Millions of Americans have already cast votes ahead of the election, and democracy demands that one of the candidates on the ballot be the Democrats’ lead questioner at the confirmation hearing for Amy Coney Barrett that begins Monday.
Kamala Harris isn’t just a member of the Senate Judiciary Committee, which Republicans control and is rushing madly to ram through President Trump’s chosen replacement for the Supreme Court seat formerly held by Justice Ruth Bader Ginsburg. She is also one of the sharpest questioners on the committee, setting herself apart in the nearly four years she has been in the Senate. She has cross-examined everyone from Jeff Sessions to Brett Kavanaugh and William P. Barr.
Voters deserve a Senate hearing where a person aspiring to one of the nation’s highest elected offices gets an opportunity to hold to account an unelected judge nominated for a lifetime appointment on the Supreme Court. And a nominee whom Mr. Trump is depending on to throw the election to him if it ends up in court, and to give Republicans a generation of 6-to-3 decisions on contentious issues they cannot win legislatively, because their ideas are so unpopular.
This is about democracy. As Senator Harris herself observed during Wednesday’s vice-presidential debate, Republicans’ brute-force effort to confirm Judge Barrett as people head to the polls is an affront to voters. “We’re literally in an election,” she said. “Over 4 million people have voted. People have been in the process of voting now.”
Her running mate, Joe Biden, who once led the Senate committee on which Ms. Harris sits, echoed that sentiment on Thursday: “The election has begun. There’s never been a court appointment once an election has begun.”
That was precisely the Republican argument for denying Democrats a hearing for President Obama’s nominee, Merrick Garland, in 2016. Senator Harris asking Judge Barrett point-blank what she meant when she said that appointing Judge Garland would “dramatically flip the balance of power” on the Supreme Court would expose this hypocrisy — as well as Judge Barrett’s nakedly political assessment of the Supreme Court’s membership.
There is precedent in the Senate for a single woman, and a prosecutor at that, as Senator Harris once was, to lead the questioning during a Supreme Court confirmation hearing. Republicans set it in 2018, when they relied on what Mitch McConnell, the Senate majority leader, called “a female assistant” to help them examine allegations that Justice Brett Kavanaugh had, as a teenager, sexually assaulted Christine Blasey Ford.
Republicans sidelined that woman, Rachel Mitchell, after her performance proved ineffective. Senator Harris won’t have that problem, and the stakes are even higher now. Senator McConnell and Senate Republicans are barreling ahead to elevate Judge Barrett, all other legislative priorities be damned, including Americans’ urgent need for economic relief from the toll of the coronavirus. They’re under orders from Mr. Trump to prioritize her confirmation above all else.
That says as much about Republicans’ ambitions as Judge Barrett’s own. Senator Harris would be well positioned to press the nominee about her role in this crazed scramble to confirm.
For one, the public needs an accounting of Judge Barrett’s apparent willingness to expose herself, her family and many well-wishers to Covid-19 at the mostly maskless Rose Garden event celebrating her nomination at which several attendees, including Mr. Trump and his wife, may have contracted the disease. Among those infected were senators, presidential advisers and the president of the University of Notre Dame. Many of those who attended have since faced a backlash and some have expressed remorse for their own carelessness.
Senator Harris could easily lead a cross-examination that probes every detail of that reckless ceremony, which the government’s top infectious diseases expert, Dr. Anthony Fauci, labeled a “super spreader” event. Millions of Americans have forfeited or canceled weddings, family celebrations, even the opportunity to say goodbye to loved ones who succumbed to the virus. Does the judge feel any sense of responsibility for reveling at this coronavirus hot spot? What does she have to say to those people as she herself flouted guidelines that many have observed for their own health and safety? Does it weigh on her conscience? What does that say to the American public about her own judgment and prudence?
Surely other Democrats have their own questions for the nominee about her record as well — her views on Roe v. Wade, the Affordable Care Act and the scope of the Second Amendment, all issues where the judge’s views are deeply conservative and deserve a full airing.
She may also take the pressure off people like Senator Dianne Feinstein, who many Democrats believe botched Judge Barrett’s prior confirmation hearing for a seat on the U. S. Court of Appeals for the Seventh Circuit, and is ill-equipped to question her again, especially on matters related to the judge’s Catholic faith. As Senator Harris said during the debate with Mike Pence, “It’s insulting to suggest that we’d knock anyone for their faith.”
For the sake of democracy and the future of the Supreme Court, Senate Democrats would be doing a favor to voters and the nation by yielding most or all of their time to Senator Harris at Judge Barrett’s confirmation hearing.
Better yet would be if the hearing did not happen at all. But in the face of Republican intransigence, we all deserve a process where someone responsive to the electorate demands answers from someone who never will be.
Cristian Farias is a journalist who covers legal affairs.
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