Senate Republicans moved swiftly Thursday toward confirming Supreme Court nominee Amy Coney Barrett before the Nov. 3 elections, as the hearings for President Trump’s third pick to the court concluded with her emerging largely unscathed.
“We have the votes,” McConnell said as he voted early in Kentucky on Thursday.
The installment of a third Supreme Court pick in just under four years would amount to a monumental accomplishment for Trump and Senate Republicans, who would help solidify a 6-3 conservative majority on the court for years to come. If confirmed, Barrett, 48, would be the youngest justice on the court.
But that achievement may come at a cost, as Democrats predicted a voter backlash against the GOP for confirming a conservative whose jurisprudence is the polar opposite of liberal icon Justice Ruth Bader Ginsburg, who died last month.
Citing her past statements and writings, Democrats repeatedly warned that Barrett could be a vote to overturn the landmark decision guaranteeing a woman’s right to an abortion, may undermine same-sex marriage and could put key health-care protections at risk.
Leadership aides declined to lay out a precise floor timeline for Barrett, but the schedule McConnell mentioned hints at a procedural vote on her nomination sometime Monday, Oct. 26, and a final confirmation vote that Tuesday. Republicans control 53 votes in the Senate, and two are expected to oppose Barrett — Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) — because they did not support holding a confirmation vote for a justice so close to Election Day.
But even with resistance from Collins and Murkowski — and with the latter not having specifically said whether her opposition to the proceedings would equal a “no” vote — Republicans still appeared to have ample support to install Barrett by month’s end. Sen. Mitt Romney (Utah) announced late Thursday he would vote to confirm Barrett.
So Democrats instead focused on making the political case against Barrett, centered primarily on health care and the Nov. 10 oral arguments on the fate of the Affordable Care Act that Barrett is all but certain to be seated in time to hear. The case is California v. Texas.
“Judge Barrett as Justice Barrett may well cast the deciding vote to overturn the Affordable Care Act, with potentially disastrous consequences for a majority of Americans,” Sen. Christopher A. Coons (D-Del.) said Thursday. Referring to the Supreme Court case, Coons added: “President Trump and his administration are arguing in no uncertain terms the court must tear down the entire law,” and its protections for those with preexisting medical conditions.
Even Sen. Lindsey O. Graham (R-S.C.), the committee’s chairman who is in a hotly contested reelection race, acknowledged the electoral risk facing his own party, telling Democrats at one point: “Y’all have a good chance at winning the White House.”
During her nearly 20 hours of testimony over two days, Barrett declined to share her legal views on abortion rights, health care, voting rights, immigration, presidential power and climate change, seeking to separate her academic writings from how she might rule if confirmed.
In rebuffing Democrats, she left them exasperated.
“I’d be afraid to ask her about the presence of gravity on Earth,” Sen. Richard J. Durbin (D-Ill.) said Thursday.
Democrats also criticized the GOP for muscling through a nominee so close to the election when millions of Americans are voting, with the rancor over Republicans blocking President Barack Obama’s choice of Merrick Garland in 2016 still palpable.
Sen. Sheldon Whitehouse (D-R.I.) raised the possibility of payback if Democrats win the Senate.
“Don’t think that when you have established the rule of ‘Because we can,’ that should the shoe be on the other foot, you will have any credibility to come to us and say, ‘Yeah, I know you can do that but you shouldn’t,’ ” Whitehouse said.
Yet the four-day proceedings and the Democrats’ stewardship of them produced internal divisions within the party about how aggressive the senators should have fought Barrett’s confirmation, which was a steep uphill from the start considering Republicans control the votes, the committee and the floor.
One particular target of ire by the left was Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee who has long been distrusted by liberals. At the conclusion of the hearing, she thanked Graham for how he led the proceedings, and the two maskless senators hugged — amid a pandemic.
“This has been one of the best Senate hearings I have participated in,” Feinstein told Graham in an exchange gleefully promoted by Senate Republicans. “Thank you for your fairness and opportunity of going back and work. It leaves one with a lot of hopes.”
Demand Justice, a liberal advocacy group focused on the judiciary, on Thursday called on Feinstein to step down as the panel’s top Democrat. If she won’t do so voluntarily, then other Democratic senators needed to intervene, the group said.
“She has undercut Democrats’ position at every step of this process, from undermining calls for filibuster and court reform straight through to thanking Republicans for the most egregious partisan power grab in the modern history of the Supreme Court,” said Brian Fallon, the group’s executive director who is a former top aide to Senate Minority Leader Charles E. Schumer (D-N.Y.).
Feinstein said Democrats were limited in what they could accomplish with the GOP in control. “When Republicans signaled they’d move ahead in the face of all objections, the only thing we could do was show this nominee would radically alter the court, and we accomplished that,” she said, adding that she would vote against confirmation.
The final day of Barrett’s confirmation hearings played out much like the previous three: Republicans aiming to prove her eminent qualifications to be a justice, while Democrats attempted to portray what they said would amount to a significant rollback of health care protections, gun restrictions and abortion rights if Barrett were confirmed.
One of the strongest testimonials for Barrett’s confirmation came from Laura Wolk, the first blind woman to clerk on the Supreme Court and a former student of the judge.
Testifying in person, Wolk described how she initially struggled academically at Notre Dame Law School because she relied on assistive technology that never materialized because of bureaucratic obstacles. Wolk said she spoke to Barrett, who told her: “This is no longer your problem. This is my problem.”
Wolk said she got the special technology that enabled her to succeed at law school and led to her clerkship on the Supreme Court.
“Those who have had the benefit of knowing Amy Coney Barrett understand that she possesses a boundless font of energy and a radical sense of love that she is ever ready to pour out,” Wolk said, adding, “Judge Barrett will serve this country with distinction.”
Democrats also put forward witnesses with similarly emotional testimonies, but in trying to make the case against confirming Barrett, currently a judge on the U.S. 7th Circuit Court of Appeals.
An abortion rights advocate who terminated her pregnancy as a teenager testified how being able to obtain an abortion helped pave the way for a life that now includes three children and a career as a small-business owner.
Crystal Good is a West Virginia woman who, at 16, was granted a special court order to get an abortion without parental consent. She told senators that she had been sexually assaulted for years by her stepfather as a child and that because of the years of abuse she did not feel comfortable trying to get permission from her mother when she got pregnant.
“Who I am today is only possible because at 16 years old I had access to an abortion,” Good said. “President Trump has been clear that he would appoint justices who would overturn Roe v. Wade. Unfortunately, through learning about Judge Barrett’s record, I understand why the president believes she passes that test.”
Officials from an independent committee from the American Bar Association also detailed how Barrett earned a “well-qualified” rating to sit on the court. Pamela Roberts, a Columbia, S.C., lawyer who helped lead the evaluation, read to the committee some descriptions of the outside input the ABA received on Barrett — including “whip smart,” an “intellectual giant with people skills and engaging warmth” and “without question, the smartest student I’ve ever taught” from a former professor.
Because of the pandemic that significantly reduced the number of people who could participate in person, the energy of the opposition against Barrett seemed much less palpable than that of Trump’s two previous nominees to the Supreme Court.
A few dozen demonstrators from liberal advocacy groups gathered outside the Hart Senate Office Building on Thursday, waving signs that read “Save Roe” and “No confirmation without inauguration.” Sen. Cory Booker (D-N.J.), one of a handful of Democratic senators who spoke to the protesters during a hearing break, urged them to make their voices heard.
“We’ve got to turn fear into fight,” Booker said. “It’s time to mobilize.”
Erica Werner contributed to this report.