1. Conservatives are highlighting Barrett’s gender
Right before an election in which Trump is struggling with female voters, particularly in the suburbs — and which could bring down Senate Republicans on the ballot with him — the GOP has a nominee who they hope can mitigate the damage. (A new Washington Post-ABC News poll shows Biden holds a 23-point advantage over Trump among female likely voters.)
Barrett is more conservative than most of these voters who are moving away from Trump. Another Washington Post-ABC News poll shows a consistent majority of Americans want the Supreme Court to uphold Roe v. Wade protecting abortion rights. She personally opposes abortion.
But Barrett is also a working mother of seven school-age children. And to the extent Republicans can hold up her nomination to show they’re not anti-feminist, they’re doing it.
“This is history being made, folks,” Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) told her Wednesday. “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology. And she is going to the court, where there is a seat at the table waiting for you. And it will be a great signal to all young women who share your view of the world that there is a seat at the table for them.”
2. There’s a battle over whether Barrett can be characterized as extreme
Democrats have spent much of this hearing using Barrett’s conservative views to argue she would vote to overturn abortion rights, health-care protections, LGBT rights and voting rights. Barrett couldn’t bat much of that down because she won’t say much on these issues. She is trying to appear impartial on matters that could come before the court.
So on Day 2 of questioning, Democrats started pointing to the many times the late Justice Antonin Scalia — whose judicial philosophy Barrett has embraced — argued that Obamacare should go, or that a reinforced Voting Rights Act isn’t necessary, or that abortion rights should be questioned. Some Democrats even argued she could rule that in vitro fertilization should be unconstitutional, since Barrett signed her name to a 2006 antiabortion newspaper ad by a group that has also compared IVF to manslaughter.
Barrett’s decision not to talk about anything she deemed public policy led to exchanges where she wouldn’t say that legalized birth control should stay, or that separating children at the border from their parents is wrong, or that climate change is man-made.
Sen. Christopher A. Coons (D-Del.) made the case that while Scalia’s controversial views were in the minority dissenting in many cases, Barrett would be in the majority on a highly conservative court.
“President Trump did not nominate you because he wants to carry on Justice Ginsburg’s legacy,” Coons said, referring to Ruth Bader Ginsburg, who passed away last month.
Republicans recognized that under this questioning, Barrett risked being viewed as more extreme after these hearings than she was going into them.
So they elevated her argument that she couldn’t single-handedly change laws as a justice. Graham, for example, coaxed her to talk about how criminalizing IVF would be up to a legislature, not a court. And he and other Republicans led her to discuss how she might vote in favor of keeping Obamacare in place.
“So it is not fair,” Sen. John Cornyn (R-Tex.) said, concluding his last round of questioning, “to suggest that by confirming you to the position, this will adversely impact the lives of these individuals [who rely on the ACA]?” Barrett responded she would keep an open mind.
Republicans have the votes to confirm Barrett to the court, but they also don’t want to risk losing more moderate Republican senators — or doing worse in public opinion than they already are on this. Two GOP senators who tend to support abortion rights, Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), are already potential “no” votes on her confirmation.
3. Barrett isn’t able to distance herself from Trump
The central tension in Barrett’s hearing, as it has been for other Trump nominees, is whether her attempt to remain an impartial judge means she can’t comment on common-sense legal matters.
Democrats, knowing that, still asked her questions about the president potentially abusing his power. And they got answers like this:
Leahy: Does the president have a right to pardon himself for a crime? We saw this after President Nixon’s impeachment.Barrett: So far as I know, that question has not been litigated or arisen.
They also asked: Can the president legally delay an election? On Tuesday, she wouldn’t clearly say. Is voter intimidation illegal? She didn’t clearly say. Are absentee ballots an essential way for Americans to vote in a pandemic? “That’s a matter of policy on which I can’t express a view,” she replied.
On Tuesday, Barrett said she would be nobody’s “pawn” on the Supreme Court when she was questioned about whether she’d weigh in on decisions over the presidential election. But it’s potentially troubling for vulnerable Senate Republicans trying to distance themselves from Trump that Barrett hasn’t been able to do that, either.
4. This is a campaign stage, too
Barrett will probably end up on the Supreme Court within the next few weeks. So Democrats have looked past her confirmation somewhat by talking about the threat to the Affordable Care Act. It’s a strategy that seems aimed at making the several vulnerable Republicans on the committee as uncomfortable as possible.
Talking about health care was a politically winning strategy for Democrats in 2018 when they took back the House majority. It could be even more resonant in a pandemic for them as they try to take the Senate majority and win the White House. Vice-presidential nominee Sen. Kamala D. Harris (D-Calif.) sits on this committee, and she spent much of her time making the case that Republicans want to strip Americans of protections under the Affordable Care Act.
Harris made sure to tick off the number of people with preexisting conditions in Iowa, Texas, North Carolina and South Carolina — all states represented by Republican senators on the committee who are in tight reelection races.
“People are very scared,” Harris said Wednesday. “They are scared that allowing President Trump to jam this confirmation through would roll back rights for a generation. … I believe my Republican colleagues are doing great harm with this process, and if they are successful, they have the potential to do great damage.”
Republicans are feeling pressured to respond. Sen. Thom Tillis (R-N.C.) is one of the most vulnerable senators on this committee. Fresh off a coronavirus diagnosis, he made sure to push back on health care attacks, a subject he’s particularly coming under fire for in North Carolina. “I don’t think there is anybody in the U.S. Senate that doesn’t want to make sure that the people we’ve seen in these pictures,” he said, pointing to posters Democrats brought of people who rely on the ACA, “that those folks have affordable care.”
Sen. Joni Ernst (R-Iowa), who is trailing in some polls to her Democratic challenger, talked about coronavirus relief legislation that Congress has yet to pass. And Graham, who is in a surprisingly tight reelection campaign, felt the need to explain why Republicans oppose Obamacare in the first place: “From my point of view, Obamacare has been a disaster for the state of South Carolina.”