Supreme Court nominee Amy Coney Barrett’s confirmation hearings this week offer President Donald Trump and Senate Republicans one of their final chances before the election to shift the fall agenda away from the coronavirus pandemic and toward an issue they believe is more politically beneficial: solidifying a conservative majority on the nation’s high court.
But reminders of COVID-19 will be inescapable.
The mere circumstances of the confirmation hearing—usually a packed affair on Capitol Hill that draws hundreds of supporters, protesters and observers—will be bare-bones, with rigorous social-distancing guidelines in place to avoid transmission among the few allowed inside the Hart Senate Office meeting room. At least two members of the Judiciary Committee will participate in the proceedings remotely, after being diagnosed with the novel coronavirus or to protect themselves from COVID-19, the illness it causes.
And Democratic senators, realizing that their most potent weapon against Barrett is a sustained attack on how the appeals court judge may rule on the Affordable Care Act, have crafted a strategy narrowly centered on health care and efforts to paint Republicans as recklessly rushing to confirm Barrett as the pandemic continues to consume the nation.
“We are all agreed on two starting points: One is the importance of the Affordable Care Act,” Sen. Dick Durbin of Illinois, the No. 2 Democratic senator and member of the Judiciary Committee. “And secondly, the extraordinary effort to drop everything—COVID-19 relief and any other consideration by Congress—to focus exclusively on filling this Supreme Court vacancy.”
A Supreme Court nomination hearing touches on a panoply of legal and policy issues that may come before the justices. But this time around, Democratic senators will have a much tighter focus, each drilling Barrett with questions about the legality of the Affordable Care Act and telling stories of constituents who have benefited from Barack Obama’s signature health care law, according to Democratic aides who, like others, spoke on the condition of anonymity to describe the strategy.
Democratic senators on the committee have held at least four conference calls in the past week to fine-tune their Barrett strategy, while Senate Minority Leader Chuck Schumer, D-N.Y., has spoken regularly with Sen. Dianne Feinstein of California, the committee’s ranking Democrat.
Schumer, in a Sunday news conference, demanded that Barrett recuse herself from a major case on the fate of the Affordable Care Act set for oral arguments on Nov. 10.
“Justice Barrett’s record and previous public statements clearly indicate that she would vote to strike down the ACA and overturn Roe,” Schumer said, also referring the landmark Roe v. Wade case that legalized abortion. “Nothing in her opening statement allays that concern.”
Republicans have noted that Justice Elena Kagan did not recuse herself in key cases on the Affordable Care Act, even though she was solicitor general for the Obama administration when the law was enacted and would have been in a position to defend its legality in court had she stayed in that position. Kagan testified in her hearings that she was not involved in preparations for legal challenges that the health-care law may have faced while she was solicitor general.
With their health-care strategy, Democrats also hope to exploit divisions among the dozen Republican senators who sit on the committee, who have diverging views and political imperatives on how they are positioning themselves on health care.
This group includes Sens. Thom Tillis, R-N.C., Joni Ernst, R-Iowa, and John Cornyn, R-Texas, whose Democratic challengers have hammered them on their support for repealing Obamacare and put them on the defensive over the issue of insurance coverage for people with preexisting medical conditions, as well as Republican senators such as Mike Lee, R-Utah, who is ardent in his view that the entire law is unconstitutional.
Republicans plan to pivot away from the Democrats’ questions on health care by noting that one can never predict how a justice may rule on the court, and that they aren’t seeking particular policy outcomes from any one jurist.
“Obviously President Trump says a whole bunch of things, and so he may say something that’s more outcomes-based,” Sen. Ben Sasse, R-Neb., said on “Fox News Sunday.” “But for those of us who sit on the committee or those of us who are making the judgment about how we’ll vote in the United States Senate on Amy Barrett’s nomination and her ultimate confirmation, is because of how she spells out what the job of a judge is. And that is not outcome-based.”
That is a message Barrett plans to stress in her opening remarks. In a copy of her prepared statement obtained by The Washington Post, Barrett will echo the philosophy of her mentor Justice Antonin Scalia and tell the committee that the “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,” Barrett will say. “The public should not expect courts to do so, and courts should not try.”
There is already a concern among Republican senators that other issues are swiping attention away from Barrett’s likely confirmation and the 6-3 conservative majority on the Supreme Court that the GOP may help solidify. On a heated conference call Saturday with top administration officials who briefed GOP senators on a pending coronavirus stimulus offer from the White House, Lee protested that an agreement may not only interfere logistically with getting Barrett confirmed before the election but take the focus away from what would be a major achievement for the Senate Republican majority and the White House, according to two people familiar with his remarks.
On the flip side, a tension point that Republicans hope to exploit are any references from Democrats that directly reference, even tangentially, her faith.
GOP senators such as Sasse and Josh Hawley of Missouri are expected to lead the charge to defend Barrett if Republicans believe comments from Democrats veer remotely near her Catholicism and religious views.
Democratic aides said their senators are united in their view that they will not press Barrett about her beliefs—hoping to avoid the mishap from her circuit court confirmation hearing in 2017, when Feinstein told Barrett that “the dogma lives loudly within you.”
But Republicans say they view any reference to her personal opposition to abortion as an attack on her religious convictions. Barrett’s antiabortion stance is well-documented; in 2006, Barrett signed her name to an Indiana newspaper advertisement in the South Bend Tribune that denounced the “barbaric legacy” of Roe vs. Wade and called for it to be overturned. She was a law professor at the University of Notre Dame at the time, where she was also a member of Faculty for Life.
In supplemental documents released by the Judiciary Committee late Friday, Barrett also disclosed her signature on an advertisement by the faculty group in Notre Dame’s student newspaper that “reaffirm[ed] our full support for our University’s commitment to the right to life.”
“Any time they raise a question about Roe vs. Wade, her paper on recusals, federal judges on death penalty cases, that’s all going to be implicitly connected to her faith,” said one GOP official, speaking on the condition of anonymity to describe party strategy. “That’s going to come up, and that’s going to exercise the Republicans.”
Separate from arguments about Barrett, Democrats and Republicans have been battling ahead of the hearing on safety protocols about holding such high-profile proceedings amid a pandemic that had temporarily sickened or sidelined at least four of its GOP members on the committee. Adding to the tension is that several people who attended the White House event where Trump introduced Barrett have contracted the coronavirus, leading some to call it a superspreader event.
Aides to Sen. Lindsey Graham, R-S.C., the committee’s chairman, released a letter from the Architect of the Capitol, certifying that the hearing has been designed to meet public health protocols. Graham has also said any member of the committee who wants to participate remotely may do so.
One of them will be Sen. Kamala Harris, D-Calif., the Democratic vice-presidential nominee whose spokesman said Sunday that she would appear virtually from her Senate office, accusing Republicans of refusing to take “commonsense steps to protect members, aides, Capitol complex workers and members of the media.”
Tillis, who was diagnosed with COVID-19 and had attended a White House event for Barrett, said last week that he was improving but that he would join via video for at least the first day.
Democrats called on Graham to require coronavirus testing for all senators in advance, but he declined. He said in an interview on Fox News on Sunday that he was tested last week and was negative for the virus.
“I think they are looking for anything to delay things even a day or two or three,” Sen. Ted Cruz, R-Texas, another member of the committee, said of Democrats on NBC’s “Meet the Press.” “We’ve managed to have hearings for months in a way that has been safe and has protected everyone’s safety.”
A team of lawyers from the Justice Department, as well as White House counsel Pat Cipollone and deputy counsel Kate Comerford Todd, have led mock hearings to help prepare Barrett for the hours of questioning this week, according to a White House official.
She will be introduced by her home-state senators, Sens. Todd C Young and Mike Braun, both R-Ind., as well as Patricia O’Hara, the former dean of the law school at the University of Notre Dame, who hired Barrett at the school nearly two decades ago.
The first day will consist of opening statements of about 10 minutes each from all 22 senators on the committee, as well as Barrett’s introduction and her remarks. Tuesday will be the first round of questioning, with each senator getting 30 minutes with Barrett. Wednesday will include any subsequent rounds of questions, and the final day will consist of testimony from outside witnesses on Barrett’s qualifications and character, as well as her potential impact on the court.