Amy Coney Barrett Confirmation Hearings: Highlights from Day 4

October 15, 2020 

Republicans, flouting committee rules, pushed ahead without Democrats present to schedule a vote.

ImageSenator Lindsey Graham called the vote when only one Democrat was present at the beginning of the hearing on Thursday.
Senator Lindsey Graham called the vote when only one Democrat was present at the beginning of the hearing on Thursday.Credit...Anna Moneymaker for The New York Times

The final day of Supreme Court confirmation hearings for Judge Amy Coney Barrett began with a partisan brawl as Senate Republicans, plowing past Democratic objections, forced through a motion to schedule a committee vote on her nomination next week.

That meant ignoring committee rules that require at least two members of the minority party to be present to conduct business. When the hearing began and Senator Lindsey Graham, Republican of South Carolina and the chairman, called the vote, only one Democrat, Senator Richard J. Durbin of Illinois, was present.

"I want to take official note of the fact that I am the only member of the minority that is here, and so we cannot conduct business until that second member of the minority arrives," Mr. Durbin said.

Mr. Graham rejected his claim and proceeded anyway, saying Democrats would do the same if they were in his position.

"It's clear to me from reading in the paper that we are going to be denied the ability to operate as normal," Mr. Graham said, referring to Democrats' public pledge to disrupt "business as usual" around a nomination they view as rushed and deeply unfair.

Democrats appeared to be trying to goad him into violating the rule, with several waiting just outside the committee room as Mr. Durbin sat alone on their side of the dais. As the vote commenced, Senator Richard Blumenthal of Connecticut walked in and was present to cast his "no" vote, while others voted by proxy to block the move.

Still, with Republicans in the majority, the panel approved Mr. Graham's motion, setting its vote on the nomination for Oct. 22 at 1 p.m. If the committee approves the nomination at that point, the full Senate would vote a few days later, as soon as Oct. 26 -- one week and a day before Election Day.

Senator Mitch McConnell, the majority leader, told reporters in Kentucky that Republicans "have the votes" to confirm her, and the Senate would begin considering the nomination on Oct. 23.

Outraged Democrats then moved to shut down the hearing, with Mr. Blumenthal asking to suspend it "indefinitely."

"The time has come to be honest about what is going on here," said Senator Amy Klobuchar, Democrat of Minnesota. "You are just trying to ram through this justice -- against your own words, in light of everything this president has said, where he won't even commit to a peaceful transition to power. That is the world we are in right now."

The panel defeated Mr. Blumenthal's motion along party lines, with Republicans unanimously voting in opposition and Democrats in support.

With confirmation all but assured, senators grappled over the legitimacy and precedent of an election-season vote.

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Judge Amy Coney Barrett leaving a hearing on Wednesday.Credit...Hilary Swift for The New York Times

While the question-and-answer segment of the hearing this week was marked by general civility and respect for the nominee, senators amped up their attacks on each other on Thursday, battling over the extraordinarily swift drive to confirm Judge Barrett before November's election.

Democrats led the way, accusing Republicans of a hypocritical power grab by rushing to fill a seat so close to an election, after refusing to do so in 2016, when Democrats put forward a nominee to the Supreme Court, Merrick B. Garland, nine months before the balloting. The reasons, they argued, were abundantly clear: Republicans want a 6-to-3 conservative majority to strike down the Affordable Care Act, limit abortion rights and tip the presidential election to Mr. Trump if a dispute ends up before the court.

Urging them to reverse course, they warned that Republicans were setting a dangerous new precedent in an ever-escalating judicial war between the two parties that could irrevocably erode the legitimacy of the Senate and the courts themselves.

"This process is a caricature of illegitimacy," said Senator Patrick J. Leahy, Democrat of Vermont and a former chairman of the committee. "The fact that we had a nominee before Justice Ginsburg was even buried in order to jam this nomination through before the election. That is a mark on the United States Senate, it will be a mark of a process of callous political power grab."

Given that Democrats have few, if any, means to push the confirmation schedule back, the move to delay it was a largely symbolic act likely to be one of their last opportunities to protest the process.

Republicans countered that they had every right to proceed. Unlike in 2016, when the president was not standing for re-election and the Senate was controlled by a different party, Mr. Trump is on the ballot and his party controls the Senate. Besides, they said, Republicans would do the same.

"I recognize our Democratic friends wish there was a Democratic majority in the Senate, but the voters decided otherwise," said Senator Ted Cruz, Republican of Texas. "So this committee moving forward is consistent with over 200 years of history."

Graham concedes Democrats have 'a good chance of winning the White House' as committee rushes toward confirmation.

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President Trump has trailed former Vice President Joseph R. Biden Jr. in recent polls.Credit...Stefani Reynolds for The New York Times

As they pushed their aggressive timetable for confirming Judge Barrett before the Nov. 3 election, Mr. Graham conceded on Thursday that Mr. Trump was in danger of losing, increasing the stakes.

"You all have a good chance of winning the White House," Mr. Graham told the Democrats on the committee.

"Thank you for acknowledging that," Ms. Klobuchar interjected.

"I think it's true," Mr. Graham replied.

He made the remark as he worked to justify the rush to confirm Judge Barrett, arguing that voters elected a Republican president and a Republican-controlled Senate -- and noting that the shoe could soon be on the other foot.

Mr. Trump has trailed former Vice President Joseph R. Biden Jr., the Democratic nominee, by an average of more than 9 percentage points in recent polls. But the president has refused to even entertain the possibility of defeat, going so far as to refuse to commit to a peaceful transition of power.

Other top Republicans, including Vice President Mike Pence, have similarly refused to publicly concede they could lose.

Yet Republicans have privately grappled with the possibility that the president could be defeated or they could lose control of the Senate -- or both -- and that could weaken their leverage for confirming Judge Barrett during a lame duck session.

Mr. Graham, who is himself facing a steep re-election challenge, said voters would likely weigh what kind of judges the two parties would appoint when they went to the polls.

"I think the public will go into the voting booth and they'll say, 'OK, I've seen the kind of judges Democrats will nominate. I've seen the kind of judges Republicans will nominate. And that will be important to people," he said.

Witnesses from a nonpartisan committee in the American Bar Association declared Barrett "well qualified."

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Judge Amy Coney Barrett appearing on a monitor during the third day of her Supreme Court confirmation hearing on Wednesday.Credit...Anna Moneymaker for The New York Times

After two days of grilling by the judiciary panel, Judge Barrett did not appear on Thursday, as the panel debates approving her nomination and two panels of witnesses testified for and against it.

First up were representatives of the American Bar Association's nonpartisan standing committee on the federal judiciary who informed the committee they had determined that she was "well qualified" to join the Supreme Court.

"The standing committee concluded that Judge Barrett's integrity, judicial temperament, professional competence met the very high standards for appointment to our Supreme Court," said Randall D. Noel, the chairman of the standing committee. "Our rating of well qualified reflects the consensus of her peers that know her best."

Pamela J. Roberts, who led the evaluation of Judge Barrett, said after exhaustive study of the nominee's record, writings, and consultation with her peers, it was clear Judge Barrett "earned and enjoys an excellent reputation for integrity and outstanding character." She said the group did not take into account political views or legal philosophy.

The association has shown skepticism about a number of President Trump's past judicial nominees, rating 10 of them as "not qualified" -- more than any previous president.

Democrats called witnesses to emphasize how Barrett's potential future rulings could impact average Americans.

A handful of witnesses scheduled to speak have experience working with Judge Barrett or hold influential positions on boards that evaluate nominees for federal judicial posts. Others have minimal legal experience, but were selected to share personal stories that committee members believe relate to cases currently being litigated that Judge Barrett, if confirmed, could eventually rule on.

To emphasize how Judge Barrett's potential future rulings could impact average Americans, Democrats called Crystal Good, a West Virginia resident who spoke about her experience having an abortion after being granted a judicial bypass, which allows minors to have the procedure without seeking consent from parents or guardians.

Ms. Good, who testified remotely, said a teenage pregnancy would have derailed her life.

Unintentionally pregnant at age 16, Ms. Good said she "immediately" knew she wanted an abortion but believed she couldn't tell her mother. So she sought a judge's approval.

As Ms. Good entered the judge's dark chamber, she said she felt intimidated but told the judge she was a "good student."

"I said, 'Your Honor, I have a future. I want an abortion.' Thankfully, he granted permission. It felt like a miracle, that an adult believed me. An authority figure deemed me to be in charge of my own body and my own future," she testified. "I still think about what might have happened if I didn't have that list of accomplishments, or if the judge didn't think I was competent enough to decide when to start my family, or if he believed the harmful stereotype I was raised to believe -- that Black girls were 'fast' and promiscuous."

Ms. Good ended her testimony by imploring Senate Republicans to consider what would happen to teenage girls if Roe vs. Wade is overturned.

"Please, listen to people who have abortions. Hear us when we ask you, do not confirm this nominee. Our futures, families, and lives depend on it," Ms. Good said.

Democrats also called Stacy Staggs, a mother of 7-year-old twin girls, Emma and Sara, who have pre-existing medical conditions, trying to raise questions about access to health care in light of pending legal challenges to the Affordable Care Act, which bans lifetime caps on health insurance.

Ms. Staggs said her daughters were delivered with an emergency C-section at 28 weeks and rushed to the neonatal intensive care unit where "their survival was far from assured." The girls needed repeated surgeries, and the costs of their medical care surged to more than $4 million. Without the protections of the Affordable Care Act, "my daughters would have already hit their lifetime cap and would now be uninsurable," Ms. Staggs testified.

"Our country is in a public health crisis right now, one that gets worse by the day," she said.

Barrett's former student, who is the first blind woman to clerk at the Supreme Court, delivers emotional testimony.

Laura E. Wolk, the first blind woman to serve as a law clerk on the Supreme Court, testified that Judge Barrett "allowed me to excel" by teaching and mentoring her at Notre Dame Law School.

Ms. Wolk recalled struggling with technology and access when she arrived at Notre Dame in 2013.

"I needed help, and I needed it fast. To my great fortune, I had been randomly assigned to Judge Barrett's civil procedure class as part of my first semester schedule," Ms. Wolk testified. "Though I had only known her for a few weeks, her rare combination of graciousness and warmth gave me hope that she could assist me in procuring the technology from Notre Dame as a stopgap measure until I could fix my own."

Ms. Wolk confided in Judge Barrett that she worried "about failing classes, having to choose between completing my assignments and figuring out how to get to the grocery store independently, and feeling as though the energy spent troubleshooting these issues was preventing me from forging friendships."

Judge Barrett leaned forward and told Ms. Wolk: "Laura, this is no longer your problem. It's my problem."

From that point forward, Judge Barrett mentored the young woman and encouraged her to rise to her current historic status.

"To this day, I do not know how Judge Barrett advocated on my behalf, which is itself a testament to her humility," Ms. Wolk testified. "This allowed me to excel in my first semester and to place me in a position that would eventually enable me to pursue the seemingly impossible dream of clerking on the Supreme Court."

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