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What to expect at Supreme Court nominee Amy Coney Barrett’s confirmation hearings this week

Senate Democrats will be scrutinizing her record on health care and reproductive rights.

Senators Meet With Supreme Court Nominee Amy Coney Barrett
Judge Amy Coney Barrett (R), President Donald Trump’s nominee to the Supreme Court meets with U.S. Sen. Jerry Moran (R-KS) during a photo-op at the U.S. Capitol on October 1, 2020 in Washington, DC. 
Anna Moneymaker/Getty Images

Despite the recent concerns about coronavirus exposure at the Capitol — and the fast-approaching general election — the Senate confirmation hearing for Supreme Court nominee Amy Coney Barrett is still happening.

The hearing will air Monday, October 12, through Thursday, October 15, beginning at 9 am each day. It will be accessible via a livestream on the Senate Judiciary Committee website, as well as via C-SPAN.

Day one of the hearings will start with opening statements from Barrett as well as from every member of the committee, which is helmed by Chair Lindsey Graham (R-SC) and ranking member Dianne Feinstein (D-CA). Meanwhile, questions for Barrett are slated to take place on Tuesday and Wednesday, and a panel of outside witnesses will testify about her nomination on Thursday.

The hearings mark one of the key steps in Republicans’ efforts to rush through Barrett’s nomination just weeks ahead of the general election, and its set-up will be somewhat different from confirmations in the past. Some members, including Sen. Thom Tillis (R-NC), will be joining virtually given his recent coronavirus diagnosis, and others may opt to do so as well. Democrats have argued that, given the seriousness of the nomination, the hearings should be delayed until they can take place with the entire committee in person, but Graham has been intent on proceeding anyway.

Barrett — if confirmed — could solidify a 6-3 conservative majority on the Supreme Court for decades, and would play a pivotal role in key decisions, including an upcoming one regarding whether the Affordable Care Act should be overturned. Senate Democrats intend to use their time to build a case against her nomination in the hope of swaying some Republicans to their side. Republican members, meanwhile, are likely to emphasize Barrett’s qualifications for the role and attempt to undercut opposition toward her nomination as attacks on her Catholic faith, a misleading characterization that stems from some Democrats’ botched handling of the subject in a previous confirmation hearing.

The hearings are also a moment for lawmakers in both parties to gin up enthusiasm ahead of this November’s election: The focus on the Supreme Court is set to fire up the bases of both parties, and the hearings could provide important fodder for the campaigns of lawmakers on the committee including Graham’s fight for reelection and vice presidential nominee Sen. Kamala Harris’s ticket for the White House.

Senate Republicans, ultimately, are intent on pushing Barrett’s nominee through. Currently, Republicans have a 53-47 majority in the upper chamber, meaning four lawmakers would have to defect from the party line in order for Barrett’s nomination to fail — since Vice President Mike Pence can break a 50-50 tie. It’s an unlikely scenario, but trying to convince a handful of their GOP colleagues to vote against the nomination will be a key aim of Democrats’ arguments in the hearing this week.

“I’m going to fight like hell, but I think ultimately we need to present our case to the American people so they can stand up and speak out to our Republican colleagues,” Sen. Richard Blumenthal (D-CT) told reporters on a media call last week.

Judge Amy Coney Barrett’s nomination, briefly explained

Barrett, currently a judge on the 7th Circuit Court, was nominated by President Donald Trump on September 26 to a vacancy left by the death of liberal Justice Ruth Bader Ginsburg. If confirmed, Barrett, 48, would be the youngest Justice and the first mother of school-aged children — she has seven kids aged eight to 19 — to serve on the Supreme Court. She will also be among six justices on the court to subscribe to the Catholic faith.

Senate Republicans’ decision to move forward with a Supreme Court nominee in 2020 has been a stark turnaround from how they approached this same question in 2016. In February of that year, Republicans said they wouldn’t consider a nominee until after the election, and this year — less than two months out from Election Day — they decided they would do all that they could to advance Barrett.

Since then, Republicans have planned for an expedited confirmation process, with a Judiciary Committee vote on the hearings expected to take place on October 22, and a vote by the full Senate to follow shortly thereafter. As of last count, a majority of Republicans had said they’d support a vote on her nomination before the election, and a similar number are likely to support her confirmation.

In addition to concerns about the process behind this nomination and its legitimacy, Democrats have raised the alarm about Barrett’s record on a wide range of issues including health care, reproductive rights, and gun control.

As Vox’s Ian Millhiser has written, Barrett is a conservative justice and a favorite of the religious right who has the potential to roll back the Affordable Care Act, undo Roe v. Wade, and expand the interpretation of the Second Amendment if she were to ascend to the court. While she’s only been a judge for a few years, she’s critiqued the Court’s decisions to uphold the ACA in the past and contributed to opinions that signal openness to limiting abortion access.

Before becoming a federal judge, Barrett was a law professor at the University of Notre Dame and a clerk for Justice Antonin Scalia. She’s a devout Catholic, and she has written in the past about how faith relates to judicial decisions about the death penalty.

What to expect from Democrats and Republicans at the hearings

Senate Democrats are poised to focus on several issue areas including health care as part of their questioning of Barrett, with an eye toward emphasizing the impact of Supreme Court decisions — like the one involving the ACA case — on the millions of people it could affect.

What’s still uncertain, however, is whether there will be a broader show of protest from Democratic lawmakers at the hearings in the same way there was at the Kavanaugh hearings in 2018. At the time, Senate Republicans released a trove of documents the evening prior to the hearings, and several Democrats argued as the panel was getting underway that it should be adjourned until they had adequate time to review them.

There have been calls from activists to take action at the hearings, including a boycott, though there wasn’t much appetite from lawmakers to go that far. “I don’t think the Democrats can just show up and question a nominee as if it were normal,” Chris Kang, the chief counsel of Demand Justice, previously told Vox.

An area that Democrats are expected to avoid is a focus on Barrett’s faith, which was a centerpiece of her 7th Circuit hearings, because she’s previously written about it in the context of possible judicial decisions, CNN reports. As Millhiser notes, however, some of the questions during those hearings — including a memorable one from Feinstein — came off as attacks on Barrett’s Catholicism rather than its relationship to her work.

“It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith,” writes Millhiser. “But, in a disastrous exchange with the future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself.” Harvard Law Professor Mark Tushnet has noted, though, that it’s possible for lawmakers to ask Barrett about her previous writings about faith and capital punishment without “lapsing into anti-Catholicism.”

Republicans, for their part, have spent much of their time talking up Barrett’s qualifications for this job including her time clerking for Scalia and her tenure as a law professor. Much as they did with Kavanaugh, they’ve also focused on her personal attributes, including her relationships with her family.

“I anticipate she will get a unanimous well-qualified rating from the American Bar Association. The president could not have picked a more outstanding nominee,” McConnell said in a recent interview.

Expect lawmakers in both parties to use the hearings as a platform to rally voters — and speak to that pivotal group of swing senators — prior to a final vote on Barrett’s nomination.