Healthcare dominated the first day of Judge Amy Coney Barrett’s Supreme Court confirmation hearing, as Democrats framed her as a lethal threat to the Affordable Care Act and abortion rights and warned that even conducting the hearing during the pandemic was reckless.
Democrats showed uncharacteristic discipline in focusing almost exclusively on the 2010 healthcare law during the first of four days of hearings. A similar, singular healthcare strategy boosted Democratic congressional candidates in the 2018 midterm election. Next month, the Supreme Court will hear arguments on a case challenging the constitutionality of the law, and if Barrett is confirmed, she could be the deciding vote.
“We can’t afford to go back to those days when Americans were denied coverage,” said Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Senate Judiciary Committee, pointing to past criticisms by Barrett about the law, which is also known as Obamacare.
Republicans, for their part, focused their opening statements on Barrett’s character and strong legal credentials, including graduating first in her class at Notre Dame Law School and clerking for the late Justice Antonin Scalia. They also tried to draw Democrats into a debate about Barrett’s Catholic faith, accusing liberals of imposing a religious litmus test. Democratic senators avoided the topic of religion altogether.
In contrast to the tumultuous hearing of Justice Brett M. Kavanaugh in 2018, which started with procedural delay tactics by Democrats within minutes of the opening gavel, Monday’s hearing was cordial and calm. Senators delivered their 10-minute opening statements with no interruptions from members of the opposing party. No members of the public were allowed in the hearing room because of coronavirus concerns, meaning there were not the continuous outbursts and protests that occurred during the Kavanaugh hearing.
In her opening statement, Barrett emphasized a respect for precedent and settled law and a view that the courts are “not designed to solve every problem or right every wrong in our public life.”
A 7th Circuit Court of Appeals judge and former professor at the University of Notre Dame, Barrett told the committee that “policy decisions and value judgments” should be made by elected officials, not the courts.
It remains to be seen whether the civility of the first day of Barrett’s hearing will continue into Tuesday, when two days of questioning will begin. Democrats are expected to press Barrett about her past public comments criticizing the landmark abortion ruling in Roe vs. Wade, but they plan to maintain their overall focus on the Affordable Care Act because it “is on the ballot and on the docket,” said Sen. Chris Coons (D-Del.).
“We have to recognize, we represent the Democratic Party on the eve of an election,” said Sen. Sheldon Whitehouse (D-R.I.), calling for an aggressive response this week from Democrats on the panel that also reflects the “decency that [Democratic presidential candidate] Joe Biden represents.”
Judiciary Chairman Lindsey Graham (R-S.C.) predicted that it would be a “long, contentious week” but pledged to try to deliver a fair process. Republicans aim to sprint Trump’s nominee to the court by election day.
Two Senate Republicans have voiced opposition to confirming a nominee so close to the election after Republicans for the same reason blocked President Obama’s pick for the Supreme Court, Merrick Garland, after Scalia died in February 2016. But Republicans appear to have the votes needed to confirm Barrett.
“This is probably not about persuading each other unless something really dramatic happens,” Graham said. “All the Republicans will vote yes, and all the Democrats will vote no,” he predicted.
Graham defended Republicans’ decision to move ahead with filling the vacancy created by the Sept. 18 death of Justice Ruth Bader Ginsburg. Graham previously promised twice that he would not fill a Supreme Court vacancy if it occurred in an election year, as Scalia’s did. But shortly after Ginsburg’s death, he reversed his position, arguing that Democrats would have done the same.
“Republicans should honor this word,” Feinstein said, “and let the American people be heard. Simply put, I believe we should not be moving forward on this nomination. Not until the election is ended and the next president has taken office.”
Republicans view Barrett’s nomination as a rare opportunity to create a 6-3 conservative Supreme Court majority, as well as to energize voters to turn out at the ballot box for the president and Senate Republicans in increasingly difficult races.
The tension around Barrett’s nomination process has increased in the wake of two Judiciary committee Republicans coming down with COVID-19. Both senators could have contracted the coronavirus at the White House Rose Garden event at which Barrett was publicly announced as the nominee. Democrats demanded that all senators and staff in the hearing room this week take a COVID-19 test before proceeding, but Republicans balked.
The pandemic has dramatically changed the confirmation process. Public access to the hearing room has been eliminated, forcing protesters to rally outside the Senate office buildings, out of earshot of lawmakers. Staff and media access has been sharply curtailed.
Senators had the option of participating virtually, but most attended in person. Sen. Kamala Harris (D-Calif.), the party’s vice presidential nominee, participated remotely.
“The decision to hold this hearing now is reckless and places facilities workers, janitorial staff, congressional aides and Capitol Police at risk,” Harris said.
Senate Minority Leader Charles E. Schumer (D-N.Y.) warned that if additional Republican committee members become ill and are unable to physically participate in the committee vote, which is expected Oct. 22, Democrats would not help them provide the needed quorum to proceed.
But that would be largely a symbolic act, because Republicans could simply opt to skip a committee vote and bring the nomination directly to the full Senate.
Republicans are eager to get into a scuffle over Barrett’s religious views. Feinstein in 2017 told Barrett that the “dogma lives loudly within you,” responding to a 1998 article Barrett co-wrote in which she questioned whether Catholic judges might have to recuse themselves on certain issues that conflicted with their faith — specifically, the death penalty.
Many Republicans referenced the 2017 episode during their statements, but Democrats — burned by the backlash — made a conscious decision to avoid the topic on Monday.
“Did you hear one of us raise that issue?” Sen. Richard J. Durbin (D-Ill.) asked reporters Monday afternoon.
Republicans also referred to calls by some Democrats to add seats to the Supreme Court next year, an idea that Biden and Harris have refused to address directly.
“They intend to pack the court with more justices who will turn the Supreme Court into a genuine second legislative body,” said Sen. John Cornyn (R-Texas). “It is outrageous.”
The electoral stakes of the process are significant. Conservatives who were initially skeptical of Trump in 2016 eventually supported his nomination in large part because of his pledge to appoint what he called “pro-life” judges. Republicans are hoping that a final Senate vote on confirmation — expected the week prior to the election — will remind GOP voters of the power of the presidency.
Graham is counting on the confirmation to energize conservative voters in South Carolina, where he is facing an increasingly difficult reelection race. Several other Republicans in difficult reelection races will get a shot at creating a viral moment during the hearing, including Cornyn and Sens. Joni Ernst of Iowa and Thom Tillis of North Carolina.
Barrett has a history of statements on divisive issues — surprising for a Supreme Court nominee — such as the healthcare law and abortion rights.
In an essay, Barrett criticized Chief Justice John G. Roberts Jr.’s 2012 opinion upholding the individual mandate under the Affordable Care Act. She wrote that he pushed the law “beyond its plausible meaning to save the statute.”
She was also critical of a 2015 healthcare case, King vs. Burwell. That challenge was widely viewed by legal experts as the weaker of the first two ACA lawsuits to land at the Supreme Court at that point. But Barrett said the dissent in the King case had “the better of the legal argument.”
There are signs, however, that Barrett won’t strike down the entire law if she is on the bench in time for the third legal challenge to the constitutionality of the law. She participated in a moot court event on the latest major challenge to the ACA at William & Mary Law School just one week before Ginsburg died. Individual votes of Barrett and the others on the eight-judge panel were not disclosed, but none ruled in favor of the GOP argument that the entire law should be invalidated.
As an appellate judge in 2018, Barrett signed on to an opinion that suggested the government could ban abortion based on a woman’s reason for having one.
At play in that case was an Indiana law that banned abortion in cases of a fetal anomaly or the gender of the fetus. The argument Barrett signed reasoned that the ban could be valid because Supreme Court precedent hadn’t considered what it called an “anti-eugenics” law.
“Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay” prior Supreme Court rulings, the signatories wrote.
The Supreme Court later declined, without dissent, to hear an appeal involving that part of the Indiana law, leaving in place a lower court order that struck down the abortion restrictions as unconstitutional.
Barrett also signed her name to a 2006 ad placed by an Indiana group that called for an end to the “barbaric legacy” of the court’s Roe vs. Wade decision.
Staff writer Sarah D. Wire contributed to this report.