When Donald Trump’s latest supreme court nominee, Amy Coney Barrett, arrives before the Senate judiciary committee for her confirmation hearings on Monday, Democrats will be out to raise an alarm that Barrett could help strike down the Affordable Care Act in the very first case she hears.
But in the weeks leading up to the hearings, Republicans have been out for something else entirely: a holy war.
The future of the supreme court hinges on the Barrett hearings. But the hearings will be backgrounded by a political fight over religion that is potentially as important as the question of whether Barrett replaces Ruth Bader Ginsburg, the late liberal justice, on the court.
If Republicans can make it look like Democrats are attacking Barrett, a conservative Catholic, for her religious views, they believe, that could stir enough political anger to rescue a couple of tight Senate races in the elections on 3 November – and potentially save the teetering Republican Senate majority.
Democrats hope to defeat the Barrett nomination on the merits.
But they also hope to take control of the Senate next month, claim the White House, and then pass a bulwark of laws on key issues – healthcare, reproductive rights, marriage equality, voting rights, the climate emergency – to withstand what could be decades of tendentious rulings by a supreme court with as many as three Trump-appointed justices on it.
The current Senate judiciary committee chair, Lindsey Graham, who happens to be among the most endangered Republican incumbents, explained the Republican strategy last month on Fox News, saying Democratic protests over credible sexual assault allegations against Trump’s supreme court nominee Brett Kavanaugh helped Republicans in the 2018 midterm elections.
“Kavanaugh really did help Republicans pick up Senate seats because they went too far,” Graham said.
In a transparent attempt to whip up a comparable spectacle around the Barrett nomination, Senate Republicans have produced an ominous video featuring tense footage from the Kavanaugh hearings and accusing Democrats of a “radical power plot” to attack Barrett over her religious beliefs.
But prominent Democrats have urged a minimum of pageantry during the Barrett hearings and a focus on Barrett’s views on the healthcare law, abortion, same-sex marriage and other issues.
“It is going to be really important to not give Lindsey Graham and the rest of the Republicans a moment of righteous vindication over a circus-like atmosphere,” the former Democratic senator Claire McCaskill said on a popular politics podcast this week.
“So I just think this is one of those times when some of our most passionate supporters that are so angry on behalf of Ruth Bader Ginsburg, that they’ve got to realize that there is a better way than flooding the halls with women in handmaid costumes.”
To protest against the Barrett nomination earlier this month, activists stood outside the supreme court wearing red robes and white bonnets, recognizable from the TV series based on the Margaret Atwood novel of female subjugation, The Handmaid’s Tale.
Democrats should focus on the threat posed to healthcare by Barrett, who in 2017 published a critique of Chief Justice John Roberts’ 2012 ruling to uphold the Affordable Care Act, said Ben Jealous, president of the progressive People for the American Way group. On 10 November, just one week after the election, the supreme court is scheduled to hear a separate case that could vacate the law.
“The confirmation hearings have to be all about what the nomination is about: destroying healthcare for millions of Americans,” Jealous said. “Anybody who wants to make this about a nominee’s personality, or even the life they’ve lived so far, is missing the point.”
Democrats on the committee acknowledge they do not currently have the votes to stop the nomination from moving forward, and Senator Cory Booker said last week that procedural stalling measures would not work – because the Senate majority leader, Mitch McConnell, could merely change the rules to keep the nomination on track.
Progressives must not write off the Ginsburg seat as lost, however, said Neil Sroka of the progressive Democracy for America group.
“America elected Democrats to fight for a bolder progressive vision for the future of the country,” he said. “And sometimes fighting means taking on difficult battles even if you’re not sure if it’s possible that you can win.”
Sroka said it was “appalling” and “laughable” that after having stood behind Trump’s Muslim bans, Republicans would accuse Democrats of elevating religious prejudice.
“Religious tests have no place in public life, and Democrats are the one party in the country right now that have been consistent on that,” Sroka said.
Throughout the Trump presidency, McConnell has prioritized the confirmation of conservative judges. But the measures he has taken to confirm Barrett in what could be the waning days of the Trump administration, which to movement conservatives would represent the culmination of a decades-long design on the supreme court, were seen as extraordinary even for him.
All other business in the Senate has adjourned for two weeks over health concerns following an outbreak on Capitol Hill of Covid-19 – but the Barrett hearing will proceed “full steam ahead”, McConnell announced.
Two of the Republican senators on the committee, Thom Tillis of North Carolina and Mike Lee of Utah, announced last week that they had tested positive for Covid-19 after attending a White House event to celebrate the Barrett nomination. Many others who attended the event also later tested positive, including the president and first lady, leading to whispers in Washington of a new nickname for the nominee: Amy “Covid” Barrett.
Graham, who has refused to be tested for coronavirus himself, has said that recuperating senators could attend committee hearings virtually, in an unusual arrangement that Booker said was inappropriate for the consideration of a lifetime supreme court appointment.
“We now have members of our committee who have fallen ill, and I pray for their wellbeing, but this just further highlights that this process is just wrong,” Booker told the Pod Save America podcast.
Jealous said it was ironic that the Republicans were taking health risks to secure the confirmation of a nominee who could, within weeks, begin dismantling a crucial healthcare law.
“Literally you have senators who are exposed to Covid because of a super-spreader event, refusing to get tested, so that they don’t have to quarantine, so that they can make a vote to appoint a judge who will take away healthcare from their neighbors in the midst of a pandemic,” said Jealous.
The Republican rush to confirm Barrett, Sroka said, betrayed their awareness that neither the nominee nor the confirmation process has the support of the American people.
“If they knew that the American people were on their side, and they knew that they had the support of the public on the issues that they’re trying to force through this court, they wouldn’t need to do what they’re doing right now,” Sroka said.
“But they know that they can’t win a fair fight, so they’re going to use every bit of power they have to force this agenda on us for a generation, while they still have it.”
