Table of Contents
- 1 Mark Meadows Refuses to Wear Mask to Speak With Reporters
- 2 How Supreme Court Confirmations Became Partisan Spectacles
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A deeply divided Senate Judiciary Committee kicked off four days of contentious confirmation hearings on Monday for Judge Amy Coney Barrett, President Trump’s nominee for the Supreme Court, drawing battle lines that could reverberate through the election.
Senator Lindsey Graham, Republican of South Carolina and the committee’s chairman, left little doubt about where the proceedings were heading, gaveling open “the hearing to confirm Judge Amy Coney Barrett to the Supreme Court,” rather than saying it was a hearing to consider her nomination.
“This is probably not about persuading each other unless something really dramatic happens,” Mr. Graham added a short time later. “All the Republicans will vote yes, all the Democrats will vote no.”
Democrats arrived ready to go on the offensive, portraying Judge Barrett’s nomination as an election-season power grab by Mr. Trump and Republicans and rank hypocrisy after the yearlong blockade in 2016 against President Barack Obama’s high court nominee, Merrick B. Garland. They characterized Judge Barrett as a conservative ideologue who would overturn the Affordable Care Act, invalidate abortion rights and side with the president in any legal disputes arising from the Nov. 3 election.
“We are now just 22 days from the election, Mr. Chairman. Voting is underway in 40 states,” said Senator Dianne Feinstein of California, the top Democrat on the panel. “Senate Republicans are pressing forward, full speed ahead, to consolidate the court that will carry their policies forward with, I hope, some review for the will of the American people.”
Republicans tried to deflect those charges and redirect attention toward Judge Barrett’s sterling résumé and compelling personal story. But their goal above all else was speed — pushing through the confirmation before Election Day — and it appeared that they had the votes to install her and cement a 6-to-3 conservative majority on the court before the end of October. Senator Mike Lee, Republican of Utah, who announced he tested positive for coronavirus on Oct. 3, was on hand, masked, to lend his support.
Mr. Graham defended the process, saying there was nothing “unconstitutional” about confirming a new justice so close to the election. As for Judge Barrett, he deemed her a worthy successor to Justice Ruth Bader Ginsburg, whose death at 87 last month created a vacancy on the court.
“In my view, the person appearing for this committee is in the category of excellent, something the country should be proud of,” Mr. Graham said.
Monday’s hearing was expected to take most of the day as each member of the Judiciary Committee gets 10 minutes to deliver an opening statement. Judge Barrett will be the last to speak, and is expected to give a short, mostly biographical statement before taking questions later in the week.
In her opening remarks, Judge Barrett steered clear of controversy and hit the usual notes for candidates seeking a job on the Supreme Court. She thanked her family, reviewed her résumé, paid tribute to predecessors and vowed to decide cases based on the law rather than personal preferences.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Judge Barrett said. “The public should not expect courts to do so, and courts should not try.”
As her husband and six of her seven children sat behind her, she told anecdotes about each of them. In her education and professional life, she said, mentors had encouraged her to dream big.
Judge Barrett said she had been inspired by the first two women to serve on the Supreme Court, Justices Sandra Day O’Connor and Ruth Bader Ginsburg.
“I was nine years old when Sandra Day O’Connor became the first woman to sit in this seat,” the judge said. “She was a model of grace and dignity throughout her distinguished tenure on the court.”
“When I was 21 years old and just beginning my career,” Judge Barrett added, “Ruth Bader Ginsburg sat in this seat. She told the committee, ‘What has become of me could only happen in America.’ I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place.”
But Judge Barrett paid special tribute to her former boss, Justice Antonin Scalia, whom she served as a law clerk.
“I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions,” Judge Barrett said. “More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: 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 drew a parallel between the work-life balance Justice Scalia advised her to maintain and the role courts play in public life.
“Justice Scalia taught me more than just law,” Judge Barrett said. “He was devoted to his family, resolute in his beliefs, and fearless of criticism. And as I embarked on my own legal career, I resolved to maintain that same perspective.”
“A similar principle applies to the role of courts,” she said. “Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life.”
She thanked President Trump, though not by name, and the many people she said had been praying for her. “I believe in the power of prayer,” she said.
Though fights over Supreme Court nominees have become increasingly bitter in recent years, no modern confirmation battle has played out so close to a major presidential election. That contest, and the race for control of the Senate, is omnipresent in the hearings, shaping the strategies of both parties.
Republicans — who are trailing in the polls — hope to use the confirmation fight to stoke enthusiasm among their base, but also coax back independent voters, especially women, who are abandoning the party in droves. To that end, they largely bypassed the policy implications of the court’s rightward tilt on Monday in favor of talking about Judge Barrett’s personal story, stressing her legal expertise as an appeals court judge and Notre Dame law professor, and her experience as a working mother of seven.
Senator John Cornyn, Republican of Texas, said his constituents “want to know how you do it. How do you and your husband manage two full-time professional careers and at the same time manage your large families?”
“I’ll bet there are many young women, like my own two daughters, who marvel at the balance you have achieved,” Mr. Cornyn added.
Republicans also tried to goad Democrats into questioning Judge Barrett’s impartiality based on her Catholic faith, as they did during a 2017 hearing on her nomination for an appeals court seat. Republicans believe if Democrats take the bait, they could stir up a political backlash like the one that helped motivate their base during the 2018 confirmation battle over Justice Brett M. Kavanaugh. But none did on Monday.
Democrats took the inverse approach. They attempted to hammer Republicans on what Judge Barrett’s confirmation could mean for a series of popular policies and potent campaign-trail issues, like the health care law, abortion rights and same-sex marriage. And they pointed to Judge Barrett’s record to argue she could undermine all three if confirmed.
As Ms. Feinstein began speaking, aides unveiled a series of massive posters showing selfies and family photos of children and families who Democrats said would be impacted by the repeal of the Affordable Care Act.
“We will examine the consequences if — and that’s a big if — Republicans succeed in rushing through this nomination before the next president takes office,” Ms. Feinstein said, referring to the case the Supreme Court is set to hear the week after the election that challenges the constitutionality of the Affordable Care Act.
Before the hearing got underway, Judge Barrett got a stamp of approval from the American Bar Association, which rates the qualifications of nominees for the federal bench. But even the professional group appears to have been somewhat split over her nomination. A majority of the group’s standing committee deemed her “well qualified,” while others determined she was simply “qualified.”
Judge Barrett’s confirmation hearing looks unlike any other in modern history, thanks to the coronavirus pandemic. Republicans have insisted on going ahead notwithstanding a virus outbreak in Washington that appears to be linked to the crowded White House ceremony two weeks ago where Mr. Trump introduced Judge Barrett as his nominee. The president and most other attendees at the gathering were maskless. Mr. Trump has since tested positive for the virus, as have several other guests.
At least two Republican senators on the Judiciary Committee, Mike Lee of Utah and Thom Tillis of North Carolina, also tested positive after attending the event. Mr. Lee was on hand in the hearing room on Monday morning, having met the “criteria to end Covid-19 isolation for those with mild to moderate disease” according to a letter he received from the attending physician of Congress, Dr. Brian P. Monahan.
The committee room, Hart 216, had been transformed into a sparse room, with just a handful of reporters, guests and staff in addition to most senators and Judge Barrett.
The proceedings are playing out partially by video to allow senators who may be sick or worried about infection to participate remotely. No members of the public — including protesters whose confrontational style set the tone for other confirmation fights — are allowed in the hearing room.
Protesters were blocked the entrance to Senate buildings, carrying posters and signs aimed at swaying senators for or against the confirmation. By the time the committee broke for lunch, the Capitol Police had arrested at least 21 people gathered outside for “unlawful demonstration activities.”
Most senators, except for Mr. Graham and Senator Dianne Feinstein of California, the top Democrat, had kept their masks on once the hearing began. A few senators, including Senators Kamala Harris of California, the Democratic nominee for vice president, Senator Patrick Leahy, Democrat of Vermont, and Mr. Tillis were remote for the hearing. Senator Ted Cruz, Republican of Texas, also joined the hearing remotely as he finished out a period of self-quarantining after coming into contact with Mr. Lee. Mr. Cruz is expected to come to the hearing on Tuesday in person, a spokeswoman said.
Senate Republicans on Monday issued a lengthy document defending their decision to proceed, quoting a letter from J. Brett Blanton, the architect of the Capitol, to Mr. Graham in which he said the seating arrangements for the hearing had been designed “in accordance with established guidelines and in consultation with the Office of Attending Physician to comply with Covid-19 safety protocols.”
Mr. Blanton said his office was also following ventilation guidelines from the Centers for Disease Control and Prevention and the American Society of Heating, Refrigerating and Air-Conditioning Engineers, and that ventilation system in the room being used had “been evaluated to ensure they meet or exceed current standards.”
Mr. Graham addressed the safety of holding a hearing during the pandemic first thing, saying that he doubted “there is any room in the country that’s been given more attention and detail to make sure it’s C.D.C. compliant.”
He sought to dismiss criticisms from Democrats who said the hearings were unsafe and unnecessary to convene so quickly.
“There are millions of Americans, cops, waitresses, nurses, you name it, going to work today to do their job and we’re going to work in the Senate to do our job,” he said.
Should any more Republican senators fall ill, it could complicate Judge Barrett’s chances of confirmation. With two members of the party, Senators Susan Collins of Maine and Lisa Murkowski of Alaska, already opposed to proceeding before Election Day, Republicans, who control the Senate by a 53-to-47 majority, can afford to lose only one more vote.
At Judge Barrett’s desk, she had been given a box of Clorox wipes and a sizable bottle of Purell, in addition to the customary bottles of water and note pad, and several other senators had their own Purell bottles and boxes of wipes. Her family was seated behind her, with Mark Meadows and Pat Cipollone, masked and distanced, seated on her other side.
Senate Democrats have settled on their line of attack against Judge Amy Coney Barrett: Her confirmation to the Supreme Court could mean the death of the Affordable Care Act and millions of Americans stripped of their health insurance.
The court is set to hear oral arguments on Nov. 10 — one week after the election — on a case backed by the Trump administration that contends that because Congress reduced the health law’s penalty for not carrying health insurance to zero, the entire law is unconstitutional. It is a narrow argument with broad ramifications for tens of millions of Americans who are insured under President Barack Obama’s signature domestic achievement or are protected by its coverage mandates.
In their opening remarks on Monday, the first day at the Senate Judiciary Committee’s confirmation hearing, one Democrat after another invoked the health care law — and, more broadly, the Trump administration’s response to the coronavirus pandemic.
Senator Dianne Feinstein of California, the committee’s ranking Democrat, told of a woman whose eyesight was failing when Mr. Obama signed the law in 2010: “Within weeks she was able to have cataract surgery. This saved her life. She described her reaction when she was able to get coverage through the California health exchange following passage of the A.C.A. And let me quote, ‘It was like heaven. I cried.’”
Senator Sheldon Whitehouse, Democrat of Rhode Island, said his constituents are “asking me to say no to this nominee mostly because they see her as a judicial torpedo aimed at their essential protections.”
Senator Amy Klobuchar was blunt, describing how both her husband and her 92-year-old father contracted Covid-19. “The president could have saved so many lives,” she said, adding, “One judge can decide if millions of Americans lose the right to keep their children on their insurance until they are 26 years old. One judge can decide that a senior’s prescription drugs, which are already too high, could soar even higher.”
Republicans said Democrats’ remarks were beside the point and had nothing to do with confirming Judge Barrett or her judicial philosophy. “I do not know what any of that has to do with why we are here today,” said Senator Ben Sasse, Republican of Nebraska. “A huge part of what we are doing here in this hearing would be really confusing to eighth graders.”
Republicans, who spent much of the hearing’s opening day on the defensive, tried to turn the tables by accusing Democrats of targeting Judge Barrett over her Catholic faith, even though no Democrat mentioned or even alluded to it.
As Democrats focused on Judge Barrett’s legal rulings and writings on health care and other issues, Republicans doggedly stuck with a game plan that framed Democrats as anti-Catholic and anti-religion, hoping to motivate their political base.
“This committee is not in the business of deciding which religious beliefs are good, which are bad, and which religious beliefs are weird,” said Senator Ben Sasse, Republican of Nebraska, who called himself “someone who is self-consciously a Christian.” Some beliefs he holds may be considered “crazy,” he said, such as the Virgin birth and resurrection of Jesus.
Mr. Sasse argued that Democrats were trying to put in place an unconstitutional religious test for the court. Since no Democrat has raised Judge Barrett’s religious beliefs since her nomination for the Supreme Court, he and other Senate Republicans repeatedly reached back to the 2017 hearing on her nomination for an appeals court seat, when some Democrats questioned whether she could set aside personal beliefs rooted in her religion to rule impartially.
“This committee is not in the business of deciding whether ‘the dogma lives too loudly’ within someone,” said Mr. Sasse, referencing a comment by Ms. Feinstein during that earlier proceeding.
Senator Joni Ernst, an Iowa Republican in a tough re-election fight, argued that attacks on Judge Barrett’s faith were also a sexist attempt to diminish her record of accomplishment.
“What your political opponents want to paint you as is a TV or cartoon version of a religious radical, a so-called handmaid that feeds into all of the ridiculous stereotypes they have set out to lambaste people of faith in America,” Ms. Ernst said. “And that is wrong.”
Judge Barrett has located Catholicism as a central aspect of her life. She teaches at a Catholic university, Notre Dame, and is part of an insular religious community, the People of Praise, that has fewer than 2000 members and is inspired by the traditions of charismatic Christianity, including speaking in tongues.
Until recently, the group called female leaders “handmaids,” but recently dropped the term after the popular TV adaptation of the dystopian novel “The Handmaid’s Tale” gave the term a sinister cast.
Senator Josh Hawley, Republican of Missouri, said Ms. Feinstein’s 2017 comment revived a history of un-American religious discrimination, adopting “the very terminology of anti-Catholic bigotry.”
He also faulted Senator Chris Coons, Democrat of Delaware, for saying that he feared Judge Barrett might support overturning the Supreme Court’s decision in Griswold v. Connecticut, a 1965 ruling striking down a Connecticut law against using contraception.
“I can only assume,” Mr. Hawley said, that the statement “is another swipe at her Catholic beliefs.”
“This is the sort of attack that must stop,” he added.
Democrats inside the hearing room made no direct reply to the criticism, but on the campaign trail, their nominee for president, former Vice President Joseph R. Biden Jr., said that Judge Barrett’s religion should not be a factor in her confirmation.
“No, her faith should not be considered,” Mr. Biden, himself a churchgoing Catholic, told reporters. “No one’s faith should be questioned.”
Pivoting away at times from their focus on health care, Democrats warned that President Trump had another objective in mind in rushing Judge Amy Coney Barrett onto the court: the potential that a legal challenge to the results of the Nov. 3 election could reach the Supreme Court and she might be called upon to rule on it.
It was not a stretch. Mr. Trump has said in recent weeks that he wanted a nominee confirmed by Election Day in case the court needed to weigh in on the outcome of the race.
“I think this will end up in the Supreme Court,” he said, adding that the justices would need to “look at the ballots” to ensure the result was not tainted by “this scam that the Democrats are pulling.” His comments alluded to a baseless theory that mail-in voting will lead to widespread fraud, and his frequently stated fear that it will cost him the election.
Democrats said the comments, made as Mr. Trump trails in the polls and has refused to commit to a peaceful transfer of power should he lose the election, cast a shadow over the nomination that Judge Barrett must clear away by recusing herself from any case arising from the election.
“Your participation, let me be blunt, in any case involving Donald Trump’s election, would immediately do explosive and enduring harm to the court’s legitimacy and to your own credibility,” said Senator Richard Blumenthal, Democrat of Connecticut. “You must recuse yourself. The American people are angry and for good reason. It is a break the glass moment.”
Mr. Trump punched back on Twitter, reviving a decade-old controversy in which Mr. Blumenthal had misrepresented his Vietnam-era military service.
“So Crazy to watch Senator Blumenthal of Connecticut lecture all on morals & ethics when for 25 years he said he was a Great War Hero in Vietnam, and he was never even there,” Mr. Trump said. “He lied & cheated right up until the day he got caught.”
Democratic arguments that a Justice Barrett would vote to repeal the Affordable Care Act took a personal turn when Senator Mazie Hirono, Democrat of Hawaii, reflected on her own cancer diagnosis and treatment.
Ms. Hirono, who was diagnosed with stage 4 kidney cancer in 2017, described how a routine X-ray prompted doctors to discover the cancer, and the enormous cost of two surgeries — one to remove a kidney, the other to insert a seven-inch titanium plate where a rib had been removed.
“It would bankrupt almost every family in this country if they did not have health insurance,” Ms. Hirono said.
She turned to her Republican colleagues and thanked them for their notes and well wishes, singling out Senator Lindsey Graham of South Carolina, the chairman of the Senate Judiciary Committee, for asking about her health whenever they meet on Capitol Hill.
“You and I have had pointed disagreements over the years, particularly during our time on this committee together, but that means a lot to me,” she said.
That led to a personal plea.
“This can be a moment, Mr. Chairman, for you and your Republican colleagues to show the American people, terrified about losing their health care, the same care and compassion you showed me and continue to show me,” she said. “Instead of rushing to jam another ideologically-driven nominee onto the Supreme Court in the middle of an election when over 9 million Americans have already voted, Mr. Chairman, let’s end this hypocritical, illegitimate hearing, return to the urgent work we have before us to help those suffering during the pandemic.”
Mr. Graham smiled and nodded as Ms. Hirono spoke. “We are all very encouraged to hear you are doing well and will keep praying for you,” he said.
Ms. Hirono responded, “I appreciate that,” then added, “do the right thing.”
At least two Democratic senators, Mazie Hirono of Hawaii and Amy Klobuchar of Minnesota, wore accessories that evoked Justice Ruth Bader Ginsburg. Both donned a lapel pin depicting the late justice and Ms. Hirono also wore a face mask with figures of Ms. Ginsburg in her robes.
Senator Kamala Harris, Democrat of California, had a children’s book about the late justice, “I Dissent: Ruth Bader Ginsburg Makes Her Mark,” carefully set up behind her as she appeared remotely in the hearing.
Democrats criticized Republicans for prioritizing Supreme Court confirmation hearings over a coronavirus stimulus bill, accusing them of “wearing blinders” to the suffering of American families and businesses.
“We shouldn’t spending time on this when we are doing absolutely nothing to pass a much-needed Covid bill,” Senator Patrick Leahy of Vermont, the top Democrat on the Senate Appropriations Committee, declared in his opening remarks. He said his Republican colleagues “have nothing to say” about the thousands of Americans who had died from the virus.
Some Republican senators and aides have privately warned that with just three weeks before Election Day, there is not enough legislative time to hold votes both to confirm Judge Barrett and to agree on and pass a relief package that would infuse the economy with tens of billions of dollars and provide federal funds to American families, businesses, and schools. When he abruptly cut off talks last week, President Trump said Republicans should focus instead on installing his Supreme Court nominee.
But on Monday, Mr. Trump, clearly monitoring the proceedings, said on Twitter that the Senate could do both — if Republicans would block Democrats from even speaking at the confirmation hearings.
The Republicans are giving the Democrats a great deal of time, which is not mandated, to make their self serving statements relative to our great new future Supreme Court Justice. Personally, I would pull back, approve, and go for STIMULUS for the people!!!
— Donald J. Trump (@realDonaldTrump) October 12, 2020
Mr. Trump’s confidence was unfounded. Republicans were not exactly poised to act on coronavirus stimulus, even if a Supreme Court nomination had not summoned lawmakers back from the campaign trail for a rare October hearing.
Senate Republicans who have not been a part of negotiations between Speaker Nancy Pelosi of California and Steven Mnuchin, the Treasury secretary, revolted on Saturday over the compromise plan under discussion, making it clear in a contentious phone call that they had serious concerns with its size and contents.
The opposition was so severe that Mark Meadows, the White House chief of staff, told senators that he would relay their concerns to Mr. Trump, but “you all will have to come to my funeral” after he delivered their message.
Republicans on Monday defended their decision to hold Supreme Court confirmation hearings amid the pandemic, insisting that they were taking every appropriate precaution, but after leaving the room, Mark Meadows, the White House chief of staff, was ambivalent about precautions.
He refused to take questions from reporters while wearing his mask.
Mr. Meadows initially moved a microphone away from reporters to stand farther away from them, then took his mask off to speak. But when one journalist asked Mr. Meadows to put his mask back on, he walked away.
“I’m not going to talk through a mask,” Mr. Meadows said.
It was the latest example of a White House official being unwilling to break with President Trump’s custom of going without a mask in public, in defiance of public health guidance. Mr. Meadows has spent substantial time with Mr. Trump since the president tested positive for the virus, including working alongside him during his stay at Walter Reed National Military Medical Center.
Shortly after Mr. Meadows walked away from reporters, Senator Lindsey Graham of South Carolina, the chairman of the Judiciary Committee, put his mask back on when asked by reporters. He argued that he was justified in refusing to be retested for the virus, saying the demands were coming from his political opponents and insisting that the hearing go forward as planned.
“You can’t demand that all of your colleagues be tested before you go to work, if there’s no reason,” Mr. Graham said.
The leaders of the Capitol Hill press galleries wrote to both Speaker Nancy Pelosi of California and Senator Mitch McConnell of Kentucky, the majority leader, earlier this month asking that members of Congress keep their masks on while doing interviews with reporters and speaking at news conferences.
While lawmakers frequently take their masks off to speak at formal news conferences, when they are standing at a distance, most of them keep their faces covered while speaking to reporters in interviews around the Capitol complex at close range.
After Monday’s opening statements, senators will dive into multiple, extended rounds of questioning with Judge Barrett on Tuesday and Wednesday. Though the format will be different — and there could be some elements of surprise — do not expect to learn much about Judge Barrett’s specific legal views on the most politically sensitive matters that could come before the court. Like earlier nominees, she is expected to refuse to answer questions that might compromise her ability to rule impartially on future cases.
On Thursday, the committee will convene again to hear from a panel of outside witnesses testifying in favor of and opposition to Judge Barrett’s confirmation. Afterward, it will immediately begin deliberating over whether to recommend that she be confirmed. The debate will be fierce and partisan, but under the rules, Democrats will insist the panel wait a week to vote on her nomination.
As of now, the Judiciary Committee plans to reconvene on Oct. 22 to approve the nomination. If all members of the panel are present, Republicans would have a clear majority and easily win the vote. But if any Republican lawmakers were unable to attend, they could quickly find themselves at a standstill.
If approved, the nomination would then go to the full Senate for consideration. Senator Mitch McConnell, Republican of Kentucky and the majority leader, has not said when he will schedule a final vote, but it is expected to occur early the week of Oct. 26, in time for senators to race home for one final week of campaigning before the election.
It wasn’t until the mid-20th century that Supreme Court nominees were subject to public hearings — before then they were considered by senators in mostly closed-door affairs. But changes sweeping the country, including the 19th Amendment, school desegregation and technological advances in television, began to draw the hearings into the spotlight.
In 2018, as the hearing for Justice Brett M. Kavanaugh began, a Times video tracked the evolution of these Supreme Court nomination hearings. Watch how it has unfolded throughout history.