Amy Coney Barrett, President Donald Trump’s Supreme Court nominee, will face the Senate Judiciary Committee in a four-day hearing starting on Monday that kickstarts a confirmation process that Republicans hope to complete before the November 3 elections.
The truncated proceedings, which follow the death of Supreme Court Justice Ruth Bader Ginsburg on September 18, leave little room for unexpected developments with only 22 days until the election.
If confirmed, Barrett, who was appointed to an appellate court judgeship by Trump in 2017, will tip the balance on the top US court to a 6-3 conservative majority. That balance could have a wide-ranging effect on possible rulings related to the presidential election, an upcoming case involving the Affordable Care Act, also known as Obamacare, and a range of social issues including abortion, gun, and LGBTQ rights.
Republicans have a 53-47 majority in the Senate. Only two senators from the party have expressed opposition to confirming Barrett before the election, meaning Republicans appear likely to have the required votes to confirm Trump’s nominee.
The former Notre Dame University law professor, who has an originalist approach to the constitution and has been touted as a prime pick by social conservatives, is expected to face tough questions during the hearing, as Democrats try to win over Republicans in the chamber, or, at the very least, score political points among the electorate.
On Monday, Barrett and members of the Judiciary committee will give opening statements. On Tuesday and Wednesday, the legislators will question the appellate court judge. On Thursday, witnesses for and against Barrett will testify.
Judiciary Committee Chairman Lindsey Graham has said the committee will vote for Barrett on October 22, setting up a Senate floor vote by the end of the month.
Here are the key issues to watch during the proceedings:
Election rulings
Democrats have increasingly called on Barrett to pledge to recuse herself from any Supreme Court rulings related to the outcome of the presidential election, as she would be potentially deciding the political fate of the candidate who appointed her to the position.
The matter is expected to be central to the upcoming hearings, with Senate Minority Leader Chuck Schumer, the highest ranking Democrat in the chamber, most recently on Sunday calling Barrett to commit to recusal on any related cases.
President Donald Trump walks along the Colonnade with Judge Amy Coney Barrett to a news conference to announce Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, September 26, 2020, in Washington [Alex Brandon/AP photo]Trump has already predicted the presidential contest will “end up in the Supreme Court”.
“And I think it’s very important that we have nine justices,” Trump said during a news conference in September.
Affordable Care Act
On Sunday, top Democrats also called on Barrett to recuse herself from an upcoming case that could decide the fate of the Obama-era Affordable Care Act.
Trump has repeatedly pledged to overturn the legislation. Supporters, meanwhile, say repealing it could threaten the healthcare of millions of US citizens with pre-existing conditions.
In 2017, then-law professor Barrett wrote a law review essay criticising Chief Justice John Roberts’s reasoning in a 2012 Supreme Court ruling that saved the legislation.
Outside of questions of recusal, Democrats, especially vice presidential candidate Senator Kamala Harris, a member of the Judiciary Committee, are expected to seize on Barrett’s past opposition to the 2012 ruling.
Presidential candidate Joe Biden has made the perceived threat to the Affordable Care Act central to his messaging amid the Supreme Court battle, and Democrats see it as one of the most politically advantageous issues related to the confirmation amid the coronavirus pandemic.
Abortion
Barrett is also expected to face questions about how she would vote on challenges to Roe V Wade, the landmark 1973 Supreme Court ruling that federally guarantees the right to abortion access without excessive barriers.
Barrett has personally staked a position against abortion in several instances, including in 2006, while a law professor at the University of Notre Dame, when she added her name to an advertisement opposing “abortion on demand” that appeared in a local newspaper in Indiana.
However, during her 2017 confirmation hearing to her current judgeship, Barrett said her religious faith would not affect her decisions on the bench.
Still, anti-abortion rights advocates have characterised Barrett’s nomination as a major win for their cause.
Religious beliefs
Democrats are expected to strike a careful balance when it comes to questioning how Barrett’s religious beliefs will affect her ruling.
Barrett’s reported membership in a charismatic Christian group called People of Praise, an insular community that relies on a closely controlled hierarchical and patriarchal structure, has attracted scrutiny.
A law review article she co-authored decades ago that concluded Catholic judges are “morally precluded from enforcing the death penalty” has also raised concerns.
However, Democratic questioning related to Barrett’s faith or membership of the People of Praise is expected to draw accusations of anti-Catholic bias from Republicans.
During Barrett’s 2017 appellate court confirmation hearing, Democratic Senator Dianne Feinstein was criticised for telling Barrett: “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you.”
Complicating factors
With some Supreme Court confirmation hearings stretching on for months, Republicans have laid out an ambitious timeline to confirm Barrett, with little margin for error.
That means unforeseen circumstances could throw off their plans.
Three Republicans on the Judiciary Committee have in recent weeks tested positive for COVID-19. Senator Graham, the committee’s chairman, meanwhile recently refused to take a coronavirus test before a debate with his Democratic challenger, Jaime Harrison.
While Senators are allowed to participate remotely in the hearings, a potential outbreak in the chamber could slow, or derail, the proceedings.
A speedy vetting process also invites the possibility of oversights and omissions that may increase the likelihood of new factors coming to light during the hearings.
For instance, CNN recently reported that Barrett had failed to disclose two speeches she gave in 2013 at events hosted by anti-abortion rights student groups.
Following the report, the Judiciary Committee released an update to Barrett’s disclosures that included the speeches as well as a paid advertisement that Barrett signed that criticised Roe V Wade.
While those additions are not expected to change the equation of the proceedings, they raise questions over what else may have been left out.