What To Watch For At Barrett's Confirmation Hearings

Law360 (October 8, 2020, 9:28 PM EDT) -- Seventh Circuit Judge Amy Coney Barrett will face senators next week for three days of U.S. Supreme Court confirmation hearings that are unlikely to sway any votes, but may give insight into a jurist with a relatively thin record.

Republicans are firmly committed to a quick confirmation before Election Day, except for one or two dissenters, while Democrats are uniformly opposed to speedy approval of any nominee before the election. This leaves Judge Barrett on track to become the first justice since at least 1900 confirmed without any minority-party support.

Although the potentially bitter hearings are unlikely to transform the confirmation process, they will give insight into a 48-year-old jurist who has served on the bench just three years and could touch every aspect of the American legal landscape.

Monday will feature opening statements from Senate Judiciary Committee members and Judge Barrett herself. Senators will take turns questioning the nominee Tuesday and Wednesday. On Thursday, other witnesses will testify about her record.

Senators to Watch

Judiciary Committee Chairman Lindsey Graham will lead the hearings just weeks before the Republican faces South Carolina voters in a surprisingly competitive challenge from Democratic Party official Jaime Harrison.

The chairman boosted his national profile during the most recent high court confirmation hearings with a fiery denunciation of Democrats' handling of sexual assault allegations during the confirmation process for Justice Brett Kavanaugh. President Donald Trump and many conservatives have frequently praised his performance.

Graham could seek to energize his Republican base during Judge Barrett's hearings, although that could risk alienating moderate voters.

Two other Republicans on the committee, Sens. Thom Tillis of North Carolina and Joni Ernst of Iowa, also face tight races and must balance stirring conservative enthusiasm with avoiding a backlash from centrists.

This will be Ernst's first time at a Supreme Court confirmation hearing; Republicans added two women to the Judiciary Committee last year after 11 male GOP senators weighed sexual assault allegations against then-nominee Judge Kavanaugh.

The most prominent Democrat on the panel is Sen. Kamala Harris of California, the party's vice presidential nominee, who is expected to make the case to voters that Republicans are hypocritically ramming through a conservative justice after blocking former President Barack Obama's moderate nominee in 2016.

Although Harris has the brightest spotlight, she will likely come last in the questioning because the committee moves by seniority.

The panel's senior Democrat, Sen. Dianne Feinstein of California, will once again lead her party in the hearings. While the 87-year-old isn't on the ballot again until 2024, her performance may determine whether party colleagues give her the Judiciary Committee gavel if Democrats win a Senate majority.

The panel has never had a female chair, and the two most likely alternatives are both men: Sens. Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island. They could view the hearings as an audition for the role of chair, too.

Durbin also might feel pressure to put up a fight after progressives attacked him recently for supporting Trump's picks for Illinois federal courts who had previously opposed abortion.

Supreme Court Precedent

While the nominee is likely to avoid addressing issues that could come before the high court, Democrats may instead question her views on stare decisis, or respect for precedent.

In 2017, then-Prof. Barrett wrote a law review article suggesting a commitment to originalism demands less deference to past decisions that didn't seek the original meaning of the law at the time it was enacted.

"The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis," she said. "Originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide."

Sen. Chris Coons, a Delaware Democrat on the Judiciary Committee, suggested Judge Barrett has an even more aggressive view of originalism than the late Justice Antonin Scalia, who continually pressed his colleagues to rethink rulings he believed went beyond the original meaning understood by those who drafted the Constitution and statutes.

"I've been reading her opinions and law review articles, and I'm increasingly convinced that she's even more conservative than Justice [Antonin] Scalia, for whom she clerked on the Supreme Court," Coons said Wednesday on MSNBC. "She has demonstrated a willingness to reverse long-settled precedent."

Unique Safety Precautions

Next week's hearings will mark the first time senators have ever had the option of questioning a Supreme Court nominee by videoconference, although the nominee and most senators are expected to appear in person.

Judge Barrett is tested daily for the coronavirus and tested negative again Thursday, according to White House spokesperson Judd Deere. She was exposed to Republican senators who later tested positive, but the Washington Post reported that she recovered from the virus this summer, which scientists believe provides some level of immunity.

At least one senator will participate remotely after two Republicans on the panel tested positive for coronavirus last week and two others quarantined themselves after suspected exposure; a spokesperson for Sen. Ted Cruz, R-Texas, who went into isolation Oct. 3, said he will appear by video for at least the first day.

Democrats on the committee have said the coronavirus exposure risk for senators and staff provides another reason for delay, but a Feinstein spokesperson said she plans to appear in person.

Graham said he would make changes to allow for safe distancing by using one of the Senate's largest rooms in the Hart Office Building, which has hosted several previous high court confirmation hearings and can, outside of a pandemic, accommodate more than 300 people.

The committee also will impose strict limits on physical attendance, perhaps limiting each senator to just one staffer. The Capitol has been closed to the public since March, so no members of the public may attend — including protesters.

Masks, gloves and hand sanitizer will be available, but it's not clear if or when masks will be required.

Hard Questions on Hot-Button Issues

Like past nominees, Judge Barrett is expected to sidestep policy questions by saying she cannot ethically comment on matters that might come before the court, but Democrats are still likely to raise controversial topics.

Democrats will warn she's a threat to the Affordable Care Act, the constitutionality of which will once again come before the justices on Nov. 10.

Liberals say the nominee could be the deciding vote that strikes down the hotly debated health care overhaul, under which some 20 million Americans are insured and which includes popular provisions such as guaranteed coverage for preexisting conditions.

The judge has criticized high court decisions upholding the law, writing three years ago that a 2012 ruling "pushed the Affordable Care Act beyond its plausible meaning to save the statute."

However, experts say it's hard to predict her vote in the pending case, let alone whether it would be the deciding vote to toss the whole law.

Democrats may also zero in on Judge Barrett's personal opposition to abortion, although they'll strain to avoid an appearance of criticizing her Catholic faith. Republicans have highlighted comments at her 2017 appeals court confirmation hearing, at which Feinstein told the nominee, "The dogma lives loudly within you."

The judge and her GOP backers will insist that she can and will distinguish her personal views from her legal decisions. Democrats may push back and point to two dissents from her three years on the bench that suggest she will indeed support abortion restrictions.

Senators on both sides of the aisle might explore her approach to antitrust issues amid bipartisan skepticism toward big tech companies. Her record doesn't give many clues to her stance on the issue.

Questions could also address affirmative action, religious freedom, employment law and intellectual property, and cases involving data breaches and transportation and gig-economy workers.

--Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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