Three long days of Supreme Court confirmation hearings ended much like how they began: Republicans confident they have the votes to confirm Amy Coney Barrett, and Democrats decrying the “sham” process just days before the Nov. 3 general election.
In between, a poised Barrett withstood hours upon hours of questioning from senators with an even temperament as she recited legal cases without the aid of notes. She impressed Republicans with her intellect, while Democrats called her non-answers “distressing.”
The battle lines around Barrett’s confirmation were already drawn before President Trump even announced his pick a week after the Sept. 18 death of Justice Ruth Bader Ginsburg. And despite the drama surrounding the Capitol Hill hearings this week, it appears few minds have been changed and the partisan divisions are firmly entrenched.
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“Senate Democrats have not been able to do anything so far that will derail Judge Barrett’s confirmation,” said Neal Allen, associate professor of political science at Wichita State University. “Their arguments about a fair judicial selection process and issues like health care will likely get popular support, but the Senate is run by Republicans with support of only a minority of Americans.”
Barrett declined to say how she’d rule on specific cases regarding the Affordable Care Act, abortion, and more — citing the Ginsburg rule — despite pressure from Democrats who were armed with her past statements and writings on the hot-button topics.
Richard Friedman, a University of Michigan law professor, decried the practice he dubbed “cottonwalling” where judicial nominees put up a “wall of fluff” instead of giving answers on their views on issues. But the lack of answers served Barrett well in that she didn’t do anything to derail her seemingly inevitable nomination process.
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“I think the hearings so far have been utterly unsurprising,” Friedman said. “Barrett, from what I can tell, is doing fine, given her task, which is to appear judicial and not lose any ground. It is the equivalent of a quarterback taking a knee near the end of a game that has been sewn up.”
Barrett carefully distanced herself from Trump’s stated judicial expectations for his nominees and from the opinions of the late Justice Antonin Scalia, her mentor, who ruled against the Affordable Care Act.
“I assure you I have my own mind,” Barrett told senators.
Despite the civility of the hearings and lack of fireworks, Democrats came away just as incensed that Republicans are holding a confirmation hearing for Barrett before voters decide the election — in contrast to the GOP position of four years ago when they blocked President Obama’s nominee Merrick Garland during an election year.
“This process is not normal,” said Sen. Richard Blumenthal, D-Conn. “It is a rushed sham process. It’s making history. Never before has a Supreme Court nominee been approved after July in an election year.”
Sen. Dick Durbin, D-Ill., told Barrett that her nomination is clouded by Trump’s rush to get a nominee on the high court before the scheduled Nov. 10 Obamacare case.
“That is the cloud, the orange cloud over your nomination as it comes before us here in the Senate Judiciary Committee, and it raises many questions,” Durbin said.
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Democrats lamented they don’t have the votes to stop the nomination and instead urged Americans to show their unhappiness by voting out the Republicans in November.
Fox News national polling conducted between Oct. 3 and 6 found that 54 percent of likely voters didn’t think a president should get to appoint someone to a lifetime position this close to the election, while 44 percent think it is the responsibility of current leaders to act to fill the vacancy created by Justice Ginsburg’s death. This was a reversal from 2016, in the wake of Justice Scalia’s death, when most felt it was the responsibility of current leaders to act by a 62-34 percent margin.
Allen, the political science professor, predicted Barrett’s hearings would do little to change Americans’ minds about the timing of the hearings before the election is decided.
“Opposition to her joining the Supreme Court at this time comes not from opposition to her personally, or to her qualifications for the position,” Allen said. “Opposition to Barrett’s nomination is about whether it is fair for a president who is likely to lose reelection in less than a month to nominate a judge who could serve for decades.”
Republicans now hold the White House and a 53-seat majority in the Senate giving them the power to set the agenda. They expressed confidence they have the votes.
“The last three days of hearings have revealed very good news,” said Sen. Ted Cruz, R-Texas. “They have revealed the news that Judge Barrett is going to be confirmed by this committee and by the full Senate.”
Republicans praised Barrett, a mother of seven and a practicing Roman Catholic, as a brilliant jurist who can serve as a role model for the next generation of conservative women.
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“This is history being made, folks,” Senate Judiciary Committee Chairman Sen. Lindsey Graham, R-S.C., said. “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology. And she’s going to the Court. A seat at the table is waiting on you.”