What Happens Now That Amy Coney Barrett Is The Nominee

Law360 (September 27, 2020, 7:40 PM EDT) -- Republican senators over the weekend vowed that Judge Amy Coney Barrett will join the U.S. Supreme Court before Election Day, a promise that will require the fastest confirmation process since 1981.

Judiciary Committee Chairman Lindsey Graham, R-S.C., called Judge Barrett "highly qualified in all the areas that matter — character, integrity, intellect and judicial disposition." He said her confirmation hearings will begin Oct. 12. GOP leaders aim to confirm Judge Barrett by Halloween and have her on the high court before Election Day.

That would mark the fastest Supreme Court appointment since 1981, when senators voted unanimously for Justice Sandra Day O'Connor 33 days after her formal nomination.

Democrats allege the push to seat a Justice Barrett on the eve of an election, one that President Donald Trump predicts will end up at the high court, will be a rushed, rubber-stamp process. They also concede that there's not much they can do to stop the confirmation. Nevertheless, a number of them have threatened to boycott various steps in the process as a way of drawing attention to proceedings they say are rushed and unfair.

With a compressed timeline, Judge Barrett faces a busy month that will include submitting paperwork to lawmakers, making "courtesy visits" to senators, preparing for confirmation hearings and answering a slew of follow-up questions from senators on the Judiciary Committee.

"Typically for the next little period, the nominee goes to Capitol Hill and roams to and fro, meeting with senators, starting with the leadership of the Senate and the committee," said Thomas Jipping, a former GOP Judiciary Committee staffer who has worked on high court nominations starting with Justice Antonin Scalia in 1986.

The White House chief of staff, Mark Meadows, said Sunday on CBS that Judge Barrett would submit her paperwork Monday and start making courtesy visits Tuesday.

The judge will need to quickly update her extensive Judiciary Committee questionnaire, listing opinions and speeches. There also may be a nonpublic portion that could cover sensitive topics like family and finances.

Democrats, furious over tactics GOP leaders have utilized to all but assure Trump's third Supreme Court appointment, have split on whether to participate in the visits.

Minority Leader Chuck Schumer, D-N.Y., told reporters Sunday that he would not meet with Judge Barrett because "the whole process has been illegitimate." At least two other Democratic senators have made similar comments. In contrast, Sen. Cory Booker, D-N.J, said Sunday on NBC that he looked forward to "a good, informed dialogue back and forth."

As for her Senate confirmation hearings, Barrett's preparation will be extensive.

"Behind the scenes, there's a lot of 'murder boards' and mock hearings to help prepare the nominee," said Jipping, now with the conservative Heritage Foundation. "It's kind of like if you're preparing for a Supreme Court argument, you'll do a moot hearing."

The judge also may brush up on any areas of law she hasn't encountered as a law professor or in her three years on the Seventh Circuit, as well as committee members' pet issues.

Nominees usually get help from the White House counsel's office and DOJ's Office of Legal Policy, where Mark Champoux was a principal deputy assistant U.S. attorney general before leaving this year to become a partner at Davis Graham & Stubbs LLP.

Champoux said the practice is "not so much to rehearse an answer, it's really just to get the candidate feeling comfortable and feeling prepared, just like you would prepare for oral argument."

The real thing will come quickly.

Within hours of Trump announcing Judge Barrett as his selection, the Judiciary Committee chairman said hearings would start 16 days later. That would be the shortest interval between nomination and hearings for a high court pick since Justice Anthony Kennedy in 1987.

At least three days of hearings will begin Monday, Oct. 12, with opening statements from committee members and Judge Barrett herself, Graham said Saturday on Fox News. The next two days would feature rounds of questioning by the panel's 22 members. The chairman's office said there would also be "testimony by those who know Judge Barrett the best and legal experts."

Those hearings are not subject to quorum requirements, so Democrats could not delay those proceedings with a boycott. Scheduling objections would fail because the Senate will not be in session and lawmakers can't claim they will interfere with votes or other obligations.

Republicans dismiss Democrats' complaints of a rushed process, saying sufficient consideration for Barrett doesn't require a long process, given that Judge Barrett came before senators three years ago for her Seventh Circuit appointment in late 2017.

"The Senate is already familiar with her record," said Champoux, who supervised U.S. Department of Justice work on Trump's judicial nominations from early 2018 until this July. "Historically, this length of time is not out of the norm at all."

Before 1950, Senate confirmation votes often came within a week or two of nomination. Public hearings only became standard in the 1950s. However, from 1967 through 2017, the median time from formal nomination to final action was 68 days.

While this year's schedule is fast compared to recent decades, Democratic complaints are just delay tactics, Jipping argued.

"The only part of Judge Barrett's record that the committee has not seen in the last three years are her [approximately 105] written opinions" on the Seventh Circuit, Jipping said. "If they can't study those within a few days, they're dragging their feet."

With few procedural roadblocks at their disposal, Democrats are hoping to sway public opinion against quick confirmation by focusing on a possible threat to the Affordable Care Act.

The health care overhaul's constitutionality is before the high court again, with oral arguments set for exactly one week after Election Day. With a Justice Barrett on the court, Democrats warn, conservatives finally may have the votes to strike down the law popularly known as Obamacare.

"With Judge Barrett's confirmation, the Supreme Court unfortunately could repeal the Affordable Care Act and deny millions of Americans health insurance in the midst of a global pandemic," the Judiciary Committee's top Democrat, Sen. Dianne Feinstein of California, said in a statement Saturday.

Feinstein cited Judge Barrett's assertion in a 2017 law review article that Chief Justice John Roberts' 2012 ruling "pushed the Affordable Care Act beyond its plausible meaning to save the statute."

Trump referenced the pending ACA case in a tweet Sunday, promising an unspecified but improved "alternative if it is terminated in the Supreme Court."

A dilemma for Democrats will be questioning Judge Barrett's ideology without attacking her Catholic faith, as Republicans have accused them of doing, often citing Feinstein's 2017 comment to Judge Barrett that "the dogma lives loudly within you."

Instead of examining the nominee's religious commitments, Democrats may focus on her Federalist Society ties. Her financial disclosure forms for 2018 and 2019 document 10 trips funded by the conservative legal group, according to the transparency group Fix the Court.

After the hearings, Judiciary Committee members may submit written follow-up questions for the nominee. Democrats could send dozens of these questions for the record, which are usually due quickly for Supreme Court nominations; the chairman could require them within a day of the hearings so Judge Barrett can work over the weekend.

The next step is a committee vote to send the nomination to the Senate floor, which Graham predicted would come Oct. 22, or Oct. 26 at the latest.

Committee votes do have a quorum requirement to include at least two members from the minority party, so Democrats could theoretically attempt a boycott. Any member may request action be delayed until a subsequent meeting, but Graham could schedule the next meeting quickly.

Republicans are likely to overcome any other procedural hurdles too and send Judge Barrett's nomination to the Senate floor with enough time to hold a final confirmation vote before Halloween — unless something dramatically changes the situation before then.

Throughout the process, voters will see a deluge of related advertising. The conservative Judicial Crisis Network and the progressive group Demand Justice each have pledged to spend $10 million.

Regardless of advocacy and strident opposition, Democrats have acknowledged they can't block the appointment. The chamber's 53 Republicans need just 50 votes to confirm a justice.

Only two GOP senators, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, have said action should wait until after the election. Murkowski later said she would consider voting to confirm a nominee before Election Day anyway, while Collins said she would not.

Sen. Dick Durbin of Illinois, the chamber's second-ranking Democrat and a longtime Judiciary Committee member, said Sunday on ABC that his party can slow down Barrett's confirmation "perhaps a matter of hours, maybe days at the most, but we can't stop the outcome."

--Editing by Cole Hill.

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