Many Firsts At Confirmation Hearings For Judge Amy Coney Barrett

Judge Amy Coney Barrett, President Trump's nominee for the Supreme Court.

By Nina Totenberg

October 12, 2020

There will be plenty of firsts on Monday as the Senate Judiciary Committee opens hearings on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court.

It is the first time that a confirmation hearing is taking place amid a pandemic and with two committee members, both Republicans, recently having tested positive for the coronavirus.

It is also the first time that a confirmation hearing is taking place at the same time early voting has begun in many states, and in a presidential election year.

And while political hardball is not new, Senate Republicans are playing a confirmation game that is wildly more aggressive than at any time in memory.

Four years ago, Senate Republican leader Mitch McConnell refused for nearly a year to hold hearings on President Barack Obama's Supreme Court nominee, arguing that it was an election year and that the voters should have a chance to weigh in.

But now, with a Republican in the White House and the election just over three weeks away, McConnell has scheduled Barrett's confirmation hearing to take place just 16 days after her nomination was announced.

That's warp speed for modern times. The average time between nomination and confirmation hearing for the eight current Supreme Court justices was 56 days.

A 2016 warning from Barrett

Still, expect plenty of rhetorical mortal combat at the hearings this week because the stakes are so high. If Barrett is confirmed to fill liberal Justice Ruth Bader Ginsburg's seat, many of the court's precedents could be at risk.

Barrett herself understood the stakes four years ago, when just five days before the 2016 election, she warned that if Hillary Clinton were elected and had a chance to fill the then-vacant seat previously occupied by conservative Justice Antonin Scalia, the appointment would have "the potential to flip the balance on the court."

That possibility is writ large now because this is President Trump's third nominee to the court. There already is a five-justice conservative majority, and if Barrett is confirmed, conservatives will have a six-justice majority on the nine-justice court, giving conservatives a dominant upper hand not just in the outcome of cases but in crafting far more broadly written conservative decisions.

A threat to the future of abortion rights?

So this week, the focus will be on Barrett and her judicial philosophy. Would she vote to overrule Roe v. Wade, strike down the Affordable Care Act, give greater powers to the president or limit congressional powers? Just what kind of a justice would she be?

Many of the speeches noted in her Senate questionnaire are no longer available on various websites where they may once have lived. And a website involving a charismatic Christian religious group she has long been involved with appears to have been scrubbed, according to The Washington Post.

And on Friday, the Senate Judiciary Committee released an update to Barrett's committee questionnaire that included a lecture, a seminar and an ad she signed criticizing Roe v. Wade.

Walking in Scalia's footsteps

When Trump announced her nomination at the White House, Barrett described herself this way: "I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too."

Scalia was a conservative icon who more than any modern legal theorist popularized the concept of originalism — the idea that the Constitution should be read to mean what the Founding Fathers intended at the time it was written and ratified. He was a fervent opponent of Roe v. Wade and the court's gay rights and same-sex marriage decisions, and he was the author of the court's two major gun-rights rulings. So if Barrett is a justice in Scalia's mold, she will move the court decidedly to the right.

The problem for Democrats is that Barrett is a very accomplished nominee — a star professor at Notre Dame Law School, a mother of seven, including two children she and her husband, Jesse, adopted from Haiti and one child with Down syndrome.

At the same time, however, many of the features of Barrett's life that point strongly to her conservative views also involve her religion. For instance, in 2006 she signed a two-page ad in the South Bend Tribune declaring that "it's time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children."

According to The Guardian newspaper, the ad was sponsored by St. Joseph County Right to Life, a group that Barrett and her husband were members of. The group also opposes in vitro fertilization.

Barrett, for her part, has consistently said that a judge should rule on the law, not her personal beliefs. "I would never impose my own personal convictions upon the law," she said at her 2017 confirmation hearing for the appeals court judgeship she now holds.

Legitimate inquiry vs. religious test

But probing that assertion is politically tricky. Democrats who tried in 2017 found themselves branded as anti-Catholic.

Sen. Dianne Feinstein, D-Calif., famously asked Barrett this question: "I think whatever a religion is, it has its own dogma. The law is totally different, and when you read your speeches, the conclusion one draws is that the dogma lives loudly within you."

Republicans reacted with fury. "It appears that professor Barrett has one big strike against her, and that is her religious faith," said then-Sen. Orrin Hatch, R-Utah. "It is despicable."

It is a theme that Senate Republican leader McConnell picked up 10 days ago, declaring on the Hugh Hewitt Show that "discrimination against people of religion is on full display." McConnell went on to say that Senate Democrats "need to be reminded there is no religious test for public service in America whatsoever."

So Democrats in the next few days almost certainly will try to find ways of questioning Barrett that don't directly involve her religious beliefs. Sen. Chris Coons, D-Del., for instance, says he will focus on other questions.

"We have an incumbent president, whose reelection is at risk, publicly saying, 'I'm choosing this judge so she can rule on an election dispute if one arises,' " he said, noting that at the same time, Trump is "casting doubt on the legitimacy of the election."

Coons, who met with Barrett by phone last week, said she refused to say whether she would recuse herself from an election dispute should it reach the court.

Then, too, there's the Affordable Care Act, known as Obamacare, which is scheduled to be argued before the court for a third time a week after the election. Twice before, the court has upheld the health care law by votes of 5-4 and 6-3, but Barrett has been critical of both decisions. And if she is confirmed, she could well be the deciding vote in this latest attempt by the Trump administration to get the court to strike down the law in its entirety.

For her part, Barrett has made clear that while she believes that the Supreme Court's doctrine of following precedent is important, there are times when it is not. As she wrote in the Texas Law Review in 2013: "I tend to agree with those who say that a justice's duty is to the Constitution ... rather than a precedent she thinks clearly in conflict with it."

Contributing research for this article were Marisa Manzi, Christina Peck, Timur Akman-Duffy, Emmett Witkovsky-Eldred, Leemah Nasrati, Alexandra Benton, Gabriel A. Delaney, Charlotte Blatt, Roman Leal, Emily Marcus, Jane Jacoby, Nicole Rubin, Julyana Dawson, Daniela Manzi and Emily Clarke.