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The Amy Coney Barrett Hearings Are a Gut Check for Democrats

After this week, they’ll never be able to wage the same old polite judicial war with Republicans again.

Susan Walsh/Getty Images

Washington hardly needed another spectacle to go along with the ongoing election season and the last fortnight of daily news about Covid-19 infiltrating President Donald Trump’s inner circle. Monday will nonetheless mark the beginning of confirmation hearings for Amy Coney Barrett. This is in many ways the apotheosis of Trump’s first term in office, the moment that redeems all of the genuinely embarrassing things that he has put Republicans through over the past four years.

But on the surface, these hearings will likely resemble something familiar. Barrett will open the proceedings with a personal statement that will likely highlight her personal story and attributes. For the past three years, she served as a judge on the Seventh Circuit Court of Appeals. Before that, she was a law professor at the University of Notre Dame, where her scholarly output largely focused on originalism and precedent. She served as a clerk for Antonin Scalia. At 48 years old, she is among the youngest Supreme Court nominees in the modern era. (Clarence Thomas was 43 years old when confirmed in 1991.) If Barrett lives at least as long as her predecessor, Ruth Bader Ginsburg, and does not retire, she would still be participating in cases in the year 2059.

Barrett may also discuss her faith and how it has shaped her life. Poor questioning about her Catholic beliefs by California Senator Dianne Feinstein during Barrett’s 2017 confirmation hearing turned the judge into a conservative cause célèbre. The high-profile controversy arguably played a major role in her being nominated to the Supreme Court today. Republicans are salivating at the prospect of a similar episode this time, hoping to use any other inappropriate questions by Democratic senators as an election-year cudgel to boost their flagging political fortunes. While Democrats would be wise not to fall into the right-wing trap, some senators might not be able to help themselves and ask about her membership in People of Praise, an eclectic Christian community.

In fairness, there is no reason to think Barrett isn’t a collegial person or an intelligent jurist. But if qualifications and temperament were all that mattered, Merrick Garland would be preparing to celebrate his fourth year as a Supreme Court justice. Barrett will likely downplay the real qualities that have brought her to this point. Like the other conservative justices on the court today, Barrett is the product of a right-wing machine that scrutinizes would-be judicial nominees for their ideological commitment, then wields an impressive combination of personal connections and donor outreach to place them on the courts. This week of hearings is the culmination of that movement’s work—and perhaps its high-water mark as well.

So what sort of questions will Barrett face? Democrats will signal their avenues of inquiry during Monday’s opening session; some routes are obvious. At most Supreme Court hearings, the nominee and their defenders insist that their personal views on abortion rights are a Delphic mystery, unknown to all but the nominee and the gods. Unlike most Supreme Court nominees, Barrett’s stance is unambiguous and indisputable. In 2006, she signed an open letter by an anti-abortion group in Indiana that was printed in local newspapers. “The Supreme Court’s 1973 Roe v. Wade decision legalized abortion for any reason,” it read. “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” No mystery there.

Some of Barrett’s interlocutors will likely try to sound out her views on how originalism, which claims to interpret the Constitution based on its original meaning or intent, interacts with precedent. Will Barrett be a pragmatist when it comes to the court’s prior rulings, and leave them intact, or a revolutionary who tries to overthrow them in favor of the one, true understanding of our nation’s fundamental law? Some of her academic writings indicate that she might favor the latter approach. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” she wrote in a 2013 law review article.

Supreme Court nominees are routinely quizzed on rulings they’ve handed down as lower-court judges. Neil Gorsuch was memorably questioned about a ruling he wrote that denied a truck driver’s claims against his employer after he was forced to abandon his cargo to survive life-threatening conditions in subzero temperatures. After Trump announced Barrett’s nomination last month, her dissent in a gun-rights case drew fresh scrutiny. A defendant argued that his mail-fraud conviction shouldn’t preclude him from owning a gun; she agreed and wrote that federal and state laws that forbid it are unconstitutional when applied to nonviolent felonies. The scope of the Second Amendment is still relatively unsettled after two landmark cases a decade ago; Barrett’s dissent indicated she would take an expansive view of that right.

In that same case, Barrett also obliquely argued that the right to vote, unlike the right to bear arms, is not an “individual right” and therefore may not deserve the same level of protection in the courts. That raises questions about how she would approach voting rights cases on the high court, which is already unfriendly to them in the Roberts era. Barrett is one of three Supreme Court justices who worked for George W. Bush in Bush v. Gore 20 years ago, along with Chief Justice John Roberts and Justice Brett Kavanaugh. She will likely face questions about whether she would help Republicans throw another election their way this November—as some Republicans are openly hoping she will. “We need nine justices,” Trump recently said. “You need that, with the unsolicited millions of ballots that they’re sending.”

If Barrett does help keep Trump in power this November, it will be the ultimate expression of the conservative movement’s efforts to secure minority rule over the past decade. Through partisan gerrymandering and voter suppression, Republican state lawmakers have entrenched themselves in office in North Carolina, Wisconsin, and other states. Structural advantages and demographic quirks give conservatives more power in the Electoral College and the Senate, allowing Donald Trump to win with three million fewer votes in 2016 and enabling him and Mitch McConnell to install a small army of conservative judges throughout the federal courts. Despite those three million fewer votes, Trump will have likely named three of the Supreme Court’s nine justices before voters can render another verdict.

As Barrett’s hearing begins, however, another future looks possible. Former Vice President Joe Biden is currently leading in every poll by significant margins; Trump’s abrasive debate performance and brief hospitalization with Covid-19 may mark the end of his political luck. Biden once clearly opposed court-packing as a solution to the Supreme Court question. Since Ginsburg’s death, he and running-mate Kamala Harris have gotten more cagey about their plans. “They’ll know my opinion when the election is over,” Biden told reporters last week. His answer, if victorious, will determine whether Monday’s hearing is the dawn of an even more conservative era for the Supreme Court—or the high-water mark of an ideological movement that sought to govern a democracy without elections or votes.