Democrats acknowledged there is little they can do to stop Barrett’s confirmation. So they seemed determined to use the hearings to portray Republicans as a threat to the Affordable Care Act, and the nomination as a last-ditch effort to save Trump should next month’s election lead to litigation in the Supreme Court.
On optics alone, Sen. Cory Booker (D-N.J.) seemed to speak for everyone when he said, “There is nothing about this that is normal.”
The nominee, who spoke for just 12 minutes, wore a black face mask for nearly the entire hearing. Several members of the Senate Judiciary Committee participated remotely, one because he has tested positive for the coronavirus. In a first, the Architect of the Capitol submitted a letter certifying that the hearing room met Centers for Disease Control and Prevention safety regulations.
And when the 48-year-old Barrett, nominated by Trump after Justice Ruth Bader Ginsburg’s death less than a month ago finally spoke, it was from a table that had just been cleared of anti-bacterial wipes and hand sanitizer.
She rarely strayed from remarks released by the White House on Sunday, in which she pledged a nonpartisan and deferential approach to judging.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” said Barrett, a Notre Dame law professor who for the last three years has served on the U.S. Court of Appeals for the 7th Circuit. “The public should not expect courts to do so, and courts should not try.”
She added: “I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written. And I believe I can serve my country by playing that role.”
But Barrett, with her husband Jesse and six of her seven children behind her, was largely a bystander on the hearing’s opening day.
Instead, Republicans and Democrats on the committee talked at each other for about five hours. Questioning of the judge will begin Tuesday morning.
Barrett’s replacement of the liberal Ginsburg would be the court’s biggest ideological swing since Justice Clarence Thomas took the seat of retiring civil rights icon Thurgood Marshall nearly 30 years ago.
Democrats portrayed Barrett’s “rushed” nomination as, variously, an attempt to install a justice who will oppose the Affordable Care Act in a case to be heard next month, a backstop for what the president has said is likely to be a contested election outcome and a power grab by Republicans.
The Republican-led Senate in 2016 refused even to grant a hearing when President Barack Obama that March nominated Judge Merrick Garland to fill the seat of Justice Antonin Scalia, who had died the previous month.
Judiciary Committee Chairman Sen. Lindsey O. Graham (R-S.C.) pledged at the time he would never consider someone nominated in a presidential election year. He only obliquely referred to the broken pledge Monday.
“There’s nothing unconstitutional about this process,” said Graham, who four years ago told people to “use my words against me” if he backtracked. “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.”
There seems little Democrats can do to prevent a narrow majority of Republicans to confirm her in a floor vote, which Graham said would come Oct. 29.
“We do not have some secret, clever procedural way to stop this sham. Let’s be honest,” Sen. Amy Klobuchar (D-Minn.) said at a post-hearing news conference.
Instead, Democrats decorated the hearing room with posters of constituents — “Laura,” “Shari,” “Conner” — who they said would be hurt if the Supreme Court agrees with the challengers in a lawsuit that a key component of Obamacare is unconstitutional, and that the entire law must fall.
The act has survived two challenges at the Supreme Court, and Barrett, as a law professor, has written critically of the majority opinions in both.
Democratic vice-presidential candidate Sen. Kamala D. Harris (Calif.), a member of the committee, participated remotely from her office to draw attention to what some Democrats labeled an unsafe hearing. She had a copy of a children’s book about Ginsburg, “I Dissent,” propped up behind her.
“They are trying to get a justice onto the court in time to ensure they can strip away the protections in the Affordable Care Act,” Harris said in remarks directed more at the public than Barrett. “And if they succeed, it will result in millions of people losing access to health care at the worst possible time, in the middle of a pandemic.”
Democrats on Tuesday are likely to pressure Barrett to recuse herself from that case and any arising from the election.
“Your participation in any case involving Donald Trump’s election would immediately do explosive, enduring harm to the court’s legitimacy and your own credibility,” Sen. Richard Blumenthal (D-Conn.) said. “You must recuse yourself.”
Barrett has not indicated that is a possibility.
After the hearing, Republicans deflected the Democrats’ rigid focus on the Affordable Care Act and defended Barrett from the assumption that she would be an automatic vote to dismantle Obamacare in court.
“Her job will be to talk about the law and how you would apply the law to any litigation — whether it be guns, health care, abortion, campaign finance,” Graham told reporters. “I think she’ll do a . . . good job of understanding the role of a judge is different from that of us.”
The challenge to Obamacare is being brought by Republican-led states. The Trump administration is supporting the effort.
Confident that they have the votes to confirm, GOP senators went out of their way to praise Ginsburg, saying she is emblematic of a time when nominees were confirmed for their qualifications, regardless of their ideologies.
They recounted her friendship with Barrett’s mentor, Scalia, even though the two disagreed on most issues. They said Barrett would bring the same mind-set. But there was no mention of the fact that Ginsburg told her granddaughter that her dying wish was her replacement by made by the winner of the election.
The GOP senators described Barrett as a breath of fresh air for the court, a woman raised in the South and educated in the law in the Midwest, at Notre Dame, rather than Harvard or Yale, which produced the other justices.
“I can’t help but be so proud . . . as a fellow woman, fellow mom, fellow Midwesterner,” said Sen. Joni Ernst (R-Iowa), adding “I see you for who you are.”
Barrett’s home-state senator, Mike Braun (R-Ind.), called the nominee a “legal titan who drives a minivan,” as comfortable at a football tailgate as she is in the academic ivory tower.
Several Republicans noted she would be only the fifth woman to serve on the court and, as Barrett herself noted, the only one with school-age children. (The last four men confirmed to the court had school-aged children, but that did not generate such praise.)
The Republican senators also spent considerable time defending Barrett against attacks that never came, for her religious convictions and membership in a charismatic Christian organization.
Democrats seemed to have learned their lesson from Barrett’s 2017 confirmation hearing to the appeals court. Sen. Dianne Feinstein (D-Calif.) questioned Barrett about an article the professor had written about the moral responsibilities of a Catholic judge.
Feinstein’s remark — that “the dogma lives loudly within you” — backfired.
No Democrat at Monday’s hearing talked about Barrett’s Catholicism, and Democratic presidential nominee Joe Biden, himself a practicing Catholic, had delivered the party line earlier in the day.
“No, faith should not be considered,” the former vice president told reporters before boarding his plane in Delaware en route to a campaign event in Ohio. “No one’s faith should be questioned.”
But he added: “This nominee said she wants to get rid of the Affordable Care Act. The president wants to get rid of the Affordable Care Act. Let’s keep our eye on the ball.”
Still, Sen. Josh Hawley (R-Mo.) said there had been “one attack after the other” on Barrett by Democrats and the media, mentioning stories about the judge’s membership in the charismatic group, People of Praise.
“When you tell somebody they are too Catholic to be on the bench, when you say they will be a Catholic judge, not an American judge, that is bigotry,” Hawley said. “The practice of bigotry from members of this committee must stop and I would expect that it be renounced.”
But five of the last six confirmed Supreme Court justices were raised in the Catholic faith, and the only talk of religion came from Barrett herself.
“I believe in the power of prayer, and it has been uplifting to hear that so many people are praying for me,” she said.
Her benefactor, Trump, was largely quiet about the hearing, except for one tweet that indicated impatience with the process.
“The Republicans are giving the Democrats a great deal of time, which is not mandated, to make their self serving statements relative to our great new future Supreme Court Justice,” he tweeted, apparently unfamiliar with the committee’s rules granting Republicans and Democrats equal time.
Rachael Bade, Karoun Demirjian, Amy Goldstein, Paul Kane, Ann E. Marimow and John Wagner contributed to this report.