Trump’s nomination of Barrett heightens partisan conflict as election nears6 min read . Updated: 28 Sep 2020, 09:01 AM IST
Republicans look to move quickly through confirmation process; Democrats warn of threat to Obamacare
President Trump’s formal nomination of Judge Amy Coney Barrett to the Supreme Court moves the partisan fight over the seat to a new phase, as Republicans sprint to get the president’s third high-court pick confirmed ahead of Election Day and Democrats put their focus on a health-care case the high court is scheduled to hear in November.
The nomination battle now shifts to Judge Barrett’s qualifications and record on the bench, after Republicans ignored Democratic calls to leave the seat open until voters select the next president. Questions about how Judge Barrett could vote on such hot-button issues as abortion and the Affordable Care Act are set to play a prominent role in her confirmation process.
If confirmed in the GOP-led Senate, Judge Barrett, currently a member of the Seventh U.S. Circuit Court of Appeals, could cement a conservative majority on the Supreme Court for decades. She would succeed the late Justice Ruth Bader Ginsburg, the leader of the court’s liberal wing, who died this month from metastatic pancreatic cancer at the age of 87.
Senate Republicans say they plan to hold hearings on Judge Barrett’s nomination over three or four days during the week of Oct. 12 and hope to have the Senate vote on her confirmation the week before Election Day, Nov. 3.
“The Senate Judiciary will act promptly to conduct confirmation hearings and to assess her record and her qualifications, and I have every confidence that the Senate will confirm Judge Barrett as Justice Barrett before Election Day," said Sen. Ted Cruz (R., Texas), a member of the Senate Judiciary Committee.
Beyond making the public case against Judge Barrett, Democrats have few tools to stop her nomination.
“We can slow it down perhaps a matter of hours, maybe days at the most, but we can’t stop the outcome," Sen. Dick Durbin (D., Ill.) said Sunday on ABC.
One of the court’s biggest pending cases, set for argument on Nov. 10, a week after the election, involves the future of the Affordable Care Act. If Judge Barrett, a conservative-leaning judge, is seated in time for that argument, she would vote on a case that could invalidate the Obama-era health law. A lower court found that the mandate to carry health insurance is unconstitutional because Congress in 2017 reduced the tax penalty for failing to maintain coverage to zero, invalidating a provision the Supreme Court previously upheld because it was a tax.
Mr. Trump tweeted on Sunday that the health-care law would be “replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court." Republicans haven’t offered a plan to replace the Affordable Care Act, and the president’s tweet fueled Democratic criticism of the confirmation.
Democrats are focusing on the ACA case in their arguments against confirming Judge Barrett. Senate Minority Leader Chuck Schumer (D., N.Y.) wrote a letter to Senate Democrats Saturday advising them to frame the debate over Judge Barrett’s confirmation around the future of the health-care law.
Sen. Chris Coons (D., Del.), a member of the Senate Judiciary Committee, said that Republicans shouldn’t hold hearings on the nomination so close to an election. If they do go forward, though, he said he plans to focus on health care.
“If I have a chance to question her and to highlight the ways in which she was chosen to overturn the Affordable Care Act and that will take health care away from more than 100 million Americans, 150 million Americans, yeah, I’m going to question her about that," he said.
Republicans have largely rallied around Judge Barrett, a former professor at Notre Dame Law School. Mr. Trump praised Judge Barrett, as a highly qualified pick for the Supreme Court at the formal nomination at the White House Saturday.
“Her qualifications are unsurpassed—unsurpassed—and her record is beyond reproach. This should be a straightforward and prompt confirmation. It should be very easy," he said.
Judge Barrett, who appeared with her husband and seven children, pledged not to let politics influence her work on the Supreme Court.
“Judges are not policy makers, and they must be resolute in setting aside any policy views they might hold," she said.
Democrats have called on Republicans to let the winner of the presidential contest between Mr. Trump and former Vice President Joe Biden make the nomination to the seat, pointing to the GOP’s refusal to consider Judge Merrick Garland’s nomination by President Obama to the Supreme Court in 2016. Some Senate Democrats have said they wouldn’t meet with Judge Barrett. Two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, have opposed holding a vote on the nominee before the election.
Mr. Biden, in a speech Sunday in his hometown of Wilmington, Del., again urged Senate Republicans to hold off on acting on the president’s nomination until after the election. Mr. Biden said Mr. Trump’s nomination was aimed at dismantling the Affordable Care Act, noting Judge Barrett’s criticism of the Supreme Court’s decision to uphold the law in 2012.
“President Trump sees a chance to fulfill his explicit mission: Steal away the vital protections of the ACA from countless families," Mr. Biden said.
Mr. Biden again declined to say whether he would attempt to expand the number of seats on the Supreme Court if he is elected president.
Republicans say the situation in 2016 was different because the Senate and White House were split between the two parties, whereas this year the GOP controls both. The Senate has confirmed many nominees to the Supreme Court during presidential election years, the GOP says.
Some Republicans anticipate that previous debates about whether the GOP should move forward with a hypothetical nominee will now be overshadowed by a discussion of Judge Barrett and whether she qualifies for the court.
“These questions of whether the president should make a nomination or if the Senate should move forward, that was before we have a nominee. Now we have a nominee," said Sen. John Barrasso (R., Wyo.), a member of Senate Republican leadership. “The focus should turn there and what people think of her, and whether she qualifies or not."
A former law clerk for the late Justice Antonin Scalia, Judge Barrett, 48 years old, was widely expected to be the nominee. The New Orleans native and Notre Dame Law School graduate was a finalist for the Supreme Court opening that went to Justice Brett Kavanaugh. She remained high on the White House’s list of candidates for another vacancy.
Social conservatives voiced support for Judge Barrett, who is Catholic, because of their belief that she could give the Supreme Court a fifth vote to overturn or limit Roe v. Wade, the 1973 high-court precedent that established a constitutional right to end a pregnancy.
Judge Barrett’s religious faith prompted scrutiny during her 2017 confirmation hearing for the Seventh Circuit. A handful of Democratic senators, including Sen. Dianne Feinstein of California, asked Judge Barrett—then a nominee—whether she would be able to separate her religious beliefs from her duty of impartiality as a judge. She said she could, adding that it was never appropriate for a judge to impose her personal convictions on the law.
Some Catholics and Republicans criticized Ms. Feinstein, accusing her of imposing a religious test for nominees.
Republicans are eager to see how Democrats scrutinize Judge Barrett during confirmation hearings, saying that intensive or critical questioning of the nominee could hurt Democrats politically. GOP lawmakers see the battle over confirming Justice Kavanaugh and the sexual-misconduct allegations against him as having helped the party pick up Senate seats in the 2018 midterm elections, even as Democrats won back the House.
“Democrats have got to be careful they don’t turn it into a circus like they did with Kavanaugh. That hurt them politically," Sen. Mike Braun (R., Ind.) said.
Mr. Trump and Republicans also hope that the fight over the court vacancy could galvanize their campaigns as the coronavirus pandemic continues. According to the latest Wall Street Journal/NBC News poll, 51% of Americans see Mr. Biden as better than the president at dealing with the pandemic, compared with 29% for Mr. Trump. The same poll shows Mr. Biden leading Mr. Trump nationally 51% to 43% among registered voters.
—Kristina Peterson and Ken Thomas contributed to this article.
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