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Democrats seem resigned to Barrett confirmation

Updated October 15, 2020 - 6:00 am

WASHINGTON — Supreme Court nominee Amy Coney Barrett appeared before a Senate confirmation hearing for a final day of questioning, where even opposition Democrats appeared resigned to the outcome of a successful nomination.

Democrats hammered away at her previous rulings and judicial writing as a law professor, but the cordial attitude afforded the nominee on the last day before the Senate Judiciary Committee signaled they were prepared to vote, albeit along mostly party lines, on the nomination.

Barrett, 48, received a much different reception than Justice Brett Kavanaugh, who faced decades-old accusations of sexual assault during his confirmation hearing and a confrontation with Democrats who failed to block his advancement to the court.

Chairman Lindsey Graham, R-S.C., confidently said Barrett would be confirmed, a historic milestone.

“This is history being made, folks. This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology,” said Graham, “And she’s going to the court.”

Later, he praised the conduct of senators at the hearing.

“I can’t think of one episode where someone prevented her from finishing her thought,” Graham told reporters.

Sen. Dick Durbin, D-Ill., ended the hearing Wednesday with a nod to Graham.

“Thank you for your fairness in this hearing,” Durbin said.

The committee will hear testimony from judicial experts and legal scholars on Thursday.

Committee vote next week

Graham has scheduled a committee vote Oct. 22 on its report to the full Senate.

Republicans have a slim 53-47 majority in the Senate, leaving Democrats few options to delay or block the confirmation, barring some last-minute parliamentary move.

Senate Majority Leader Mitch McConnell, R-Ky., said he would call a confirmation vote of the Senate before the Nov. 3 election, just days before the Supreme Court is to hear a case and later deliver a ruling that could decide the fate of the Affordable Care Act.

President Donald Trump said before he picked Barrett that he would nominate a jurist for the Supreme Court who would abolish former President Barack Obama’s signature legislation that expanded health care coverage to millions of Americans.

The law — passed without a single Republican vote — has been the subject of litigation and repeal legislation almost since it became law. Republicans cited the ACA’s cost increases for private health care plans and the unequal distribution of federal funding to more populous states as reasons for its repeal.

Democrats accused Trump of trying to use the Supreme Court to repeal the law where Congress had failed. To that end, Democrats again Wednesday focused on judicial writings by Barrett that were critical of Supreme Court decisions in 2012 that upheld the constitutionality of the law.

But Barrett replied that the legal challenge of the ACA before the high court is one of different circumstances, and she claimed to disbelieving Democrats that she would, if confirmed, have an open mind to arguments on both sides. While Barrett said she is aware that “the president opposes the Affordable Care Act. But she said she has no animus toward the health care law.”

Still, Durbin said that in light of the president’s public comments, her nomination was tarnished by an “orange cloud,” a jab at Trump’s hair and tan lines.

Standing firm

Despite the efforts of Democrats to dig deeper into her past, Barrett appeared to brush away their attempts to cast doubt on her nomination.

A judge on the 7th Circuit Court of Appeals, Barrett was confirmed by the committee just three years ago and her experience with the confirmation process was apparent in her refusal to answer questions about specific cases or rulings.

Sen. Amy Klobuchar, D-Minn., noted that with the confirmation of Barrett, the Supreme Court would have three lawyers who worked on the legal team that successfully won the 2000 election battle in Bush v. Gore. Justices Neil Gorsuch and Brett Kavanaugh also worked on the case in which the Supreme Court ordered a halt to ballot recounting in Florida that left George W. Bush the winner of the 2000 election.

But Barrett said she worked briefly on the case. She again declined to say whether she would recuse herself in any legal challenge involving Trump in the upcoming election.

Big money on TV ads

Nevada Democrats Catherine Cortez Masto and Jacky Rosen, who are not on the committee, said they would oppose the Barrett confirmation when the full Senate votes.

Cortez Masto, chairwoman of the Democratic Senatorial Campaign Committee, said in a tweet on Wednesday, “The SCOTUS hearings have made it crystal clear that if we are going to protect our Supreme Court, we need to #FlipTheSenate.”

The tweet was part of a fund-raising promotion for ActBlue, a fundraising platform that raises money for Democratic candidates.

Special interest groups on both sides of the nomination have poured millions into advertising, according to the nonpartisan Center for Responsive Politics, a watchdog group that tracks money in politics.

But with Barrett’s confirmation appearing to be likely, Democrats used the hearing to target Trump and his pledge to overturn the landmark 1973 case of Roe v. Wade, and to finally undo the Affordable Care Act.

Sen. Ted Cruz, R-Texas, said the focus on the ACA led him to believe he was taking part in a Senate Health Committee hearing.

“Democrats are treating this as a policy hearing,” Cruz said.

Cruz also questioned the lack of enthusiasm on the Democratic side, noting that many were absent from the hearing during the middle of the afternoon.

That comment drew a quick rebuke from Durbin, who reminded Cruz that the hearing was taking place during a coronavirus pandemic and some senators were watching the proceedings “safely in their offices.”

The Senate hearing room was reconfigured by the Capitol architect and health care officials to comply with social distancing guidelines by the Centers for Disease Control and Prevention.

Contact Gary Martin at gmartin@reviewjournal.com or 202-662-7390. Follow @garymartindc on Twitter.

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