Republicans knew they needed to be proactive about talking about why this hearing should happen now. Their argument came down to two points:
- The same party is in the White House and Senate now, so it’s different from 2016 under President Barack Obama. (The reality is that there isn’t much data to draw on, because election-year vacancies are rare. Justices don’t leave then if they can help it.)
- Democrats are using the process to attack this nomination because they can’t attack Barrett’s qualifications.
“There’s nothing unconstitutional about this process,” said Senate Judiciary Chairman Lindsey O. Graham (R-S.C.), who four years ago told people to “use my words against me” about not taking up election-year nominations. “This is a vacancy that’s occurred, the tragic loss of a great woman. And we’re going to fill that vacancy with another great woman. The bottom line here is that the Senate is doing its duty constitutionally.” Now, he’s in a surprisingly challenging reelection campaign against a Democrat who has raised jaw-dropping amounts of money to unseat him.
Republicans aren’t breaking any laws by pushing this nomination through before the election, but it’s politically unpopular. A new Washington Post-ABC News poll showed that a slim majority of Americans oppose moving forward now.
2. Barrett pushed back against the subservient-woman narrative
Barrett’s membership in a conservative faith group that encourages women to be submissive to their husbands generated headlines in the lead-up to the confirmation hearings. She hasn’t talked about this publicly, and the group has scrubbed mention of her from its website. But her opening statement sure hinted she was aware of the damage it could do.
“When I went to college,” she said, “it never occurred to me that anyone would consider girls to be less capable than boys.”
Barrett also said all the right things about how she would apply political independence to her review of the law. “When I write an opinion resolving a case, I read every opinion from the perspective of the losing party,” she said. “I ask myself how I would feel if one of my children was the party I was ruling against.”
That will likely do little to assuage Democrats as they question her in the coming days, but she didn’t open herself up to further criticism on either front.
3. Democrats want to talk only about the health-care implications of this nomination
Democrats can’t stop a Republican majority on this committee and in the Senate from pushing through Barrett’s nomination. Democrats also can’t stop a conservative court’s consideration in November of whether the Affordable Care Act should stand, with or without Barrett on it.
So Democrats’ strategy is more focused on the election than the task at hand. The want to remind voters what is at stake with a conservative-majority court, by talking a lot about health care.
Democratic senator after Democratic senator shared stories of constituents who rely on Obamacare — a woman needing expensive kidney treatment, or a child with a heart defect who both require expensive health care and protections for coverage with preexisting conditions. And then they pinned Senate Republicans, especially the ones up for reelection on this committee, to the potential downfall of the law. The court with the late Justice Ruth Bader Ginsburg on it had upheld Obamacare; Barrett wrote critically about decisions that did so. And more than one Democrat brought up how Trump has hinted he wants his Supreme Court justices to knock down Obamacare.
“Republicans finally realized that the Affordable Care Act is too popular to repeal in Congress,” said Sen. Kamala D. Harris (D-Calif.), the Democratic vice-presidential nominee. “So now they are trying to bypass the will of the voters and have the Supreme Court do their dirty work.”
Sen. Sheldon Whitehouse (D-R.I.) said, “For Republicans, there is no washing your hands of responsibility for the results that your president has told us will ensue.”
At least one Republican tried to fire back: “Every single member of the Senate agrees that preexisting conditions can and should be protected, period. The end,” Sen. Ted Cruz (Tex.) said. (Fact-checkers have pointed to Republicans’ actions to repeal Obamacare without a plan to fully cover preexisting conditions.)
4. Democrats are staying away from her faith — but Republicans are trying to drag them into that fight
The last time Democrats talked about Barrett’s Catholic faith in a judicial hearing — for her seat on a federal court in 2017 — it didn’t go well. The top Democrat on the committee, Sen. Dianne Feinstein (Calif.), questioned Barrett’s faith and how it influenced her legal thinking (“the dogma lives loudly within you, and that’s of concern”) in a way that opened Democrats up to attacks they were applying an unconstitutional religious test.
So they’re actively trying to avoid that now. It could be a tricky line to walk as Democrats bring up the possibility the court with Barrett on it could severely restrict or overturn Roe v. Wade, which legalized abortion nationwide.
But Republicans see an opening to make it sound as if Democrats are the ones who are extreme. So they gave lots of quotes like this one from Sen John Cornyn (R-Tex.), summarizing what he said were attacks on Barrett: “America’s secular cultural elites aren’t sure that a faithful Christian can be entrusted with the law."
It’s a battle line that Democrats don’t want to be drawn across.
5. The coronavirus looms over this hearing
Barrett’s nomination announcement at the White House turned out to be a coronavirus superspreader event. It led to the president’s hospitalization and the cancellation of regular business by Senate Republicans. But they’re under a tight timetable to get this nomination done before the election, so this hearing is on. That’s despite the fact that two Republican senators are recovering from the virus, and two more are self-quarantined. One of those who tested positive, Sen Mike Lee (R-Utah), showed up to the hearing without a mask.
All these GOP senators need to get better to vote in person on Barrett’s nomination, or their carefully timed confirmation process could be in peril. Meanwhile, Democrats are bashing Republicans every step of the way for even holding it.
“We should not be holding this hearing when it’s plainly unsafe to do,” Sen. Patrick J. Leahy (D-Vt.) said.
Graham talked about the steps taken to ensure safety in the hearing despite the risks: “I made a decision to try to make the room as safe as possible but to come to work. Millions of Americans are going to work today," he said.