So they’re pinning their hopes on using the hearing to persuade the public ― and just enough Republican senators ― that she is the wrong nominee at the wrong time.
It’s an admittedly weak hand. They’re just outnumbered. But if they can come up with ways to delay a vote until after the election on Nov. 3, when Joe Biden may win the presidential election, Republicans will face tremendous pressure to let him fill the seat in 2021.
Democrats see public pressure as key to their strategy for derailing the process. They plan to grill Barrett, who is currently a conservative U.S. appeals court judge, on her record of opposition to the Affordable Care Act, Roe v. Wade, gun restrictions, environmental regulations and worker rights.
They’ll also hammer the point that it is unprecedented to confirm a Supreme Court nominee weeks before a presidential election and that what’s driving the urgency is that President Donald Trump wants Barrett on the court before Nov. 3 in the event the election results are close, and the Supreme Court has to declare the winner.
“You can expect … the Affordable Care, the rush to fill this nomination and the protection which the president believes he’s buying with this nominee is a starting point for virtually every Democratic senator on the committee,” Sen. Dick Durbin (D-Ill.), a member of the Judiciary Committee, told reporters Friday.
“The most important thing we can do is build a case that Barrett is a radical who will end the Affordable Care Act,” added Sen. Chris Murphy (D-Conn.), pointing to Democrats’ pressure campaign in 2017 that helped stop Republicans’ effort to repeal the health care law.
Of course, Democrats made similar arguments against Trump’s prior two Supreme Court picks, Neil Gorsuch and Brett Kavanaugh, and they went on to get confirmed.
Some progressive groups and activists are furious that Democrats are participating in the hearing at all, accusing them of legitimizing a process that is anything but legitimate. It didn’t help that nearly all Democrats on the committee took courtesy calls with Barrett last week ― a far cry from Republicans’ treatment of President Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016, with whom they refused to meet and for whom they declined to hold a hearing or a vote.
“It’s becoming increasingly clear that Democrats are not doing enough to show that this is an illegitimate process with an illegitimate nominee,” said Chris Kang of Demand Justice, a progressive judicial advocacy group. “It starts at the top with [ranking Democratic Sen.] Dianne Feinstein, who doesn’t seem to be fighting as hard as we would have hoped. When she and others take phone calls with the nominee, it feels like business as usual over there.”
He added, “It’s incredibly demoralizing to see these senators refuse to fight.”
Zephyr Teachout, an associate law professor at Fordham Law School and a former Democratic candidate for Congress and for governor of New York, agreed that Democrats haven’t done enough to try to jam the process.
“It is true that they’re in a really tough position, and the odds are long, but the stakes are so high,” Teachout said. “They should be in an absolute war-room fighting position, actively staffed around the clock, both on procedures and messaging. … Instead, you have senators legitimizing this process by meeting with Barrett. It’s [Senate Democratic leader] Chuck Schumer’s job to keep the caucus together and insist this process is totally illegitimate.”
Democrats on the committee who took calls with Barrett were Feinstein, Durbin and Sens. Patrick Leahy (Vt.), Amy Klobuchar (Minn.), Sheldon Whitehouse (R.I.), Chris Coons (Del.) and Cory Booker (N.J.). Sens. Mazie Hirono (D-Hawaii) and Richard Blumenthal (D-Conn.) did not.
“I have refused to meet with Amy Barrett,” Blumenthal told reporters last week. “It’s a sham and an illegitimate process. … 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 to our Republican colleagues.”
Sen. Kamala Harris (D-Calif.), who is a member of the committee and currently running for vice president, did not take a call with Barrett either.
It’s becoming increasingly clear that Democrats are not doing enough to show that this is an illegitimate process with an illegitimate nominee. Chris Kang of Demand Justice
Adam Jentleson, a former top aide to former Sen. Harry Reid (D-Nev.), recently published a piece outlining all the ways Democrats could lean on Senate procedures to delay the confirmation process. He said they should have boycotted the hearing altogether to show this isn’t a normal process. Short of that, they shouldn’t have taken calls with Barrett.
“Courtesy meetings provide an upside only to the nominee and Republicans,” Jentleson said. “It legitimizes the process, and it doesn’t matter how many angry tweets you send if your actions show that you consider them to be qualified and the process to be legitimate. It was a mistake.”
Feinstein spokesman Tom Mentzer pushed back on the idea that Democrats aren’t doing enough to fight and said it’s to their advantage to participate in the hearing.
“Senators are going to make crystal clear that this isn’t business as usual and show what’s at stake and why the process is being abused by Republicans (health care, individual rights, etc.),” Mentzer said. “But simply put, there are no tools that aren’t already being used to slow or block this process. The only way to win these fights is by winning in November.”
Another Senate Democratic aide, who requested anonymity to speak freely, said it would be counterproductive for Democrats to boycott the hearing because “there’s nothing to stop Republicans from not even holding a hearing and voting three weeks earlier.”
Democrats will almost certainly highlight in the hearing that Barrett’s confirmation is directly tied to the fate of the Affordable Care Act. The Supreme Court is set to hear a lawsuit on the constitutionality of the health care law on Nov. 10 ― one week after the election. Nearly all legal experts view the case as frivolous, but it’s still coming before the court just as Barrett would potentially get her seat.
In a Sunday news conference in New York City, Schumer called on Barrett to recuse herself from cases regarding Obamacare’s constitutionality and any possible election-related litigation. Republicans have said openly that Barrett needs to be confirmed so she can rule on cases related to the outcome of the election, worrying Democrats that she will help Trump stay in power. The judge declined to commit to recusal from election cases in her Senate questionnaire last month.
Democrats planned to deny Republicans a quorum when Barrett’s nomination is voted on in the Judiciary Committee, Schumer said, and on the Senate floor as part of a procedural last-ditch effort to slow her confirmation. Republicans can simply change the rules and advance the nomination ― as they are expected to ― but Democrats say such a move would only highlight the unprecedented nature of her appointment.
“She’s being rushed through to decide decisions that she seems to already have made up her mind on,” Schumer added. This process is “illegitimate, dangerous, and unpopular.”
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