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Barrett Confirmation Hearing Powers Up Under Shadow of Virus Outbreak

President Donald Trump opted out of this week’s presidential debate, calling the virtual format a “waste of time,” but the Senate’s fervid work to confirm his Supreme Court pick, Judge Amy Coney Barrett, pushed forward Monday in a partially virtual hearing.

WASHINGTON (CN) — President Donald Trump opted out of this week’s presidential debate, calling the virtual format a “waste of time,” but the Senate’s fervid work to confirm his Supreme Court pick, Judge Amy Coney Barrett, pushed forward Monday in a partially virtual hearing.

Barrett told the Senate Judiciary Committee that she will serve as a justice who “interprets our Constitution and laws as they are written.”

“A judge must apply the law as written, not as the judge wishes it were,” she said in her opening statement.

Democrats fiercely objected to the historic hearing kicking off amid an increasing number of Republicans in Washington testing positive for Covid-19, including President Trump, first lady Melania Trump and two members of the Senate Judiciary Committee. 

Republican efforts to blot out the federal health care law — and Barrett’s avowed support of that effort — ranked at the top of Democrats' concerns regarding the lifetime appointment nomination.

Democrats accused Republicans of weaponizing the courts to wipe out the Patient Protection Affordable Care Act — after failing to overturn it in Congress — at the worst possible time, during a pandemic that has killed nearly 214,000 Americans.

The Supreme Court is set to hear oral arguments on the law that marked the signature domestic achievement of President Barack Obama's administration just one week after Election Day.

Republicans are in sight of a 6-3 Supreme Court majority with the death last month of Justice Ruth Bader Ginsburg. But Democrats say Barrett’s rushed nomination to a lifetime appointment on the highest court in the land usurps the will of voters, millions of whom are already heading to the polls in several states with early voting.

Never in U.S. history has the Senate confirmed a Supreme Court nominee so close to a presidential election.

Among other complaints about Barrett’s record, Democrats have railed against her views on the Affordable Care Act, Roe v. Wade and LGBT rights. 

Senate Minority Leader Chuck Schumer called Monday for Barrett to recuse herself from the health care case should she be confirmed to the high court, saying her “record and previous public statements clearly indicate that she would vote to strike down the ACA and overturn Roe.”

Before joining the Seventh Circuit in 2017, Barrett criticized Chief Justice John Roberts for pushing the Affordable Care Act "beyond its plausible meaning to save the statute.”

Senator Diane Feinstein, the committee’s ranking Democrat, opened Monday with a story about one of her constituents in California, Krystyna Munro Garcia, who received life-saving cataract surgery because the health care law does not let insurance providers exclude her preexisting condition.

“We can’t afford to go back to those days when Americans could be denied coverage or charged exorbitant amounts,” Feinstein said. "That’s what’s at stake for many of us, for America, with this nomination."

After Trump elevated Barrett, 48, to the Seventh Circuit, she earned a reputation among Republicans as an originalist who does not legislate from the bench. 

“Courts are not designed to solve every problem or right every wrong in our public life,” Barret said Monday after senators made opening statements.

The nominee committed to serve as a justice “fearless of criticism."

But Democrats worry the longtime law professor at Notre Dame is unqualified and will inappropriately advance Trump’s agenda. A devout Catholic and mother of seven, Barrett failed to mention on a Senate questionnaire that she signed a 2006 open letter that called for an end “to the barbaric legacy of Roe v. Wade.” 

Republicans accused their Democratic colleagues of attacking Barrett’s faith and family, with Senator Joshua Hawley of Missouri labeling them bigots.


Senator Ben Sasse of Nebraska, quoting a statement by Feinstein at Barrett's circuit confirmation hearing, said: “We don’t have religious tests. This committee isn’t in the business of deciding whether the ‘dogma lives too loudly’ within someone.”

Barrett made no mention of Catholicism in her prepared remarks, only that “I believe in the power of prayer."

Senator John Kennedy, a Louisiana Republican, also slammed Democrats for their purported focus on Barrett’s faith during his opening statement. During a recess of the hearing, however, when asked to identify the Democrats who had attacked the nominee for being Catholic, Kennedy declined to answer.

Barrett had clerked for Justice Antonin Scalia before her long academic career. On Monday she credited the conservative icon, and fellow Catholic, for shaping her judicial philosophy.

“He was devoted to his family, resolute in his beliefs, and fearless of criticism," she said. "And as I embarked on my own legal career, I resolved to maintain that same perspective."

With her dual-role as a mother and jurist praised by supporters, Barrett said in prepared remarks that she brings “a few new perspectives” as a justice who would be the “first mother of school-aged children to serve on the court.”

But Feinstein called on the Senate majority early Monday to honor their firm stance back in 2016 — when they stymied President Obama’s pick for the Supreme Court, Merrick Garland — that the country was too close to an election to put a new justice on the bench.

Supporters of President Donald Trump's Supreme Court nominee Amy Coney Barrett, rally at the Supreme Court in Washington, Monday, Oct. 12, 2020. Barrett's confirmation hearing begins Monday before the Republican-led Senate Judiciary Committee. (AP Photo/Jose Luis Magana)

When the GOP blocked the Garland nomination, Judiciary Committee Chairman Lindsey Graham said it was a nonpartisan duty and he would do the same under a Republican president. “Use my words against me,” Graham had said at the time — an oath that Feinstein repeated Monday.

“Republicans should honor this word for their promise and let the American people be heard,” she said. “Simply put, I believe we should not be moving forward on this nomination, not until the election has ended and the next president has taken office.”

Senator Chris Coons of Delaware said Barrett’s confirmation hearing was a distraction from lawmakers’ responsibility to roll out additional Covid-19 relief legislation.

There was no precedent in American history for confirming a Supreme Court nominee the month before a presidential election, the Democrat said. He noted that a majority of states — 6 million Americans — had already voted, and that Barrett's hearing hypocritically flies in the face of Graham’s rule refusing “as a matter of politics, not civics,” to consider Garland.

“So, what changed? Sadly, nothing,” Coons said. “Nothing except the fact that this time President Trump and his allies in the Senate saw a chance in Justice Ginsburg’s untimely passing, to shift the balance of the Supreme Court for decades to come and that will have consequences in the real lives of millions of Americans.”

Trump is believed to have contracted Covid-19 at the White House Rose Garden event where he announced his nomination of Barrett, a gathering now considered a coronavirus super-spreader.

More than two dozen people who attended the event on Sept. 26 tested positive for Covid-19, including a slew of White House officials and three Republican senators, Mike Lee of Utah, Ron Johnson of Wisconsin and Thom Tillis of North Carolina.

Senator Graham said at the outset of Monday’s hearing that the Republican majority was following the Constitution to the letter.

But the chairman also recognized that partisan flare ups would define the days ahead, recalling that the Senate confirmed Ginsburg 96-3 and that Scalia was confirmed by 97 senators.

“This is gonna be a long contentious week,” Graham said.


Lee and Tillis both sit on the Senate Judiciary Committee. As the infection spread, Majority Leader Mitch McConnell delayed the Senate’s return to Washington by two weeks.

Two more GOP senators who were at the Rose Garden ceremony for Barrett, Ted Cruz of Texas and Hawley of Wisconsin, tested negative for Covid-19 last week. 

Trump administration officials have stated Barrett and her husband, Jesse Barrett, who attended the Rose Garden event maskless, both recovered earlier this year after coming down with the virus.

For several Democrats, the presence of these Republicans after exposure to the deadly respiratory virus endangers the health of their fellow members, Senate staffers and the members of the media present.

Schumer said last week that McConnell’s decision to recess made clear it was reckless to proceed with business as usual. 

“If it’s too dangerous to have the Senate in session, it is also too dangerous for committee hearings to continue,” Schumer said. 

A staunch supporter of the president, Chairman Graham gave senators the option to make their own determination on whether to appear for the confirmation hearing in person or remotely. Graham said in a Fox News interview Sunday that he tested negative for the coronavirus last week, adding “anybody that has a concern about showing up can virtually interview Judge Barrett.”

California Senator Kamala Harris spoke remotely from her Senate office Monday, calling the closed-door hearing “reckless” during a pandemic brought on by an airborne virus.

In 2018, Harris took center stage at the nomination hearing for Justice Brett Kavanaugh, firing off prosecutorial-style questions at the controversial Trump nominee.

Now the Democratic vice presidential nominee, she warned Monday that 135 million Americans with preexisting conditions, including the 7 million who contracted Covid-19, will lose health care if the Supreme Court overturns the ACA.

Harris said Republicans are looking to the court to do their “dirty work” after realizing the ACA was too popular to overturn in Congress.

"That’s a big reason why Senate Republicans are rushing this process,” she said. "They are trying to get a justice onto the court in time to ensure they can strip away the protections of the Affordable Care Act."

Senator Lindsey Graham during Judge Amy Coney Barrett’s Senate confirmation hearing on Capitol Hill in Washington, DC on October 12, 2020. (Erin Schaff/The New York Times) NYTACB

Throughout the pandemic, at the objection of Democrats, the GOP-led Senate Judiciary Committee has conducted more than 20 hearings with Trump’s nominees for the federal bench, many who participated by videoconference.

After testing positive for Covid-19 and isolating for just 10 days — rather than the typical two weeks — Lee showed up in person to Monday’s hearing, giving an impassioned opening statement without wearing a mask. Tillis, who like Lee is symptom-free, participated remotely.

Senator Cruz was the first GOP member to praise Barrett over videoconference. He tested negative for the virus after attending the Rose Garden event where Lee and Tillis are believed to have picked up the disease. First among the Democrats to give opening remarks remotely was Senator Patrick Leahy, an octogenarian, followed by Harris.

Though the president has predicted that Barret’s confirmation will be “straightforward,” strict coronavirus safety measures made Monday’s hearing a far cry from the elbow-to-elbow events typical for Supreme Court confirmation hearings.

The grand Senate room where Barrett will face a marathon of question-and answer-periods this week is the same hearing room where Ginsburg and Justices Samuel Alito, Neil Gorsuch and Sonia Sotomayor sat for their nomination hearings. The building has been closed to the public for months due to the pandemic.

Apart from Barrett’s family, who sat sequestered in a corner of the high-ceilinged room wearing masks, no onlookers were present. White House counsel Pat Cipollone and Trump's chief of staff Mark Meadows were on site with face coverings for day one of the hearing, seated behind Barrett.

Senators were accompanied Monday by just one staffer, keeping six feet apart in the room now outfitted with a second dais. In flagrant disregarded of social-distancing measures, however, they chatted closely with colleagues before taking their seats.

Republicans emphasized in the lead-up to the proceeding that the hearing was in accordance with the Office of Attending Physician and Senate Rules, arguing Democrats’ calls for delay are “inconsistent with protocols” and not based on science.

The politically charged hearing is set to last four days, with an expected vote to follow on Oct. 22. Monday was reserved for opening statements, followed by questioning of Barrett on Tuesday and Wednesday.

In a stark departure from the committee’s typical protocol, Graham scheduled the markup of Barrett’s nomination for Thursday morning, before the confirmation hearing concludes. Senators will then hear from four witnesses speaking on Barrett’s record, the final component of the four-day hearing, Graham's spokesperson confirmed Monday evening.

Feinstein called the move “unprecedented” in her time on the Senate Judiciary Committee. In 1993, assigned to the committee along with a fellow congresswoman, the California Democrat broke the all-male bulwark that had always defined the panel.

Barrett also noted that she would be the only sitting justice who did not attend Harvard or Yale. Barrett earned her bachelor’s degree from Rhodes College before graduating from Notre Dame Law School in 1997.

The American Bar Association, based on an evaluation of her “integrity, professional, competence, and judicial temperament,” rated Barrett “Well Qualified” to serve on the Supreme Court.

Critics of her nomination were quick to point out that the nominee has never argued before the Supreme Court, and only litigated for two years before transitioning to a series of professorships, including at her alma mater before joining the Seventh Circuit.

Senate rules set quorum requirements that Republicans must meet to propel Barret out of committee and onto the Senate floor for a final confirmation vote. 

Should more senators test positive for Covid-19 and fail to be physically present on Capitol Hill, Graham may have difficulty advancing Barrett before Americans’ votes are counted.

Republicans are jamming Barrett through the grueling nomination process in hopes of landing her on the high court before the Nov. 3 election, fearing her seat on the nine-member bench would be in jeopardy if they lose control of the Senate.

The conservative judge’s ascension to the Supreme Court by next month also ensures she will be sitting for the Affordable Care Act argument on Nov. 10 as well as any election-related legal challenges that may go before the justices.

A liberal icon, Ginsburg before her death on Sept. 18 reportedly told her granddaughter: "My most fervent wish is that I will not be replaced until a new president is installed."

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