A deeply divided Senate Judiciary Committee will kick 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.
Democrats will arrive ready to go on the offensive, portraying Judge Barrett’s nomination as an election-season power grab by Mr. Trump and Republicans. They will characterize her 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.
Republicans will try to deflect those charges and redirect attention toward Judge Barrett’s sterling résumé and compelling personal story. But their goal above all else is speed — pushing through the confirmation before Election Day — and it appears that they have the votes to install her and cement a 6-to-3 conservative majority on the court before the end of October.
Monday’s hearing will begin at 9 a.m., and is 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.
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, will be 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 plan to largely bypass the policy implications of the court’s rightward tilt in favor of 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.
They also want to try 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.
Democrats will take the inverse approach. They will attempt 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. They will point to Judge Barrett’s record to argue she could undermine all three if confirmed.
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.”
“As you know, the standing committee confines its evaluation to the qualities of integrity, professional competence, and judicial temperament,” Randall D. Noel, the chairman of the group’s standing committee on federal courts, wrote in a letter to the Judiciary Committee.
“A substantial majority of the standing committee determined that Judge Barrett is ‘well qualified,’ and a minority is of the opinion that she is ‘qualified’ to serve on the Supreme Court of the United States. The majority rating represents the standing committee’s official rating.”
Judge Amy Coney Barrett, President Trump’s pick for the Supreme Court, has compiled an almost uniformly conservative voting record in cases touching on abortion, gun rights, discrimination and immigration. If she is confirmed, she would move the court slightly but firmly to the right, making compromise less likely and putting at risk the right to abortion established in Roe v. Wade.
Judge Barrett’s judicial opinions, based on a substantial sample of the hundreds of cases that she has considered in her three years on the federal appeals court in Chicago, are marked by care, clarity and a commitment to the interpretive methods used by Justice Antonin Scalia, the giant of conservative jurisprudence for whom she worked as a law clerk from 1998 to 1999.
But while Justice Scalia’s methods occasionally drove him to liberal results, notably in cases on flag burning and the role of juries in criminal cases, Judge Barrett could be a different sort of justice.
“There may be fewer surprises from someone like her than there were from Justice Scalia,” said Brian T. Fitzpatrick, a former law clerk to the justice and a law professor at Vanderbilt University. “She is sympathetic to Justice Scalia’s methods, but I don’t get the sense that she is going to be a philosophical leader on how those methods should be executed.”
One area in which almost no one expects surprises is abortion. Mr. Trump has vowed to appoint justices ready to overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Groups opposing abortion have championed Judge Barrett’s nomination. And her academic and judicial writings have been skeptical of broad interpretations of abortion rights.
Judge Barrett will doubtless tell senators that the Roe decision is a settled precedent, as she did when Mr. Trump nominated her to the appeals court in 2017. And the Supreme Court may not hear a direct challenge to Roe anytime soon, preferring instead to consider cases that could chip away at abortion rights.
But when the day comes, many of Judge Barrett’s supporters are convinced that she will not flinch. Justice Scalia wrote that the Constitution has nothing to say about abortion and that states should be allowed to decide the question for themselves. There is no reason to believe Judge Barrett disagrees.
Overruling a major precedent is no small undertaking, of course. But Judge Barrett has indicated that some precedents are more worthy of respect than others.
In a 2013 law review article, she examined the role of the doctrine of stare decisis, which is Latin for “to stand by things decided” and is shorthand for respect for precedent. The doctrine is, Judge Barrett wrote, “not a hard-and-fast rule in the court’s constitutional cases,” and she added that its power is diminished when the case under review is unpopular.
“The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”
At the end of the day, Judge Barrett will have a chance to reintroduce herself uninterrupted by partisan bickering, and she intends to highlight her commitment to family and the legal philosophy championed by Antonin Scalia, the justice who died in 2016 and for whom she clerked.
According to opening remarks circulated by the White House on Sunday, Judge Barrett plans to spend ample time discussing her love of family — describing each of her seven children individually — her upbringing as a Catholic in New Orleans, and her experiences as a student, clerk and then law professor at Notre Dame. She will specifically pay tribute to two women — Justices Sandra Day O’Connor and Ruth Bader Ginsburg — who broke the Supreme Court’s glass ceiling.
“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place,” she plans to say. “I will be forever grateful for the path she marked and the life she led.”
But her judicial philosophy could not be more opposite from that of the woman whose seat she intends to fill. Like Justice Scalia, Judge Barrett is described as a textualist and originalist. That means she prefers to interpret the plain words of a legal statute over the intent of the lawmakers and to read the Constitution based on the understanding of its framers.
“Courts are not designed to solve every problem or right every wrong in our public life,” Judge Barrett plans to say. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”
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 told Hugh Hewitt, the conservative radio host, that he had been cleared by a doctor to participate. Mr. Tillis is also expected to take part in the proceeding, which is being led by Senator Lindsey Graham of South Carolina, the Judiciary Committee chairman, who has refused to be retested. Democrats called for a postponement, but were rebuffed.
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, which is sparsely populated with senators and spectators.
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.”
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.
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.