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.
HOW WOULD COURT PACKING WORK?
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.
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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.