Government policy must be set by Congress and not the courts, Amy Coney Barrett told a deeply divided Senate judiciary committee as the first day of her confirmation hearings on Monday set in motion a momentous partisan battle, three weeks before the presidential election.
Even before the supreme court nominee began speaking, Democrats argued that the process that got her there – Senate Republicans rushing to confirm her even as the president who nominated her appeared to be in the act of losing an election, perhaps badly – was an act of hypocrisy that would damage the legitimacy of the court.
“I believe Americans of all backgrounds deserve an independent supreme court that interprets our constitution and laws as they are written,” Barrett said in her opening statement. “And I believe I can serve my country by playing that role.”
After listening silently for much of the day’s proceedings, Barrett outlined her judicial philosophy, introduced her family of nine, most of whom were seated behind her, and paid tribute to Ruth Bader Ginsburg, the justice she was nominated to replace.
Barrett, a conservative Christian who has criticized the high court’s decision to uphold the Affordable Care Act (ACA), who has publicly opposed reproductive rights and who was a trustee at a school whose handbook included a stated opposition to same-sex marriage, is seen on the left as part of a power play by Donald Trump and Republicans to cement a conservative majority on the court for a generation.
“Courts have a vital responsibility to the rule of rule of law, which is critical to a free society,” the judge said in a prepared statement, after removing her black face mask. “But courts are not designed to solve every problem or right every wrong in our public life.”
Barring any dramatic revelations or procedural derailments, Republicans are poised to confirm Barrett to a lifetime appointment on the court before the November election.
With the crack of a gavel, Lindsey Graham, Republican of South Carolina and chairman of the committee, opened the four-day proceedings by calling Barrett a judge “the country should be proud of” and defending Republicans decision to hold the nomination hearing amid a pandemic and so close to a presidential election.
“This is probably not about persuading each other unless something really dramatic happens,” Graham acknowledged. “All Republicans will vote yes and all Democrats will vote no.”
Setting the stage for what was to come, he added: “This is going to be a long, contentious week.”
After delivering opening remarks on Monday, Barrett will face questions on Tuesday and Wednesday before witnesses speak on Thursday. Graham said the committee would vote on 22 October.
In their opening statements, Democrats focused on the likely impact of Barrett’s confirmation on healthcare law, abortion rights and same-sex marriage. They displayed life-size photographs of constituents who would lose coverage if the ACA was dismantled.
“We are now just 22 days from the election,” said Dianne Feinstein of California, the ranking Democrat. “Voting is under way in 40 states. Senate Republicans are pressing forward, full speed ahead, to consolidate a court that will carry their policies forward with, I hope, some review for the will of the American people.”
Republicans sought to emphasize Barrett’s sterling credentials and compelling personal story, involving working as a law professor while raising seven children, two adopted from Haiti and one with Down’s syndrome.
Barrett was a “legal titan who drives a minivan” and was as comfortable at a tailgate party as she was in the Ivory tower, Senator Mike Braun, a Republican from her home state of Indiana, said, introducing the judge to the panel.
In their remarks, several Republican senators accused Democrats of anti-Catholic bigotry, in hopes of stirring a political backlash from their base. They pointed to recent reports about Barrett’s involvement with the insular religious community, People of Praise, and reached back to her 2017 nomination for an appeals court seat, in which some Democrats asked if her personal convictions might prevent her from ruling impartially.
But Democrats have studiously avoided the subject of Barrett’s faith and on Monday, only Republicans raised the issue. Instead, Senate Democrats focused only on what they believed was at stake if she was confirmed to the court. They held up posters of Americans who risk losing coverage if the healthcare law was dismantled.
They warned that Trump was rushing Barrett’s confirmation in the event a potential legal challenge to the results of the 3 November election reaches the Supreme Court. In recent days, Trump has said he expects that very scenario and wanted his nominee confirmed before election to weigh in on the case.
“You must recuse yourself,” Senator Richard Blumenthal, Democrat of Connecticut, implored Barrett, during a statement in which he said explicitly that he would vote against her confirmation. “The American people are angry and for good reason. It is a break the glass moment.”
Democrats argue that the winner of the election should nominate the next justice, as was the case in 2016, after the death of Antonin Scalia. Upon Scalia’s death in February, the majority leader, Mitch McConnell, took the unprecedented step of refusing to hold a hearing for Barack Obama’s nominee, Merrick Garland, explaining that it was too close to a presidential election.
Trump thrilled conservatives and anti-abortion activists when he nominated Barrett to fill the vacancy created by the death of Ginsburg, a liberal icon who championed women’s rights. Barrett is Trump’s third appointment, after Neil Gorsuch and Brett Kavanaugh, all of whom he has touted as “pro-life”.
According to a Washington Post-ABC News poll, a slight majority of Americans oppose a confirmation so close to the election. The same survey found 62% believe the court should uphold Roe v Wade, the 1973 decision that made abortion legal, while just 24% say it should be overturned.
Trump has said Barrett could help overturn the landmark ruling.
But in her remarks, Barrett hinted at her response to the questions that will come about her views on abortion and healthcare.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” she said. “The public should not expect courts to do so, and courts should not try.”
Senator Kamala Harris, a Democrat from California and the running mate of presidential nominee Joe Biden, said that in choosing Barrett, Trump nominated someone who threatens to “undo her legacy” as a champion of civil rights and equality.
Testifying before the committee remotely because of the pandemic, Harris said the court was often the “last refuge for equal justice when our constitutional rights are being violated” and warned that “equal justice under law is at stake”.
McConnell has already lost the support of Susan Collins, a Republican from Maine in a tight re-election fight. Alaska senator Lisa Murkowski also said the Senate should wait.
Complicating this, however, is a coronavirus outbreak at the White House, which infected the president. Two Republicans on the committee – Mike Lee of Utah and Thom Tillis of North Carolina – tested positive after attending a Rose Garden ceremony for Barrett on 26 September. Two others – Ben Sasse of Nebraska and Ted Cruz of Texas – subsequently self-quarantined.
Lee, who Graham said had been “cleared by his physician”, and Sasse were present on Monday. Tillis and Cruz participated remotely.
Those present wore masks and were separated. Hand sanitizer and wipes dotted the dais. No members of the public were permitted into the committee room, eliminating the possibility of protests.
“These are not normal times,” Senator Mazie Hirono, a Democrat from Hawaii observed, and decried the “hypocritical, illegitimate process” that led to this hearing.
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