Senate Judiciary Chairman Lindsey Graham kicked off the slate of hearings for Supreme Court nominee Amy Coney Barrett on Monday with an appeal for a “respectful” week of debate about her judicial merits.
They mostly managed to keep that outward decorum intact, despite the pitched partisan tenor of members’ opening statements.
While Ms Barrett defended herself as a constitutional textualist in the mould of the late Justice Antonin Scalia, for whom she clerked, Democrats on the panel sought to portray her as an overreaching conservative zealot who would dismantle the 2010 health care law known as Obamacare, even as the US continues to suffer through a coronavirus pandemic that has killed more than 215,000 Americans to date.
Since the death of Supreme Court Justice Ruth Bader Ginsburg, whom Ms Barrett was nominated to replace, Democrats have admonished Republicans to follow their own election-year precedent from 2016 and wait to confirm a new justice until after the next president is seated.
California Senator Kamala Harris, the running mate of Democratic presidential nominee Joe Biden, blasted Republicans at the hearing on Monday for trying to “jam through” Ms Barrett’s nomination amid a US presidential election where millions of Americans have already cast early ballots.
Ms Harris appeared remotely, highlighting Democratic concerns that the hearing room did not meet precautionary Covid-19 protocols. Two Republicans on the Judiciary panel, Senators Mike Lee of Utah and Thom Tillis of North Carolina, tested positive earlier this month for coronavirus after attending a White House event introducing Ms Barrett.
“This hearing has brought together more than 50 people to sit inside a room for hours while our nation faces a deadly airborne virus,” Ms Harris said.
But Republicans have vowed to push on with Ms Barrett’s nomination despite their arguments from 2016 about letting the American people have “a voice” in Supreme Court selections in election years.
While Mr Graham went on the record multiple times over the last four years saying he would not conduct hearings to seat a Supreme Court nominee in an election year like he’s doing now, he defended the Barrett hearings as his constitutional duty.
“Bottom line here is that the Senate is doing its duty constitutionally,” Mr Graham said.
“There have been 19 vacancies filled in election years. Seventeen of the 19 were confirmed to the court when the party of the president and the Senate were the same.”
Democrats did not let Republicans get away with casting aside their position from 2016.
“Think of it, my Republican colleagues: Literally half of the Senate had to break their word [to move forward with the Barrett nomination], 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.
As for her judicial credentials, Ms Barrett brings years of experience to the table as a Notre Dame Law School professor and federal appeals court judge for the Seventh Circuit since 2017.
Ms Barrett was unabashed in her praise for Mr Scalia, who was eventually replaced in 2017 by Supreme Court Justice Neil Gorsuch, a Donald Trump nominee, after the Senate GOP refused for seven months in 2016 to hold hearings for Barack Obama’s nominee, Merrick Garland.
Mr Scalia’s judicial philosophy was “straightforward,” Ms Barrett said on Monday.
“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,” she said. "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.”
Ms Barrett established her viewpoint that the courts have “a vital responsibility to enforce the rule of law, which is critical to a free society.”
But, she added, “courts are not designed to solve every problem or right every wrong in our public life."
“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,” she said.
Senate Democrats have argued Ms Barrett’s previous remarks about several Supreme Court decisions — both in the past and ones yet to come — do not comport with such statements.
Each of the Judiciary Committee’s 10 Democrats warned Americans that Ms Barrett’s confirmation would effectively serve to “dismantle” the 2010 health care law known as Obamacare, fulfilling a promise by Mr Trump to do so by appointing conservative judges to the federal bench.
Ms Barrett has previously made several public comments pitting her against Obamacare’s “individual mandate” provision that penalizes people on their taxes who do not have health insurance.
Senate Minority Leader Chuck Schumer on Sunday called on Ms Barrett to recuse herself from any Supreme Court decision regarding the 2010 health care law, saying her public record on the law is “filled with evidence demonstrating the need for recusal.”
Senate Democrats each highlighted cases of people in their states with pre-existing conditions who have benefited from Obamacare’s policies.
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.
The Barrett hearings are also a political powder keg, with an election for control of the Senate just three weeks and one day away.
Four committee Republicans — Mr Graham, Mr Tillis, Joni Ernst of Iowa, and John Cornyn of Texas — are in tight races against Democratic challengers.
Democrats must pick up four seats to reclaim an outright Senate majority. If Mr Biden wins the presidency, they only need a net pickup of three seats since a Vice President Harris would break any tie vote in the chamber.
Rhode Island Democratic Senator Sheldon Whitehouse singled out Mr Cornyn for his years-long efforts to repeal Obamacare, one of the tenser moments of the first day of testimony.
“Please don't tell us this is not about the Affordable Care Act,” Mr Whitehouse said, repeating Mr Trump’s comments about using the courts to roll back the health care law.
While some Judiciary Committee Democrats in the past have expressed concerns Ms Barrett’s devout Catholicism could prevent her from observing judicial precedent and judging some politically prickly cases fairly — especially on matters of abortion rights — it was only Republicans on Monday who mentioned the judge’s faith.
“The Constitution says that people of faith, like Judge Barrett, are welcome in high office — welcome in any office. Welcome throughout our public life here in this country,” Missouri Senator Josh Hawley said in his opening remarks.
Not a single Democrat has said Ms Barrett’s faith precludes her from sitting on the high court. But that didn’t stop Mr Hawley from criticising his colleagues across the aisle as perpetrators of religious “bigotry.”
“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. The pattern and practice of bigotry from members of this committee must stop. And I would expect that it be renounced,” Mr Hawley said.