US supreme court nominee Amy Coney Barrett listens during her US Senate nomination hearing on Capitol Hill in Washington, the US, October 12 2020. Picture: REUTERS/LEAH MILLIS
US supreme court nominee Amy Coney Barrett listens during her US Senate nomination hearing on Capitol Hill in Washington, the US, October 12 2020. Picture: REUTERS/LEAH MILLIS

Washington — Democrats attacked the supreme court nomination of Amy Coney Barrett as a move to kill the Affordable Care Act in the middle of a pandemic and sharply shift the court to the right, at a Senate hearing that is all but certain to lead to her confirmation just days before the US election.

Beginning four days of statements and questioning, members of the Senate judiciary committee clashed over the propriety of President Donald Trump’s nomination of Barrett just 38 days before the November 3 election, as well as the impact she would have on a court that would have a 6-3 conservative majority.

“President Trump and Senate Republicans see the potential to wildly swing the balance of the court,” Democratic senator Patrick Leahy said. “They see the ability to take the courts from being independent to making them instead an arm of the far right and the Republican Party.”

Republicans called Barrett a worthy successor to justice Ruth Bader Ginsburg, the liberal icon whose September 18 death set off a historic pre-election battle over the future of the nation’s highest court. Republicans see a chance to cement a conservative majority for decades, even if the process carries political risks for the November 3 election.

“There’s nothing unconstitutional about this process,” said Republican senator Lindsey Graham, the chair of the committee. “This is a vacancy that has occurred through the tragic loss of a great woman and we’re going to fill that vacancy with another great woman.”

Graham heralded Barrett, an appellate court judge, as a “gifted” academic and protégé of the late conservative justice Antonin Scalia. Barrett, a mother of seven and devout Catholic, sat in the hearing room surrounded by family members on Monday wearing a mask, as did legislators, staff and other attendees.

Coronavirus protocols

The hearings come under extraordinary circumstances, with the nation grappling with the coronavirus pandemic than has claimed the lives of nearly 215,000 Americans. Two Republican senators on the panel tested positive for the virus two weeks ago, sparking unusual safety precautions for the week of proceedings. Mike Lee spoke without wearing a mask and posted a letter from his doctor saying he had met criteria to end his isolation.

No president has ever made a supreme court nomination so close to an election, no matter which party controlled the Senate. The previous record was president Millard Fillmore’s failed 1852 nomination of Edward Bradford, which occurred 78 days before the election.

Democrats on the panel worked to keep the focus on the future of the Affordable Care Act, also known as Obamacare, a leading issue in the presidential campaign. Each highlighted the personal stories of constituents who have drawn coverage provided for by the act, or who have been affected by the spreading coronavirus.

Some also spoke directly to voters who might be watching at home.

“This isn’t Donald Trump’s country, it’s yours,” senator Amy Klobuchar said, looking straight into a TV camera. “This shouldn’t be Donald Trump’s judge. It should be yours.”

‘Judicial oath’

Senator Ted Cruz, a Republican, said Democrats were seeking a commitment from Barrett that she would uphold Obamacare, something she cannot offer as a judge.

“Making that promise would be violating the judicial oath,” he said.

The Trump administration’s latest effort to overturn the law is before the supreme court on November 10, one week after the presidential election. “This well could mean that if judge Barrett is confirmed, Americans could lose the benefits that the [act] provides,” said senator Dianne Feinstein, the committee’s top Democrat.

Feinstein pointed to critical comments Barrett made about Chief Justice John Roberts’s pivotal 2012 opinion upholding the core of Obamacare, which now provides health insurance for 20-million Americans and other benefits for millions more.

Overthrowing precedents

Democratic senator Chris Coons said Barrett’s confirmation could endanger supreme court precedents that guarantee the right to use contraceptives, get an abortion and marry someone of the same sex.

The court “may overturn some of the very principles for which justice Ginsburg fought her entire adult life, principles that protect settled, fundamental rights for all Americans”, Coons said.

Barrett is  expected  to portray herself as a restrained jurist committed to ensuring her personal views do not interfere with her rulings. Barrett also will face questions about whether she might overturn supreme court precedents in other areas, including the landmark 1973 Roe vs Wade decision that established a woman’s right to have an abortion. Before she became a judge, she signed an ad calling Roe “repugnant” and wrote that abortion is “always immoral”. As a judge, she voted to consider restricting reproductive rights.

“In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court and done my utmost to reach the result required by the law, whatever my own preferences might be,” she wrote in remarks prepared for Monday that were released on Sunday by the White House.

Democrats have not been able to shake support for Barrett — or more generally, for the hasty replacement of Ginsburg — among GOP senators. Only two of the Senate’s 53 Republicans, Susan Collins, who is up for re-election, and Lisa Murkowski, objected to considering a new justice so close to the election.

Judiciary panel Democrats say they will use various delaying tactics, but unless a few Republicans turn against her, they cannot stop the schedule set by majority leader Mitch McConnell and Graham, or keep Barrett off the court.

Courts transformed

Barrett would cap the conservative transformation of the US court system during the Trump years, with the GOP-led Senate already having confirmed justices Neil Gorsuch and Brett Kavanaugh, along with 53 appellate court and 161 district court judges.

Roe vs Wade

She wrote in a 2013 law review article that judges should not necessarily be bound by precedent when considering whether to overturn major decisions that conflict with their view of the constitution.

Democrats sought to avoid the suggestion that their questioning makes Barrett’s faith an issue. A backlash followed Barrett’s 2017 circuit court confirmation hearing when Feinstein suggested that the nominee’s religious “dogma” would guide her work as a judge.

Even though Democrats sidestepped the topic of religion, senior Republicans on the panel worked to put them on the defensive anyway.

“There’s no religious test to serve on the supreme court,” said senator John Cornyn, a Republican. “Why? Because the constitution says so.”

Bloomberg

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