The Senate Judiciary Committee hearings for Supreme Court nominee Amy Coney Barrett
kick off Monday morning -- and the questioning of the former Notre Dame
law professor this week will likely steal much of the spotlight away
from the ongoing election between President Trump and Joe Biden,
especially with the debate originally scheduled for Thursday now
cancelled.
The proceedings are expected to last through Thursday:
Senators will spend Monday making their opening statements, followed by
Barrett's opening remarks, before questioning begins Tuesday and will
continue into Wednesday. On Thursday, the Senate will bring in outside
experts to weigh in on the nomination.
Republicans at this point
appear to have the votes needed to confirm Barrett, with only two
members of their 53-person caucus objecting to moving the Barrett
nomination before the election. That means they can afford one
unexpected defection and still have Vice President Pence be able to
break a tie.
It appears unlikely that Republican senators who have
voiced their support for the process would suddenly turn against a
Republican Supreme Court nominee on the substance, however. And
Democrats are largely resigned that they have no procedural tools to
stand in the way of a determined Senate GOP. But Barrett will first have
to survive multiple days of being grilled by senators in front of a
national television audience.
Here's what to watch for in the Amy Coney Barrett confirmation hearings.
1. Do Democrats bring up religion?
Whether
Democrats bring up religion, and how they do it if they do, will be a
key focus of the hearings. Senate Judiciary Committee Democrats have a
history of grilling nominees on their Christian faith, and specifically
Barrett.
Ranking Member Diane Feinstein, D-Calif., during
Barrett's 7th Circuit confirmation hearing in 2017 told Barrett, "The
dogma lives loudly within you, and that's of concern."
The
comments earned Democrats significant bad press and helped make Barrett a
star among Republicans, who have signaled they plan to make any
Democrat comments about Barrett's faith a major issue.
But
Democrats have made clear they are not going to be grilling Barrett on
her religion this time around and instead will focus on Barrett's
perceived stances on the Affordable Care Act (ACA), which faces a
constitutional challenge at the Supreme Court just days after the
presidential election. But Roe v. Wade, the Supreme Court ruling that
prevents states from banning abortion, is also a major issue for
Democrats and they fear Barrett would rule against the precedent and
that her religion might bias her.
Barrett has repeatedly said judges' faith should not impact how they carry out their duties.
"Her
faith is irrelevant, but what is relevant is, what the real issue is,
whether her closely held views can be separated from her ability to make
objective fair decisions with her lifetime appointment," Senate
Judiciary Committee Member Maize Hirono, D-Hawaii, said in response to a
reporter after a press conference last week.
"It comes up, if at
all, in the context of her closely held views," Hirono added after the
reporter followed up, asking whether Barrett's faith should be discussed
at her hearings.
2. Barrett's response on health care
Barrett
before joining the federal bench had been critical of NFIB v. Sebelius,
the Supreme Court ruling that initially upheld the constitutionality of
the ACA during the Obama administration. Democrats are certain to ask
her tough questions about that and California v. Texas, the
constitutional challenge to the ACA set to be argued in early November.
Barrett
almost certainly will dodge any such questions. Judicial nominees tend
to say it would be inappropriate for them to weigh in on any issue that
could come before them on the bench. But how Barrett phrases her answers
on Democrats ACA questions will be closely watched and aggressively
dissected.
Senate Minority Leader Chuck Schumer, D-N.Y., has
already called for Barrett to recuse herself from California v. Texas,
which would be far outside of the realm of judicial norms. Democrats
have also called on Barrett to recuse herself from any election-related
cases simply because she was nominated by Trump.
3. Does Kamala steal the spotlight?
"I
think there's probably more pressure on Kamala to actually engage ...
in a political way than ever before just because of the fact that she's
on the ticket with Vice President Joe Biden," White House Chief of Staff
Mark Meadows said of Sen. Kamala Harris, D-Calif, at a virtual event
for the Article III Project, a group that supports Trump judicial
nominees.
Harris' role in the hearings will be closely watched as
she is not just one of the highest-profile senators on the committee,
but also the Democratic vice-presidential nominee.
Her ticket is
leading significantly in the polls and any misstep could jeopardize
that. But a stellar performance in questioning the nominee by the former
prosecutor could also essentially serve as an hour-long Biden-Harris
campaign commercial.
Senators get 10-minute opening statements, 30 minutes each to question Barrett Tuesday and 20 more on Wednesday.
4. Court-packing fight
As
Joe Biden and Harris steadfastly refuse to tell voters whether they
will pack the Supreme Court if elected, the topic has become one of the
top issues in the presidential election and in the Barrett confirmation
fight.
Many Democrats, including multiple senators, have called
for court-packing, which means adding justices to the Supreme Court by
law and then filling those seats with judges that would approve of your
policies. Former President Franklin Delano Roosevelt proposed to pack
the Supreme Court during his presidency after the Supreme Court
continually ruled against the constitutionality of his New Deal
policies, but it was fiercely opposed even by his own party.
Democrats
more recently have accused Republicans of court-packing by moving to
confirm Barrett and focusing on filling vacant seats in the lower
federal courts, which is not what court packing means.
Expect such accusations to fly from both sides throughout the week, but especially during Monday's opening statements.
5. Heath of GOP members
Three
Republican senators were diagnosed with the coronavirus around the same
time President Trump was, two of whom are on the Senate Judiciary
Committee. Their recoveries will be key in allowing the Senate to
advance Barrett's nomination out of committee and eventually confirm
her.
Sens. Thom Tillis, R-N.C., and Mike Lee, R-Utah, are the
Senate Judiciary Committee members currently on the mend. Tillis said
last week that he is feeling better and believes he will be testing
negative by Thursday for when the committee begins its markup of the
Barrett nomination.
At least one of Tillis or Lee will likely
need to be able to attend in-person on Oct. 22, which is when Judiciary
Committee Chairman Lindsey Graham, R-S.C., plans to hold the committee
vote on Barrett. Then members will need to be on the Senate floor to
vote in-person for her roll call confirmation vote, which is likely to
happen the following week.
But any other Republicans testing
positive -- or Tillis, Lee or Sen. Ron Johnson, R-Wis., taking longer
than expected to recover from the virus -- could pose significant
logistical issues for Republicans and potentially even lead to a delay
in Barrett's confirmation.
6. Campaign element
The
fact remains this entire confirmation process is happening against the
backdrop of a presidential election. Some on the right have even argued that Barrett is now Trump's de facto new running mate.
As
Republicans largely are seen as having the votes to confirm Barrett on
their own terms, success or failure in the hearings this week may
largely be measured based on whether or how they move the presidential
polls.
Watch for what moments the Trump and Biden campaigns are
clipping from the hearings as the presidential election is just over 3
weeks away.
