The coronavirus won’t surrender the national stage to anyone — not to President Donald Trump, Judge Amy Coney Barrett or the Republicans who currently hold the power to confirm nominees to the Supreme Court.
The disease that’s killed more than 213,000 people in the United States dominated the Senate hearings that opened Monday in Washington. From the start, Republicans on the Judiciary Committee were on the defensive about rushing Barrett’s confirmation before the November 3 election. Yet they appeared to have enough votes to elevate Barrett to the high court.
Here are some takeaways from the first of four days of Barrett’s confirmation hearings.
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Setting the tone
Other than Trump, no one has more riding on the success of the hearings than their Judicial Committee chairman, Senator Lindsey Graham. And it seemed he felt he had some explaining to do about why he was holding the hearings during the pandemic.
The South Carolina Republican is in the re-election race of his life against Democrat Jaime Harrison, who has shattered fundraising records. Graham has linked himself to Trump after years of mocking the president. And he said in the past that he would not consider Supreme Court nominations in presidential election years.
Yet there he was, gavel in hand, refusing to get tested just beforehand or to enforce a mask-wearing rule for those in the cavernous hearing room. Trump and a circle of supporters who attended a recent Rose Garden ceremony for Barrett had been infected. At least two members of Graham’s committee, Senators Thom Tillis and Mike Lee, have also tested positive.
Graham, who did not wear a mask at his seat, said he tested negative on October 2 after “brief contact” with Lee. He displayed documents he said attested to the safety of the hearing room setup.
“You make it as safe as possible, you manage the risk and you go to work” like millions of Americans, Graham said. “I’m not going to be told to be tested by political opponents.”
Changing the subject
Republicans — not Democrats — opened the hearing by making Barrett’s Catholicism an issue.
One by one, committee members used their time to make opening statements to predict that the panel’s Democrats would overstep on the issue.
The Republican strategy was rooted in Barrett’s 2017 confirmation hearing for an appeals court judgeship, when Democratic Senator Dianne Feinstein told Barrett that “the dogma lives loudly within you”. But as this week’s hearing opened, Democrats stuck to their plan to make the confirmation battle about healthcare and Roe v Wade, not Barrett’s religious beliefs.
That did not stop Republicans from decrying what they called religious bias by Democrats.
Iowa Republican Joni Ernst, who is facing an unexpectedly tough re-election fight, suggested that critics would cast Barrett as a “TV or cartoon version of a religious radical”.
Senator Kamala Harris said last week that she and Democratic presidential nominee Joe Biden “are both people of faith, and it’s insulting to suggest that we would knock anyone for their faith”. Biden, who is Catholic, said Monday that Barrett’s faith “should not be considered” and urged a focus on her approach to a pending high court challenge to the Affordable Care Act.
Healthcare and coronavirus
Committee Democrats, with virtually no power to stop Barrett’s confirmation, did some subject-changing of their own.
“Why are we here?” said Senator Chris Coons. “It’s because the Affordable Care Act is on the ballot and on the docket.”
They consistently linked the nomination to the coronavirus pandemic, criticising the safety precautions taken by Republicans and noting that the court, with Barrett on it, could rule to remove healthcare protections.
Senator Sheldon Whitehouse called the hearing an “irresponsible botch” because of the lack of contract tracing after the two Republicans on the panel tested positive for the virus. “The irony is that this slapdash hearing targets the Affordable Care Act,” he said.
Senator Patrick Leahy said the Senate “is wearing blinders to the grim realities facing Americans”. New Jersey Senator Cory Booker said that “instead of doing anything to help people who are struggling right now, we are here”.
The race for president
Among the first cases confronting Barrett on the Supreme Court could be a challenge to the presidential election.
Democrats warn that President Donald Trump wants his nominee in place to help resolve any election disputes. Some are saying she must recuse herself from any such cases.
“It’s a break-glass moment,” said Senator Richard Blumenthal, telling Barrett her participation in election cases would do “explosive, enduring harm to the court’s legitimacy and your own credibility”.
He said, “You must recuse yourself”.
Trump has suggested he might not abide by the results of the election or the nation’s tradition of a peaceful transfer of presidential power if he is defeated by Democrat Joe Biden.
The president has repeatedly questioned the validity of mail-in ballots, even though election experts say fraud is so minimal there’s a greater chance of being struck by lightning. Vote by mail is surging as voters avoid polling places during the Covid-19 crisis.
Republicans have sought to tamp down on voting concerns, offering assurances that the ballots are legitimate and that the results will be honoured, whichever party wins the presidency.
There’s a high chance the results will not be known on election day as states take extra time to tally all the ballots.
Democratic Senator Richard Durbin said Trump has “made it clear” he wants another of his appointees on the court as he anticipates court challenges to the vote.