Five takeaways from Day One of the Amy Coney Barrett hearings

Democrats use Barrett hearings as campaign infomercial on how they’ve protected Obamacare

Griffin Connolly
Washington
Tuesday 13 October 2020 01:03
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The Senate kicked off confirmation proceedings for Supreme Court nominee Amy Coney Barrett on Monday with opening statements from senators and the judge herself.

While both parties fired partisan jabs at each other and Democrats called for Republicans to cancel the hearings as a presidential election is only three weeks away, decorum and collegiality remained mostly intact.

Here are five takeaways from the first day of the Barrett hearings:

1. Democrats thrust Obamacare forward

With no way to stop Ms Barrett’s nomination from moving out of committee, Senate Democrats are turning the hearings into a weeks-long campaign infomercial on how they are shielding the 2010 health care law commonly known as “Obamacare” from Republican repeal efforts.

“We don't have some clever procedural way to stop this sham, to stop them from rushing through a nominee,” Senator Amy Klobuchar of Minnesota said.

So instead of focusing on procedural matters, Democrats have framed Ms Barrett’s confirmation hearings and this year’s election as referendums on Obamacare’s provisions that have driven down medical costs for Americans with pre-existing conditions.

Ms Barrett has made several public comments in the past about her opposition to the law and a 2012 Supreme Court ruling upholding it. The court is set to hear another challenge to Obamacare shortly after the 2020 presidential election in November.

Each of the 10 Democratic senators on the Judiciary panel on Monday shared the personal stories and displayed life-size pictures of people from their home states with chronic medical conditions who have benefited from Obamacare.

Connecticut Senator Richard Blumenthal told the story of a 10-year-old boy in his state who suffers from Duchenne muscular dystrophy, a chronic disease whose symptoms often include frequent falling, trouble getting up or running, a waddling gait, enlarged calves, and learning disabilities.

“The costs of providing Connor’s care are astronomical,” Blumenthal said.

But Obamacare has “shielded him and his family from arbitrary caps that would have cut off his care if it became too expensive,” the senator said.

“Connor and millions of others like him are why I will oppose your nomination. Your nomination is about the Republican goal of repealing the Affordable Care Act, the Obamacare they seem to detest so much,” he said.

2. Lindsey Graham is in the hot seat

Providing a backdrop to the Barrett hearings this week is the 2020 election, 22 days away, that will determine whether Republicans keep the Senate majority they have enjoyed since 2015.

Judiciary Chairman Lindsey Graham is in a fight for his political life after his Democratic opponent in South Carolina, former state party Chairman Jaime Harrison, raised $57m in the third quarter this year, a record fundraising haul.

Democrats on the panel repeatedly hammered Mr Graham on Monday for doing a 180-degree turn from his previous position opposing seating Supreme Court justices in presidential election years.

Mr Graham has a long history of bipartisan work on immigration reform and judicial nominations, but since Mr Trump took office, he has been one of the president’s most loyal attack dogs.

As recently as 2018, he had committed to not confirming a Supreme Court justice in an election year, sticking by the argument he and Senate Republicans used in 2016 to deny confirmation proceedings for Merrick Garland, whom Barack Obama picked to replace the late Justice Antonin Scalia seven months out from that year’s election. “Use my words against me,” Mr Graham said in 2018.

That’s exactly what Democrats did on Monday.

“Literally half of the Senate had to break their word, contradicting every argument they made four years ago about the American people needing a voice during election year vacancies,” Vermont Democratic Senator Patrick Leahy said. “We shouldn’t be holding a hearing three weeks before the presidential election, when millions of Americans have already voted.”

3. Barrett pitches herself as a Scalia disciple — and mom

As each member of the panel delivered 10-minute statements, Ms Barrett sat alone, at a table in the centre of the Hart Office Building hearing room, and said nary a word. Monday was about the senators, the rest of the week will focus on the nominee.

But once it was her time to speak, the federal appeals court judge and Notre Dame Law School professor defended her record as a constitutional textualist in the mould of Mr Scalia, for whom she clerked.

“His judicial philosophy was straightforward: a judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best known opinions, that is what it means to say we have a government of laws, not of men,” she said.

The courts, she added, “are not designed to solve every problem or right every wrong in our public life.”

In addition to that rough outline of her legal perspective, Ms Barrett — a mother of seven, including two adopted children from Haiti — added a personal flavour to her opening remarks, stressing that while she takes her legal career seriously, she has worked hard not to let her jobs interfere with her roles as a wife, mother and daughter.

“There is a tendency in our profession to treat the practice of law as all-consuming, while losing sight of everything else. But that makes for a shallow and unfulfilling life,” she said.

4. GOP whiffed on court-packing debate

With Democratic presidential nominee Joe Biden refusing to say whether he would try to add more justices to the Supreme Court if Ms Barrett is confirmed, Republicans had a chance to hammer Democrats on an issue that has dogged their leader in recent days.

But the GOP blew that chance by trotting out Senator Ben Sasse to deliver one of his long-winded, academic disquisitions framing “court-packing” as an assault against the (supposed) separation between “politics” and “civics.”

To his credit, the Nebraska Republican, an American historian by trade, dropped a handful of strong one-liners about Democratic wishy-washiness on the subject.

Court-packing is “a partisan suicide bombing that would end the deliberative structure of the United States Senate and make this job less interesting for all 100 of us,” Mr Sasse said.

But Mr Sasse was the 11th senator to speak on Monday. He didn’t get his turn until more than two hours into the hearing.

That’s far too late in the ballgame for the GOP to deliver its first major salvo of the day against the Biden campaign on one of the few issues the mainstream media has seized on that could hamper his broad appeal.

5. Republicans seize control of ‘religious liberty’ narrative

How hard would it be for just one Democratic senator on the Judiciary Committee to speak up and say none of them oppose Ms Barrett’s nomination because of her Catholic faith?

But no one did.

Instead, Republicans, led by Missouri Senator Josh Hawley, accused them of religious “bigotry” for questioning whether her Catholic piety might influence her from observing judicial precedent and judging fairly on politically prickly cases, such as those impacting abortion rights.

“When you tell somebody that they’re too Catholic to be on the bench, when you tell them they’re going to be a Catholic judge, and not an American judge, that’s bigotry,” Mr Hawley said on Monday.

“The pattern and practice of bigotry from members of this committee must stop," he said. "And I would expect that it be renounced.”

For one day at least, it was a baseless notion that Democratic lawmakers are the ones making Ms Barrett’s faith an issue — not a single one mentioned it in their opening statements.

But by choosing not to even swat it down as a straw man, Democrats have ceded territory before the first question has been posed to the nominee.

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