At first, the opening confirmation hearing for Judge Amy Coney Barrett to the U.S. Supreme Court not only sounded like the senators were in different hearing rooms—some were, in fact, due to COVID-19 concerns—but like they occupied different political universes altogether.
In their opening remarks on Monday, each Democratic senator on the Senate Judiciary Committee cast the stakes of Barrett’s confirmation as nothing less than the fate of millions of Americans who could lose access to health insurance should Barrett join the high court and strike down the Affordable Care Act in a case to be heard on Nov. 10.
The top Democrat on the Senate Judiciary Committee, Sen. Dianne Feinstein (D-CA), swiftly set the tone. She spoke of a Californian, Christina Munro Garcia—pictured in a poster behind Feinstein—who benefitted from the ACA’s protections.
“We can’t afford to go back to those days when Americans could be denied coverage or charged exorbitant amounts,” said Feinstein. “That’s what’s at stake for many of us, for America, with this nomination.”
And nearly all GOP senators on the panel cast the confirmation fight as nothing less than a referendum on the fate of religious rights and pluralism in America today, invoking a smattering of remarks from Democrats such as Feinstein, who suggested that Barrett’s Catholic faith could influence her jurisprudence during her 2017 confirmation hearing to the federal bench.
Most aggressive was Sen. Josh Hawley (R-MO), who accused Democrats of attempting to establish a new “religious test” for jurists and officeholders. “The pattern and practice of bigotry from members of this committee must stop,” he said. Sen. Joni Ernst (R-IA) cast it another way: “It’s quite simple what your opponents are doing,” she said. “Attacking you as a mom and a woman of faith because they can’t attack your qualifications.”
And so it went across five hours in a socially distanced, partially virtual Capitol Hill hearing room, each 10-minute block of opening statements a different party’s preferred version of the political fight at hand.
At times, these worlds collided: Republicans, notably, attempted to reconcile their years of opposition to Obamacare with an insistence that the jurist handpicked by President Trump—a staunch opponent of the law—has not been sufficiently clear on whether she’d strike it down.
At other times, those worlds did not collide. Democrats were able to puncture the GOP reality simply by avoiding any discussion of Barrett’s faith and leaving Republicans to draw on older comments and general broadsides aimed at the media.
No matter what, Monday’s gabfest—dominated by pontification from 22 senators and very little from the nominee—was useful as a preview into each side’s strategy for the week ahead, and as a glimpse of how bitter these proceedings are set to be.
The last two Supreme Court battles, which cast a long shadow over Monday’s hearing, are a big reason why. At every turn, Democrats raised the GOP’s about-face on their 2016 argument to block President Obama’s final pick to the Supreme Court because it was too close to the election. Barrett, meanwhile, could be confirmed days before the Nov. 3 election, and was named as a nominee a week after Justice Ruth Bader Ginsburg had died.
“This is a charade when they say this is a normal Judiciary hearing for a normal Supreme Court nominee,” thundered an indignant Sen. Cory Booker (D-NJ). “There’s nothing about this that is normal.”
While GOP senators spent time trying to justify the about-face, they also vented flashes of lingering anger over the confirmation of President Trump’s last nominee, Justice Brett Kavanaugh. Sen. Marsha Blackburn (R-TN) accused Democrats of fabricating “unsubstantiated sexual assault allegations” against the judge and said we don’t have “the full story” about alleged “coordination” of the claims. “It was a freak show!” bellowed Sen. John Kennedy (R-LA).
The unprecedented backdrop for the hearing, meanwhile, provided another source of animus. Two GOP members of the committee, Sens. Mike Lee (R-UT) and Thom Tillis (R-NC), came down with COVID-19 after attending a Sept. 26 White House event to honor Barrett’s nomination—challenging the safety protocols put in place for Capitol Hill hearings. The committee’s chairman, Sen. Lindsey Graham (R-SC), gave members the option to appear remotely; Lee showed up in person, saying—and then releasing a letter proving—his doctor had cleared it.
“This hearing itself,” said Sen. Sheldon Whitehouse (D-RI), “is a microcosm of Trump’s dangerous ineptitude in dealing with the COVID pandemic.” Graham, meanwhile, insisted the whole thing was CDC-compliant, even as journalists in the room relayed reports of inconsistent mask-wearing among senators.
The strained atmosphere lent itself to chippy remarks and sniping between senators—setting the tone before the real brunt of the confirmation process begins with questioning of Barrett on Tuesday and Wednesday.
At one point, Whitehouse sarcastically went after GOP senators’ arguments that Obamacare’s fate was irrelevant, and specifically targeted Sen. John Cornyn (R-TX)—who is facing a competitive re-election this fall—saying he’d be responsible if thousands of Texans lose their health insurance. Cornyn took off his mask and chuckled in response. Later, Hawley accused Sen. Chris Coons (D-DE) of going after Barrett’s religious views. Even the hearing’s few moments of warmth were laced with tension: Sen. Mazie Hirono (D-HI) needled Graham for personally expressing concern over her health after a cancer diagnosis while opposing a law that’s provided health insurance to millions. “Do the right thing!” Hirono responded.
A litany of other items came up that will likely fuel debate in the coming days—from GOP concerns over court expansion to Democratic arguments on other issues, from abortion rights and contraception to LGBTQ rights and racial equality.
In his opening remarks, however, Graham may have made the most important point. While the hearings will function as a necessary opportunity for both sides to dig into Barrett’s record for the public’s review, he said, the outcome is not in doubt. Virtually all are aware that she has the votes to become Trump’s third pick to the high court bench in as many years.
“This is probably not about persuading each other,” he said, before predicting a “long, contentious week.”