A deeply divided Senate Judiciary Committee will launch four days of contentious confirmation hearings for Justice Amy Coney Barrett, President Trump’s Supreme Court candidate, on Monday, drawing battle lines that could result from the election.
Democrats will arrive ready to go on the offensive, portraying Judge Barrett’s appointment as an election season takeover by Mr. Trump and the Republicans. They will characterize her as a conservative ideologue who would overturn the affordable care law, invalidate abortion rights and side with the president in any legal dispute arising from the November 3 election.
Republicans will try to deflect these accusations and redirect attention to Judge Barrett’s resume and his compelling personal story. But their goal above all is speed – getting confirmation through before election day – and it looks like they have the votes to install it and cement a conservative 6-3 majority on the pitch before the end of October.
Monday’s hearing will begin at 9 a.m. and is expected to last most of the day, as each Judicial Committee member has 10 minutes to make an opening statement. Judge Barrett will be the last to speak and is expected to make a brief, mostly biographical, statement before answering questions later in the week.
Although the fights over the Supreme Court candidates have grown fiercer in recent years, no modern confirmation battle has taken place so close to a major presidential election. This contest and the race for control of the Senate will be omnipresent in the hearings, shaping the strategies of both parties.
Republicans who are lagging behind in the polls hope to use the confirmation struggle to stir up enthusiasm among their grassroots, but also to convince independent voters, especially women, who are dropping out of the party en masse. To that end, they plan to largely circumvent the political implications of the court’s right-leaning in favor of Judge Barrett’s personal history, highlighting his legal expertise as an appeals court judge and professor of law of Notre-Dame and her experience as a mother of seven children.
They also want to try to get Democrats to question Judge Barrett’s impartiality on the basis of her Catholic faith, as they did in a 2017 hearing on her nomination to a court seat. call. Republicans believe if Democrats take the bait, they could spark a political backlash like the one that helped motivate their base in the 2018 Confirmation Battle against Judge Brett M. Kavanaugh.
Democrats will take the opposite approach. They’ll try to hammer Republicans on what Judge Barrett’s confirmation might mean for a range of popular policies and powerful campaign issues, like the health care law, abortion rights and same-sex marriage. They’ll point to Judge Barrett’s record to say she could undermine all three if upheld.
Justice Amy Coney Barrett, President Trump’s choice for the Supreme Court, has compiled an almost uniformly conservative vote record in cases involving abortion, gun rights, discrimination and immigration. If upheld, it would shift the court slightly but firmly to the right, making compromise less likely and endangering the abortion right established in Roe v. Wade.
Judge Barrett’s judicial opinions, based on a substantial sample of the hundreds of cases she reviewed during her three years at the Chicago Federal Court of Appeal, are marked by care, clarity and a commitment to the methods of interpretation used by Judge Antonin Scalia, the giant of conservative jurisprudence for whom she worked as a lawyer from 1998 to 1999.
But while Judge Scalia’s methods have sometimes led him to liberal results, including in flag-burning cases and the role of juries in criminal cases, Barrett J. could be another type of justice.
“There may be fewer surprises from someone like her than from Justice Scalia,” said Brian T. Fitzpatrick, former justice lawyer and professor of law at Vanderbilt University. “She is supportive of Judge Scalia’s methods, but I don’t have a feeling that she’s going to be a philosophical leader on how those methods should be performed.
Abortion is an area in which hardly anyone expects surprises. Mr Trump has promised to appoint judges ready to overturn Roe v. Wade, the 1973 ruling that established a constitutional right to abortion. Groups opposed to abortion defended the appointment of Judge Barrett. And his academic and judicial writings have been skeptical of broad interpretations of abortion rights.
Justice Barrett will no doubt tell senators that the Roe decision is a precedent set, as it did when Mr. Trump appointed her to the appeals court in 2017. And the Supreme Court may not hear from direct challenge against Roe anytime soon, preferring instead to consider cases that could reduce abortion rights.
But when the day comes, many of Judge Barrett’s supporters are confident she won’t flinch. Justice Scalia wrote that the Constitution has nothing to say about abortion and that states should be allowed to decide the matter for themselves. There is no reason to believe that Barrett J. disagrees.
Obviously, overturning a major precedent is no small feat. But Judge Barrett said some precedents are more worthy of respect than others.
In a 2013 law review article, she examined the role of the doctrine of stare decisis, which in Latin means “to stand by decisions made” and is a shorthand for respecting precedent. The doctrine, Judge Barrett wrote, “is not a hard and fast rule in the constitutional matters of the court,” and she added that its power is diminished when the matter under consideration is unpopular.
“The public response to controversial cases like Roe,” she writes, “reflects the public rejection of the proposition that stare decisis can declare a permanent winner in a divisive constitutional struggle.
Ultimately, Justice Barrett will have the chance to reintroduce herself without interruption through partisan bickering, and she intends to underscore her commitment to family and the legal philosophy championed by Antonin Scalia, the judge who died in 2016 and for whom she was. clerk. .
According to opening remarks released by the White House on Sunday, Judge Barrett plans to spend a lot of time discussing her love of family – describing each of her seven children individually – her education as a Catholic in New Orleans and of her experiences as a student, clerk and then professor of law at Notre-Dame. She will pay particular tribute to two women – Justices Sandra Day O’Connor and Ruth Bader Ginsburg – who smashed the glass ceiling of the Supreme Court.
“I was nominated to take the seat of Judge Ginsburg, but no one will ever replace her,” she plans to say. “I will be forever grateful for the path she made and the life she led.”
But her legal philosophy could not be more opposed to that of the woman whose seat she intends to occupy. Like Justice Scalia, Justice Barrett is described as a textualist and an originalist. This means that it prefers to interpret the clear terms of a legal law rather than the intention of legislators and read the Constitution according to the understanding of its drafters.
“Courts are not designed to solve all the problems or right all the wrongs in our public life,” Judge Barrett predicted. “Political decisions and value judgments of government should be made by elected political branches and accountable to the people. The public should not expect the courts to do this, and the courts should not try. “
Judge Barrett’s confirmation hearing will be unlike any other in modern history, thanks to the coronavirus pandemic. Republicans insist on continuing despite a virus outbreak in Washington that appears to be linked to the crowded White House ceremony two weeks ago where Mr. Trump introduced Judge Barrett as his candidate. The chairman and most of the other meeting participants were maskless. Mr. Trump has since tested positive for the virus, as have several other guests.
At least two Republican Senators on the Judiciary Committee, Mike Lee of Utah and Thom Tillis of North Carolina, also tested positive after attending the event. They are expected to participate in the hearings, which will be chaired by Sen. Lindsey Graham of South Carolina, chairman of the judicial committee, who has refused to be re-tested. Democrats called for a delay, but were pushed back.
The debates will take place in part by video to allow senators who may be sick or worried about being infected to participate remotely. No members of the public – including protesters whose confrontational style has set the tone for further confirmation fights – will be allowed into the courtroom, which will be sparsely populated with senators and spectators.
If other Republican senators got sick, it could complicate Judge Barrett’s chances of confirmation. With two party members, Senators Susan Collins of Maine and Lisa Murkowski of Alaska, already opposed to proceeding before Election Day, the Republicans, who control the Senate by a majority of 53 to 47, can only afford to lose one more vote.
After Monday opening statements, senators will dive into multiple series of questions with Judge Barrett on Tuesday and Wednesday. While the format is different – and there might be elements of surprise – don’t expect to learn much about Judge Barrett’s specific legal opinions on the more politically sensitive issues that might come before the court. Like previous applicants, she is expected to refuse to answer questions that could compromise her ability to rule impartially on future cases.
Sure Thursday, the committee will meet again to hear a panel of external witnesses testifying for and against the confirmation of Judge Barrett. Then it will immediately begin deliberating on whether to recommend that it be confirmed. The debate will be fierce and partisan, but by the rules Democrats will insist the panel wait a week to vote on his nomination.
From now on, the Judicial committee plans to meet on October 22 to approve the nomination. If all panel members are present, Republicans would have a clear majority and easily win the vote. But if Republican lawmakers weren’t able to attend, they could quickly find themselves in a bind.
If approved, the nomination will then go to the Senate for consideration. Kentucky Republican Senator Mitch McConnell and Majority Leader, has not said when he will plan a final vote, but it should take place at the beginning of the week of October 26, in time for senators to race home for a final week of campaigning before the election.