The Senate Judiciary Committee on Thursday set an October 22 vote on Amy Coney Barrett’s Supreme Court nomination as Republicans race to confirm President Donald Trump’s pick before the November 3 election.
The session is without Barrett after two long days of public testimony in which she stressed that she would be her own judge and sought to create distance between herself and past positions critical of abortion, the Affordable Care Act and other issues.
Her confirmation to take the seat of the late Justice Ruth Bader Ginsburg seems inevitable, as even some Senate Democrats acknowledged.
Senator Lindsey Graham pushed past Democratic objections to set the panel’s October 22 vote on recommending her confirmation, even before final witnesses testify before and against her nomination. The committee set the vote for next week.
“This is a sham,” said Democratic Senator Amy Klobuchar, from Minnesota
In the minority, Democrats acknowledge there is little they can do stop Republicans from locking a conservative majority on the court for years to come. The shift would cement a 6-3 conservative majority on the court and would be the most pronounced ideological change in 30 years, from the liberal icon to the conservative appeals court judge.
But in arguments on Thursday, Democratic Senators urged their Republican colleagues to delay the process, saying the date of the confirmation was set before all the hearings had finished and as unknown speeches and writings by Barrett were still coming to light.
Facing almost 20 hours of questions from senators, the 48-year-old judge was careful not to take on the president who nominated her and sought to separate herself from writings on controversial subjects when she was an academic. She skipped past Democrats’ pressing questions about ensuring the date of next month’s election or preventing voter intimidation, both set in federal law, and the peaceful transfer of presidential power.
She also refused to express her view on whether the president can pardon himself. “It’s not one that I can offer a view,” she said in response to a question on Wednesday from Democratic Senator Patrick Leahy of Vermont.
Democrats raised those questions because President Donald Trump has done so himself.
When it came to significant issues that are likely to come before the court, including abortion and healthcare, Barrett repeatedly promised to keep an open mind and said neither Trump nor anyone else in the White House had tried to influence her views.
“No one has elicited from me any commitment in a case,” she said.
Nominees typically resist offering any more information than they have to, especially when the president’s party controls the Senate, as it does now. But Barrett would not engage on topics that seemed easy to swat away, including that only Congress can change the date that the election takes place.
She said she is not on a “mission to destroy the Affordable Care Act,” though she has been critical of the two Supreme Court decisions that preserved key parts of the Obama-era healthcare law. She could be on the court when it hears the latest Republican-led challenge on November 10.
Barrett is the most open opponent of abortion nominated to the Supreme Court in decades, and Democrats fear that her ascension could be a tipping point that threatens abortion rights.
There was no hiding her views in at least three letters and advertisements she signed over 15 years and her membership in Notre Dame’s Faculty for Life. So Republican senators embraced her stance, proudly stating that she was, in Graham’s words, an “unashamedly pro-life” conservative who is making history as a role model for other women.
Republican Senator Josh Hawley, from Missouri, said there “is nothing wrong with confirming a devout pro-life Christian”.
Barrett refused to say whether the 1973 landmark Roe v Wade ruling on abortion rights was correctly decided, though she signed an open letter seven years ago that called the decision “infamous”.
Democrats pressed repeatedly on the judge’s approach to healthcare, abortion, racial equity and voting rights, but conceded they were unlikely to stop her quick confirmation.
“When you are on the court,” Democratic Senator Sheldon Whitehouse, from Rhode Island, began one question in which he asked her to keep an open mind on the high court bench. Barrett readily agreed to do so.
In an exchange with California Democratic Senator Dianne Feinstein, Barrett resisted the invitation to explicitly endorse or reject the late Justice Antonin Scalia’s comments about perpetuating “racial entitlement” in a key voting rights case.
“When I said that Justice Scalia’s philosophy is mine, too, I certainly didn’t mean to say that every sentence that came out of Justice Scalia’s mouth or every sentence that he wrote is one that I would agree with,” Barrett said.
She called the Voting Rights Act a “triumph in the civil rights movement,” without discussing the specifics of the earlier challenge to it. The court will hear another challenge to the law early next year.
One of the more dramatic moments came late on Wednesday when Barrett told California Senator Kamala Harris, the Democratic vice presidential nominee, that she would not say whether racial discrimination in voting still exists nor express a view on climate change.
Harris asked if she agreed with Chief Justice John Roberts, who wrote in a 2013 voting rights case that “voting discrimination still exists; no one doubts that”.
Barrett said she would “not comment on what any justice said in an opinion”.
Asked whether “climate change is happening,” Barrett said she would not engage because it is “a very contentious matter of public debate”. Barrett did, however, say she believes the novel coronavirus is infectious and that smoking causes cancer.
Along with trying to undo the healthcare law, Trump has publicly stated he wants a justice seated for any disputes arising from the election, and particularly the surge of mail-in ballots expected during the pandemic as voters prefer to vote by mail.
Barrett testified she has not spoken to Trump or his team about election cases, and declined to commit to recusing herself from any post-election cases.
She did describe what the role of the court would be if it were asked to intervene. “Certainly the court would not see itself – and would not be – electing the president. It would be applying laws that are designed to protect the election and protect the right to vote,” Barrett said.
In 2000, the court’s decision in Bush v Gore brought a Florida recount to a halt, effectively deciding the election in George W Bush’s favour. Barrett was on Bush’s legal team in 2000, in a minor role.