At Barrett Hearings, G.O.P. Senator Concedes He Expects Party-Line Vote

Judge Amy Coney Barrett appearing before the Senate Judiciary Committee in the Capitol on Monday.
Credit…Erin Schaff/The New York Times

A deeply divided Senate Judiciary Committee kicked off four days of contentious confirmation hearings on Monday for Judge Amy Coney Barrett, President Trump’s nominee for the Supreme Court, drawing battle lines that could reverberate through the election.

Senator Lindsey Graham, Republican of South Carolina and the committee’s chairman, left little doubt about where the proceedings were heading, gaveling open “the hearing to confirm Judge Amy Coney Barrett to the Supreme Court,” rather than saying it was a hearing to consider her nomination.

“This is probably not about persuading each other unless something really dramatic happens,” Mr. Graham added a short time later. “All the Republicans will vote yes, all the Democrats will vote no.”

Democrats arrived ready to go on the offensive, portraying Judge Barrett’s nomination as an election-season power grab by Mr. Trump and Republicans and rank hypocrisy after the yearlong blockade in 2016 against President Barack Obama’s high court nominee, Merrick B. Garland. They characterized Judge Barrett as a conservative ideologue who would overturn the Affordable Care Act, invalidate abortion rights and side with the president in any legal disputes arising from the Nov. 3 election.

“We are now just 22 days from the election, Mr. Chairman. Voting is underway in 40 states,” said Senator Dianne Feinstein of California, the top Democrat on the panel. “Senate Republicans are pressing forward, full speed ahead, to consolidate the court that will carry their policies forward with, I hope, some review for the will of the American people.”

Republicans tried to deflect those charges and redirect attention toward Judge Barrett’s sterling résumé and compelling personal story. But their goal above all else was speed — pushing through the confirmation before Election Day — and it appeared that they had the votes to install her and cement a 6-to-3 conservative majority on the court before the end of October. Senator Mike Lee, Republican of Utah, who announced he tested positive for coronavirus on Oct. 3, was on hand, masked, to lend his support.

Mr. Graham defended the process, saying there was nothing “unconstitutional” about confirming a new justice so close to the election. As for Judge Barrett, he deemed her a worthy successor to Justice Ruth Bader Ginsburg, whose death at 87 last month created a vacancy on the court.

“In my view, the person appearing for this committee is in the category of excellent, something the country should be proud of,” Mr. Graham said.

Monday’s hearing was expected to take most of the day as each member of the Judiciary Committee gets 10 minutes to deliver an opening statement. Judge Barrett will be the last to speak, and is expected to give a short, mostly biographical statement before taking questions later in the week.

Protesters dressed in personal protective equipment outside the Supreme Court on Monday.
Credit…Anna Moneymaker for The New York Times

Judge Barrett’s confirmation hearing looks unlike any other in modern history, thanks to the coronavirus pandemic. Republicans have insisted on going ahead notwithstanding a virus outbreak in Washington that appears to be linked to the crowded White House ceremony two weeks ago where Mr. Trump introduced Judge Barrett as his nominee. The president and most other attendees at the gathering were maskless. Mr. Trump has since tested positive for the virus, as have several other guests.

At least two Republican senators on the Judiciary Committee, Mike Lee of Utah and Thom Tillis of North Carolina, also tested positive after attending the event. Mr. Lee was on hand in the hearing room on Monday morning, having met the “criteria to end Covid-19 isolation for those with mild to moderate disease” according to a letter he received from the attending physician of Congress, Dr. Brian P. Monahan.

The committee room, Hart 216, had been transformed into a sparse room, with just a handful of reporters, guests and staff in addition to most senators and Judge Barrett.

The proceedings are playing out partially by video to allow senators who may be sick or worried about infection to participate remotely. No members of the public — including protesters whose confrontational style set the tone for other confirmation fights — are allowed in the hearing room.

Compared to previous hearings, protesters were left to block the entrance to Senate buildings, carrying posters and signs aimed at swaying senators for or against the confirmation.

Most senators, except for Mr. Graham and Senator Dianne Feinstein of California, the top Democrat, had kept their masks on once the hearing began. A few senators, including Senators Kamala Harris of California, the Democratic nominee for vice president, Senator Patrick Leahy, Democrat of Vermont, and Mr. Tillis were remote for the hearing. Senator Ted Cruz, Republican of Texas, also joined the hearing remotely as he finished out a period of self-quarantining after coming into contact with Mr. Lee. Mr. Cruz is expected to come to the hearing on Tuesday in-person, a spokeswoman said.

Senate Republicans on Monday issued a lengthy document defending their decision to proceed, quoting a letter from J. Brett Blanton, the architect of the Capitol, to Mr. Graham in which he said the seating arrangements for the hearing had been designed “in accordance with established guidelines and in consultation with the Office of Attending Physician to comply with Covid-19 safety protocols.”

Mr. Blanton said his office was also following ventilation guidelines from the Centers for Disease Control and Prevention and the American Society of Heating, Refrigerating and Air-Conditioning Engineers, and that ventilation system in the room being used had “been evaluated to ensure they meet or exceed current standards.”

Mr. Graham addressed the safety of holding a hearing during the pandemic first thing, saying that he doubted “there is any room in the country that’s been given more attention and detail to make sure it’s C.D.C. compliant.”

He sought to dismiss criticisms from Democrats who said the hearings were unsafe and unnecessary to convene so quickly.

“There are millions of Americans, cops, waitresses, nurses, you name it, going to work today to do their job and we’re going to work in the Senate to do our job,” he said.

Should any more Republican senators fall ill, it could complicate Judge Barrett’s chances of confirmation. With two members of the party, Senators Susan Collins of Maine and Lisa Murkowski of Alaska, already opposed to proceeding before Election Day, Republicans, who control the Senate by a 53-to-47 majority, can afford to lose only one more vote.

At Judge Barrett’s desk, she had been given a box of Clorox wipes and a sizeable bottle of Purell, in addition to the customary bottles of water and note pad, and several other senators had their own Purell bottles and boxes of wipes. Her family was seated behind her, with Mark Meadows and Pat Cipollone, masked and distanced, seated on her other side.

Republican Senators Mike Lee of Utah, left, Charles E. Grassley of Iowa, center, and Lindsey Graham of South Carolina before the hearing.
Credit…Erin Schaff/The New York Times

Though fights over Supreme Court nominees have become increasingly bitter in recent years, no modern confirmation battle has played out so close to a major presidential election. That contest, and the race for control of the Senate, is omnipresent in the hearings, shaping the strategies of both parties.

Republicans — who are trailing in the polls — hope to use the confirmation fight to stoke enthusiasm among their base, but also coax back independent voters, especially women, who are abandoning the party in droves. To that end, they plan to largely bypass the policy implications of the court’s rightward tilt in favor of Judge Barrett’s personal story, stressing her legal expertise as an appeals court judge and Notre Dame law professor, and her experience as a working mother of seven.

Senator John Cornyn, Republican of Texas, said his constituents “want to know how you do it. How do you and your husband manage two full-time professional careers and at the same time manage your large families?”

“I’ll bet there are many young women, like my own two daughters, who marvel at the balance you have achieved,” Mr. Cornyn added.

Republicans also want to try to goad Democrats into questioning Judge Barrett’s impartiality based on her Catholic faith, as they did during a 2017 hearing on her nomination for an appeals court seat. Republicans believe if Democrats take the bait, they could stir up a political backlash like the one that helped motivate their base during the 2018 confirmation battle over Justice Brett M. Kavanaugh.

Democrats are taking the inverse approach. They are attempting to hammer Republicans on what Judge Barrett’s confirmation could mean for a series of popular policies and potent campaign-trail issues, like the health care law, abortion rights and same-sex marriage. They will point to Judge Barrett’s record to argue she could undermine all three if confirmed.

As Ms. Feinstein began speaking, aides unveiled a series of massive posters showing selfies and family photos of children and families who Democrats said would be impacted by the repeal of the Affordable Care Act.

“We will examine the consequences if — and that’s a big if — Republicans succeed in rushing through this nomination before the next president takes office,” Ms. Feinstein said, referring to the case the Supreme Court is set to hear the week after the election that challenges the constitutionality of the Affordable Care Act.

Before the hearing got underway, Judge Barrett got a stamp of approval from the American Bar Association, which rates the qualifications of nominees for the federal bench. But even the professional group appears to have been somewhat split over her nomination. A majority of the group’s standing committee deemed her “well qualified,” while others determined she was simply “qualified.”

The Supreme Court on Monday.
Credit…Anna Moneymaker for The New York Times

Judge Amy Coney Barrett, President Trump’s pick for the Supreme Court, has compiled an almost uniformly conservative voting record in cases touching on abortion, gun rights, discrimination and immigration. If she is confirmed, she would move the court slightly but firmly to the right, making compromise less likely and putting at risk the right to abortion established in Roe v. Wade.

Judge Barrett’s judicial opinions, based on a substantial sample of the hundreds of cases that she has considered in her three years on the federal appeals court in Chicago, are marked by care, clarity and a commitment to the interpretive methods used by Justice Antonin Scalia, the giant of conservative jurisprudence for whom she worked as a law clerk from 1998 to 1999.

But while Justice Scalia’s methods occasionally drove him to liberal results, notably in cases on flag burning and the role of juries in criminal cases, Judge Barrett could be a different sort of justice.

“There may be fewer surprises from someone like her than there were from Justice Scalia,” said Brian T. Fitzpatrick, a former law clerk to the justice and a law professor at Vanderbilt University. “She is sympathetic to Justice Scalia’s methods, but I don’t get the sense that she is going to be a philosophical leader on how those methods should be executed.”

One area in which almost no one expects surprises is abortion. Mr. Trump has vowed to appoint justices ready to overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Groups opposing abortion have championed Judge Barrett’s nomination. And her academic and judicial writings have been skeptical of broad interpretations of abortion rights.

Judge Barrett will doubtless tell senators that the Roe decision is a settled precedent, as she did when Mr. Trump nominated her to the appeals court in 2017. And the Supreme Court may not hear a direct challenge to Roe anytime soon, preferring instead to consider cases that could chip away at abortion rights.

But when the day comes, many of Judge Barrett’s supporters are convinced that she will not flinch. Justice Scalia wrote that the Constitution has nothing to say about abortion and that states should be allowed to decide the question for themselves. There is no reason to believe Judge Barrett disagrees.

Overruling a major precedent is no small undertaking, of course. But Judge Barrett has indicated that some precedents are more worthy of respect than others.

In a 2013 law review article, she examined the role of the doctrine of stare decisis, which is Latin for “to stand by things decided” and is shorthand for respect for precedent. The doctrine is, Judge Barrett wrote, “not a hard-and-fast rule in the court’s constitutional cases,” and she added that its power is diminished when the case under review is unpopular.

“The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”

At the end of the day, Judge Barrett will have a chance to reintroduce herself uninterrupted by partisan bickering, and she intends to highlight her commitment to family and the legal philosophy championed by Antonin Scalia, the justice who died in 2016 and for whom she clerked.

According to opening remarks circulated by the White House on Sunday, Judge Barrett plans to spend ample time discussing her love of family — describing each of her seven children individually — her upbringing as a Catholic in New Orleans, and her experiences as a student, clerk and then law professor at Notre Dame. She will specifically pay tribute to two women — Justices Sandra Day O’Connor and Ruth Bader Ginsburg — who broke the Supreme Court’s glass ceiling.

“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place,” she plans to say. “I will be forever grateful for the path she marked and the life she led.”

But her judicial philosophy could not be more opposite from that of the woman whose seat she intends to fill. Like Justice Scalia, Judge Barrett is described as a textualist and originalist. That means she prefers to interpret the plain words of a legal statute over the intent of the lawmakers and to read the Constitution based on the understanding of its framers.

“Courts are not designed to solve every problem or right every wrong in our public life,” Judge Barrett plans to say. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”

After Monday’s opening statements, senators will dive into multiple, extended rounds of questioning with Judge Barrett on Tuesday and Wednesday. Though the format will be different — and there could be some elements of surprise — do not expect to learn much about Judge Barrett’s specific legal views on the most politically sensitive matters that could come before the court. Like earlier nominees, she is expected to refuse to answer questions that might compromise her ability to rule impartially on future cases.

On Thursday, the committee will convene again to hear from a panel of outside witnesses testifying in favor of and opposition to Judge Barrett’s confirmation. Afterward, it will immediately begin deliberating over whether to recommend that she be confirmed. The debate will be fierce and partisan, but under the rules, Democrats will insist the panel wait a week to vote on her nomination.

As of now, the Judiciary Committee plans to reconvene on Oct. 22 to approve the nomination. If all members of the panel are present, Republicans would have a clear majority and easily win the vote. But if any Republican lawmakers were unable to attend, they could quickly find themselves at a standstill.

If approved, the nomination would then go to the full Senate for consideration. Senator Mitch McConnell, Republican of Kentucky and the majority leader, has not said when he will schedule a final vote, but it is expected to occur early the week of Oct. 26, in time for senators to race home for one final week of campaigning before the election.

Senator Pat Leahy, Democrat of Vermont, speaking remotely during the hearing.
Credit…Erin Schaff/The New York Times

Democrats criticized Republicans for prioritizing Supreme Court confirmation hearings over a coronavirus stimulus bill, accusing them of “wearing blinders” to the suffering of American families and businesses.

“We shouldn’t spending time on this when we are doing absolutely nothing to pass a much-needed Covid bill,” Senator Patrick Leahy of Vermont, the top Democrat on the Senate Appropriations Committee, declared in his opening remarks. He said his Republican colleagues “have nothing to say” about the thousands of Americans who had died from the virus.

Some Republican senators and aides have privately warned that with just three weeks before Election Day, there is not enough legislative time to hold votes both to confirm Judge Barrett and to agree on and pass a relief package that would infuse the economy with tens of billions of dollars and provide federal funds to American families, businesses, and schools. When he abruptly cut off talks last week, President Trump said Republicans should focus instead on installing his Supreme Court nominee.

But on Monday, Mr. Trump, clearly monitoring the proceedings, said on Twitter that the Senate could do both — if Republicans would block Democrats from even speaking at the confirmation hearings.

Mr. Trump’s confidence was unfounded. Republicans were not exactly poised to act on coronavirus stimulus, even if a Supreme Court nomination had not summoned lawmakers back from the campaign trail for a rare October hearing.

Senate Republicans who have not been a part of negotiations between Speaker Nancy Pelosi of California and Steven Mnuchin, the Treasury secretary, revolted on Saturday over the compromise plan under discussion, making it clear in a contentious phone call that they had serious concerns with its size and contents.

The opposition was so severe that Mark Meadows, the White House chief of staff, told senators that he would relay their concerns to Mr. Trump, but “you all will have to come to my funeral” after he delivered their message.







How Supreme Court Confirmations Became Partisan Spectacles

Confirmation hearings for Supreme Court nominees didn’t always exist. But the 19th Amendment, school desegregation and television all contributed to major changes in the process.

“Please raise your right hand.” These are the Supreme Court confirmation hearings — “This is day two.” — you’re probably all familiar with. “Bigly.” “You just said ‘bigly.’” “Bigly.” Big partisan productions — “A charade and a mockery.” “Anything else you want to say, Judge Bork?” — that dominate the headlines and the airwaves. This is how they used to be. [crickets] Yeah, there actually weren’t any. So how did we get from here — [crickets] — to here? We’ll start in 1937 with former Senator Hugo Black, who’s being congratulated. That’s because he’s just been confirmed as a Supreme Court Justice. He’s also been outed as a former member of the Ku Klux Klan. So to explain himself, he gets on the radio. “I did join the Klan. I later resigned. I never rejoined.” People are not happy. They’re basically asking: How could the Senate Judiciary Committee let this guy through? Answer: Since the first hearing back in 1873, for this guy, there were no standard ways of holding hearings for Supreme Court nominees. They didn’t have to go and testify, and the hearings didn’t need to be made public. The senators reviewed the nominees among themselves. But then came a couple of amendments to the Constitution. The upshot is they gave more voting power to the people. So the senators needed to start paying more attention to public opinion. And they’re paying attention when Black’s controversial confirmation drives Americans to ask: Why are these hearings private? It’s a big reason why the next nominee to come along gets a public hearing. And it’s not just a public hearing, it’s the first that includes no-holds-barred questioning by the committee. Things are beginning to change. Then World War II comes, and goes. America is suddenly a superpower. Business booms, suburbs grow. “The protest took the form of a boycott.” And we see the beginning of the modern civil-rights era. In 1954, the court rules to end racial segregation in schools. And this marks a point where we really start to see the court using its power to shape parts of American society. That means Americans take a greater interest in who is on the court. That means even more pressure on senators to vet these candidates. Starting with the first nominee after the Brown decision, almost every nominee will have a public hearing. Now change is in full swing. “I Have a Dream,” the march from Selma, “The Feminine Mystique.” The court keeps making controversial rulings on race discrimination, gender discrimination, personal privacy. That means more public interest, more pressure on senators, more issues to parse in the hearings. So the hearings get longer. But just wait. 1981 — game changer. “Good evening. Sandra O’Connor —” First woman nominated to the Supreme Court, first nomination hearing to be televised. The longer senators talk, the more TV time they get. The more TV time they get, the more they can posture for voters watching at home. [senators talking] So the more they talk. With the cameras rolling, we’ll see 10 out of the 12 longest hearings ever. One of those is for Robert Bork — “With a negative recommendation of 9 to 5.” — who famously doesn’t make the cut. Now onto the aughts. There’s an 11-year gap between nominees. Meanwhile, America has become more politically divided, so has the Senate. “Over and over again —” “Wait just a second —” “How many times do we do this before —” Here’s Chief Justice Roberts to explain what happened next. “I mean, you look at two of my colleagues, Justice Scalia and Justice Ginsburg, for example. Maybe there were two or three dissenting votes between the two of them.” Yep, three votes against Ginsburg in 1993. No votes against Scalia in 1986. “Now you look at my more recent colleagues and the votes were, I think, strictly on party lines.” That’s pretty much right. “And that doesn’t make any sense.” And that’s how we got here. “I’m not looking to take us back to quill pens.” Very long — “Nah, I just asked you where you were at on Christmas.” [laughter] Always very political — “So your failure to answer questions is confounding me.” — very public Supreme Court confirmation hearings. Also, something else to notice: Sometimes these nominees give pretty similar answers. “The right to privacy is protected under the Constitution in various ways.” “And it protects the right to privacy in a number of ways.” “In various places in the Constitution.” “In a variety of places in the Constitution.” “It’s protected by the Fourth Amendment.” “The Fourth Amendment certainly speaks to the right of privacy.” “It’s founded in the Fourth Amendment.” “The first and most obvious place is the Fourth Amendment.”

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Confirmation hearings for Supreme Court nominees didn’t always exist. But the 19th Amendment, school desegregation and television all contributed to major changes in the process.CreditCredit…Erin Schaff for The New York Times

It wasn’t until the mid-20th century that Supreme Court nominees were subject to public hearings — before then they were considered by senators in mostly closed-door affairs. But changes sweeping the country, including the 19th Amendment, school desegregation and technological advances in television, began to draw the hearings into the spotlight.

In 2018, as the hearing for Justice Brett M. Kavanaugh began, a Times video tracked the evolution of these Supreme Court nomination hearings. Watch how it has unfolded throughout history.

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