the 12 Republicans will support her. Barring surprises, Barrett is expected to be confirmed by the full Senate.
Republicans hold a 53-seat majority in the 100-person chamber, and only two Republicans, Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowski, have expressed opposition to Barrett’s nomination.
One potential wrinkle that could emerge is the coronavirus.
The disease sickened two Republican members of the Judiciary Committee, Sens. Mike Lee of Utah and Thom Tillis of North Carolina, shortly after they attended Barrett’s White House nomination ceremony late last month. A third Republican senator, Sen. Ron Johnson of Wisconsin, tested positive shortly afterward.
While those senators are expected to recover in time to attend Barrett’s confirmation vote, if others come down with the virus, it could imperil Republicans’ slim margin.