By the time Amy Coney Barrett’s Supreme Court confirmation hearing began on Oct. 12, Senate Democrats had all but given up on finding any procedural way of blocking the 48-year-old federal court of appeals judge from reaching the Supreme Court as early as the end of the month.
Instead, Democrats used their time at the Judiciary Committee hearings to portray Barrett’s judicial views as far outside the mainstream and an indication that her confirmation would swing the court wildly to the right and out of step with the public.
“The Democrats on this committee have asked and will continue to ask you questions to let the American people know that you being put on the Supreme Court will dramatically flip the balance of power to the court further to the right, not the fair and impartial body we want the Supreme Court to be,” Sen. Mazie Hirono, a Hawaii Democrat, told Barrett after the second day of questioning.
The efforts by Democrats did nothing to reduce the enthusiasm among Senate Republicans for Barrett, a mother of seven children, including two adopted children from Haiti. Barrett has not only been praised as a brilliant legal mind, but she also announced that she adheres to the judicial philosophy of the late Justice Antonin Scalia, a conservative icon who embraced an originalist view of the Constitution.
The American Bar Association awarded her its highest rating of well qualified. At the same time, Barrett endeared herself to GOP lawmakers by holding up a blank notepad when asked what she was using to help her recall the hundreds of opinions, scholarly articles, and other parts of her resume that were subject to questioning.
During the second day of questioning, Sen. Ted Cruz noted the empty chairs on the Democratic side of the hearing dais.
“The Democratic senators are no longer even attending,” Cruz said. “It is indicative of what they are tacitly admitting, which is that they don’t have substantive criticism.”
But Democrats hardly gave Barrett a pass.
They may not have been attending in person all day long. Still, each one showed up to take their turn questioning Barrett and warning that her judicial philosophy could endanger Obamacare, legal abortion, worker rights, and other vital matters that could end up before the court.
Much of the questioning centered on Barrett’s allegiance to Scalia, who was one of the most conservative justices on the court and voted to do away with Obamacare and against gay marriage legalization.
Sen. Chris Coons, a Delaware Democrat, said Scalia was often a dissenting voice on decisions favored by the late Justice Ruth Bader Ginsburg, a liberal icon who Barrett would replace if confirmed.
Scalia disagreed with past landmark rulings by the high court, including the 1965 decision that married couples have the right to use contraceptives in the privacy of their home. In 2012, Scalia said the Constitution does not provide a right to privacy.
Scalia was also the lone dissenting opinion in 1996 when the Supreme Court struck down the long-standing Virginia Military Institute policy of denying women admission.
“And he even accused the court of destroying VMI, which remains standing and strong to this day,” Coons said to Barrett. “I’m just getting at how closely you would ally yourself with Justice Scalia’s jurisprudence. Would you agree with Justice Scalia that Justice Ginsburg’s decision in VMI was wrong?”
Coons and other Judiciary Democrats used the hearing to link Barrett’s embrace of Scalia’s philosophy with his past decisions to make the case that she is far more likely to vote like Scalia and not like Chief Justice John Roberts. He has sometimes proven to be a key swing vote in significant cases.
Coons argued that Barrett’s seat on the court would mean more decisions that adhere to originalism.
“I think the American people need to better understand what that originalist philosophy could really mean for their everyday lives because I think it means our entire modern understanding of certain constitutional commitments around liberty, privacy, and equality under the law could, in fact, be rolled back to 19th- or even 18th-century understandings in a way unrecognizable to most Americans,” Coons said.
Barrett repeatedly assured Democrats she won’t act as a Scalia clone, but no Democrats are expected to vote for her confirmation.
“I assure you, I have my own mind,” Barrett told Democrats. “Everything that he said is not necessarily what I would agree with or what I would do if I were Justice Barrett. That was Justice Scalia.”
The Senate Judiciary Committee will vote on Oct. 22 to advance Barrett’s nomination to the floor, likely over the unanimous objection from Democrats in the minority.
Judiciary Chairman Lindsey Graham called out Democrats at the end of the confirmation hearing by noting the Senate has historically approved nominees based on qualification, not politics.
Despite opposite judicial philosophies, Justices Scalia and Ginsburg received 96 and 97 votes when they were confirmed by the Senate, which is nearly universal approval from both parties.
Graham said that the political fight over judges should take place at the polls, not in Congress.
“I want every American to think long and hard about who you want to be on the court,” the South Carolina Republican said. “Knowing the difference between the party preferences is more important today than it ever has been.”
