Amy Coney Barrett supreme court hearing sets
stage for partisan clash
Four days of hearings are scheduled before the Senate
judiciary committee, beginning with opening statements on Monday
Lauren
Gambino in Washington and Tom McCarthy
Mon 12 Oct
2020 18.01 BSTFirst published on Mon 12 Oct 2020 08.00 BST
Government
policy must be set by Congress and not the courts, Amy Coney Barrett told a
deeply divided Senate judiciary committee as the first day of her confirmation
hearings on Monday set in motion a momentous partisan battle, three weeks
before the presidential election.
Even before
the supreme court nominee began speaking, Democrats argued that the process
that got her there – Senate Republicans rushing to confirm her even as the
president who nominated her appeared to be in the act of losing an election,
perhaps badly – was an act of hypocrisy that would damage the legitimacy of the
court.
“I believe
Americans of all backgrounds deserve an independent supreme court that
interprets our constitution and laws as they are written,” Barrett said in her
opening statement. “And I believe I can serve my country by playing that role.”
After
listening silently for much of the day’s proceedings, Barrett outlined her
judicial philosophy, introduced her family of nine, most of whom were seated
behind her, and paid tribute to Ruth Bader Ginsburg, the justice she was
nominated to replace.
Barrett, a
conservative Christian who has criticized the high court’s decision to uphold
the Affordable Care Act (ACA), who has publicly opposed reproductive rights and
who was a trustee at a school whose handbook included a stated opposition to
same-sex marriage, is seen on the left as part of a power play by Donald Trump
and Republicans to cement a conservative majority on the court for a
generation.
“Courts
have a vital responsibility to the rule of rule of law, which is critical to a
free society,” the judge said in a prepared statement, after removing her black
face mask. “But courts are not designed to solve every problem or right every
wrong in our public life.”
Barring any
dramatic revelations or procedural derailments, Republicans are poised to confirm
Barrett to a lifetime appointment on the court before the November election.
With the
crack of a gavel, Lindsey Graham, Republican of South Carolina and chairman of
the committee, opened the four-day proceedings by calling Barrett a judge “the
country should be proud of” and defending Republicans decision to hold the
nomination hearing amid a pandemic and so close to a presidential election.
“This is
probably not about persuading each other unless something really dramatic
happens,” Graham acknowledged. “All Republicans will vote yes and all Democrats
will vote no.”
Setting the
stage for what was to come, he added: “This is going to be a long, contentious
week.”
After
delivering opening remarks on Monday, Barrett will face questions on Tuesday
and Wednesday before witnesses speak on Thursday. Graham said the committee
would vote on 22 October.
In their
opening statements, Democrats focused on the likely impact of Barrett’s
confirmation on healthcare law, abortion rights and same-sex marriage. They
displayed life-size photographs of constituents who would lose coverage if the
ACA was dismantled as they decried a process they believed was illegitimate.
“We are now
just 22 days from the election,” said Dianne Feinstein of California, the
ranking Democrat. “Voting is under way in 40 states. Senate Republicans are
pressing forward, full speed ahead, to consolidate a court that will carry
their policies forward with, I hope, some review for the will of the American
people.”
Republicans
sought to emphasize Barrett’s sterling credentials and compelling personal
story, involving working as a law professor while raising seven children, two
adopted from Haiti and one with Down’s syndrome.
Barrett was
a “legal titan who drives a minivan” and was as comfortable at the “Saturday
morning tailgate” as she was in the “ivory tower” of academia, said Senator
Mike Braun, a Republican from the judge’s home state of Indiana, who introduced
her to the panel.
In their
remarks, Republicans sought to defend Barrett as an “originalist” who would
apply the law, not write it, and assailed Democrats for suggesting her writings
and public commentary reflected how she would rule as a justice on the court.
Several of
them accused Democrats of anti-Catholic bigotry, in hopes of stirring a
political backlash from their base. They pointed to recent reports about
Barrett’s involvement with the insular religious community, People of Praise,
and reached back to her 2017 nomination for an appeals court seat, in which
some Democrats asked if her personal convictions might prevent her from ruling
impartially.
But
Democrats have studiously avoided the subject of Barrett’s faith and on Monday,
only Republicans raised the issue. Instead, Senate Democrats focused only on
what they believed was at stake if she was confirmed to the court.
They warned
that Trump was rushing Barrett’s confirmation in the event a potential legal
challenge to the results of the 3 November election reaches the supreme court.
In recent days, Trump has said he expects that very scenario and wanted his
nominee confirmed before election to weigh in on the case.
“You must
recuse yourself,” Senator Richard Blumenthal, Democrat of Connecticut, implored
Barrett, during a statement in which he said explicitly that he would vote
against her confirmation. “The American people are angry and for good reason.
It is a break the glass moment.”
Democrats
argue that the winner of the election should nominate the next justice, as was
the case in 2016, after the death of Antonin Scalia. Upon Scalia’s death in
February, the majority leader, Mitch McConnell, took the unprecedented step of
refusing to hold a hearing for Barack Obama’s nominee, Merrick Garland,
explaining that it was too close to a presidential election.
Trump
thrilled conservatives and anti-abortion activists when he nominated Barrett to
fill the vacancy created by the death of Ginsburg, a liberal icon who
championed women’s rights. Barrett is Trump’s third appointment, after Neil
Gorsuch and Brett Kavanaugh, all of whom he has touted as “pro-life”.
According
to a Washington Post-ABC News poll, a slight majority of Americans oppose a
confirmation so close to the election. The same survey found 62% believe the
court should uphold Roe v Wade, the 1973 decision that made abortion legal,
while just 24% say it should be overturned.
Trump has
said Barrett could help overturn the landmark ruling.
But in her
initial comments, Barrett sought to stay above the political fray on display in
front of her.
“The policy
decisions and value judgments of government must be made by the political
branches elected by and accountable to the people,” she said. “The public
should not expect courts to do so, and courts should not try.”
Senator
Kamala Harris, a Democrat from California and the running mate of presidential
nominee Joe Biden, said that in choosing Barrett, Trump nominated someone who
threatens to “undo [Ginsburg’s] legacy” championing civil rights and equality.
Testifying
remotely from her office due to the pandemic, Harris said the court was often
the “last refuge for equal justice when our constitutional rights are being
violated” and warned that “equal justice under law is at stake”.
Trump, who
was apparently following the proceedings, interjected several times on Twitter.
In one message, he questioned why Democrats were given equal speaking time as
Republicans, and in another claimed his administration would replace the ACA
with a “FAR BETTER” healthcare plan. Despite repeated promises to do so, Trump
has not yet revealed such a plan.
McConnell
has already lost the support of Susan Collins, a Republican from Maine in a
tight re-election fight. Alaska senator Lisa Murkowski also said the Senate
should wait.
Complicating
this, however, is a coronavirus outbreak at the White House, which infected the
president. Two Republicans on the committee – Mike Lee of Utah and Thom Tillis
of North Carolina – tested positive after attending a Rose Garden ceremony for
Barrett on 26 September, in which most of the audience did not wear a mask. Two
others – Ben Sasse of Nebraska and Ted Cruz of Texas – subsequently
self-quarantined.
Lee, who
Graham said had been “cleared by his physician”, and Sasse were present in
Washington on Monday. Tillis and Cruz participated remotely.
Those
present wore masks and were separated. Hand sanitizer and wipes dotted the
dais. No members of the public were permitted into the committee room,
eliminating the possibility of protests.
“These are
not normal times,” said Senator Mazie Hirono, a Democrat from Hawaii observed,
and decried the “hypocritical, illegitimate process” that led to this hearing
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