Amy Coney Barrett hearings: Republicans got what they wanted in their devil's bargain with Trump

Analysis: Since 2017, McConnell and Trump have confirmed 53 appeals court judges, 161 federal district court judges, and three of the Supreme Court’s nine justices

Griffin Connolly
Thursday 15 October 2020 23:18
Amy Coney Barrett fails to name five freedoms guaranteed by First Amendment

When the Senate confirms Supreme Court nominee Amy Coney Barrett two weeks from now, just days before the 2020 presidential election, it will be the capstone for Senate Majority Leader Mitch McConnell’s efforts over the last four years to remake the federal judiciary in his conservative image.

It could mean the political death of four Republicans on the Senate Judiciary Committee, most notably Chairman Lindsey Graham, who is in a tossup race for re-election in deep-red South Carolina.

But for Mr McConnell, whose party most elections experts predict is poised to lose its Senate majority, the presidency, and even more seats from its minority in the House this November, it has all been worth it.

Since the beginning of 2017, Mr McConnell will have confirmed 53 appeals court judges, 161 federal district court judges, and three of the nine Supreme Court justices.

More than one out of every four federal judges in the US have been chosen by Mr Trump and confirmed in Mr McConnell’s Senate.

The appointment of those conservative legal minds to the court — men and women who were hand-picked by the president, in his own words, to roll back Obamacare, women’s access to abortion, and gun control measures — is “the most significant, long-lasting accomplishment of the last four years,” Mr McConnell is fond of saying.

Over four days of hearings this week, Ms Barrett, Mr Trump’s pick to replace the late Justice Ruth Bader Ginsburg, resolutely held her tongue on how she might rule on certain cases as a Supreme Court justice — from challenges to Obamacare, Supreme Court precedents on women’s access to abortions and birth control, gun rights, presidential abuse of power, and any 2020 election disputes.

News headlines from her two days answering senators’ questions this week dealt more with what Ms Barrett hasn’t said than what she has said, as time and again she stonewalled dozens of queries from Democrats as well as Republicans.

"You are pushing me to try to violate the judicial canons to offer advisory opinions, and I won't do that," she bluntly responded to Senator Richard Blumenthal of Connecticut, who had been cross-examining her about any potential challenges to the court’s 2015 Obergefell v Hodges ruling that enshrined marriage as a constitutionally guaranteed right to same-sex couples.

Democrats get political

With no procedural weapon to torpedo her nomination, nor any heavy ammunition to assassinate her character, Democrats used the hearings mostly as a political platform to bludgeon their Republicans colleagues for their naked hypocrisy on seating a Supreme Court justice in a presidential election year (which they refused to do in 2016), decry “conservative judicial activism,” and pound away at the GOP’s more than decade-long effort to dismantle Obamacare.

Mr Trump has vowed on numerous occasions over the last several years that he would only appoint judicial nominees who would roll back Obamacare and Roe v Wade, the Supreme Court’s landmark 1973 decision guaranteeing women’s abortion rights.

It was one of his first campaign promises in 2015, when he announced he would run for president.

“If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare,” Mr Trump wrote at the time, referring to the Supreme Court chief justice who cast the decisive vote in a 5-4 2012 decision to uphold Obamacare.

Appointing federal judges who oppose Obamacare, Roe v Wade, and Obergefell v Hodges has been part of the official Republican party platform in both 2016 and 2020.

“That is the president’s statement. So when we react to that, don’t act as if we’re making this stuff up. This is what President Trump said. This is what your party platform says: ‘Reverse the Obamacare cases,’” Democratic Senator Sheldon Whitehouse of Rhode Island said on Tuesday.

Senator Kamala Harris delivered a blistering campaign-like speech at Tuesday’s hearing targeting Mr Graham and Senate Judiciary members John Cornyn of Texas, Joni Ernst of Iowa, and Thom Tillis of North Carolina over their support for the GOP’s mission in the courts.

Each of those Republican senators is facing hotly contested re-election battles this fall.

Ms Harris rattled off the numbers of how many people in each of their home states would lose their health insurance if the Supreme Court — with Ms Barrett on the bench instead of Justice Ginsburg — shreds Obamacare.

A Democratic wedge

The Republicans’ Supreme Court victory with Ms Barrett’s pending confirmation has even driven a wedge in the Democratic party between outside progressive groups and traditionalist insiders over how they ought to have approached the hearings.

On Thursday, several prominent liberal activists combating the conservative takeover of the courts called for the head of the top Democrat on the panel, California Senator Dianne Feinstein, for choosing to participate in hearings which she and other Democrats on the panel have decried as “illegitimate”.

Although Ms Feinstein was powerless to stop the GOP majority from ploughing ahead with the hearings, many liberal activists believe she and the Democrats should have boycotted the hearings — or at least have cast aside decorum and dragged the hearings down into the mud by more aggressively attacking Republicans for holding them in the middle of an election where millions of Americans have already cast early ballots.

“It's time for Sen Feinstein to step down from her leadership position on the Senate Judiciary Committee. If she won't, her colleagues need to intervene,” Brian Fallon, the executive director of Demand Justice, one of those outside liberal groups, said in a statement on Thursday.

Ms Feinstein inflamed her liberal dissenters even more when she thanked and hugged Mr Graham for guiding the proceedings in a civil manner, even though she believes they should not have been taking place.

"Mr Chairman, I just want to thank you," Ms Feinstein said to Mr Graham as Thursday’s hearing winded down.

"This has been one of the best Senate hearings that I've participated in, and I want to thank you for your fairness and the opportunity of going back and forth,” she said.

To Mr Fallon, those kinds of comments and behaviour from the California senator were unacceptable.

"She has undercut Democrats' position at every step of this process ... straight through to thanking Republicans for the most egregious partisan power grab in the modern history of the Supreme Court,” Mr Fallon said.

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

View comments