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
The confirmation hearings for Judge Amy Coney Barrett will kick off Monday despite criticism from Democrats about the event possibly being unsafe because of the Covid-19 pandemic.
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 that 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.
The confirmation battle, set in the middle of the contentious election contest 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 on 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 will also express her view that courts should avoid making policy decisions and value judgments, which she will say “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 will say.
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. Barrett does not address Ginsburg’s dying statement in her prepared remarks, but does 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 will say.
While Barrett’s confirmation to the bench would likely shift the law rightward on a host of 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 that 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
The questions from senators are scheduled for Tuesday and Wednesday. One senator who will be in the spotlight will be Sen. Kamala Harris, a deft questioner 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.
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, which was held 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 later this month, it could imperil Republicans’ slim margin.