Amy Coney Barrett Senate hearings: a crude display of political power
The first day of the Senate’s confirmation hearings for Amy Coney Barrett gave senators a chance to deliver opening statements that sounded like closing arguments. By the final day, their closing statements felt like the opening to something else: an election, obviously, but maybe even a better way of doing business in the U.S. Senate.
The hearings had ended on a note that was sure to have annoyed many liberals. It was struck by the ranking member of the minority, Democrat Dianne Feinstein, who told chairman Lindsey Graham: “This has been one of the best set of hearings that I’ve participated in. I want to thank you for your fairness and the opportunity of going back and forth.”
It will have annoyed many because Barrett’s confirmation is now all but assured. Graham’s good manners and gentlemanly Southern hospitality belied the simple fact that he had the luxury of being magnanimous and allowing that “back and forth”. The whole spectacle had been a display of crude power.
Republicans could have moved straight to a floor vote given their control of the Senate, but the spectacle of having their nominee rile up the Democrats served two purposes, being both a distraction from the deep hole that the President is in with coronavirus, but also an opportunity to produce some ad-worthy material as supposedly unconstitutional Democrats unfairly raged at Republicans merely conducting Senate business.
Or so they thought. For the most part, Democrats avoided the traps laid for them, especially around the subject of religion. From the start, the Republicans had pre-emptively defended Coney Barrett who had been under intense scrutiny regarding her involvement with the “People of Praise”, an ultra-conservative religious group. Coney Barrett, they said, was being subjected to persecution and Democratic questions would amount to the kind of “religious test” that’s prohibited by the Constitution. They also said that, as a mother of seven, she was being subjected to sneering from the anti-family liberals.
One suspects this was the purpose of Feinstein’s magnanimity. Democrats were never going to repeat the mistakes of the Brett Kavanaugh hearing, which many felt had gone too far and harmed the Democrat’s cause. Feinstein’s comments were, instead, the words of a minority anticipating becoming the majority, setting an example of the hearings that are sure to follow in subsequent years, but also establishing a note of old fashioned decency that is strikingly different to the faddish screams of the culture war.
From the beginning, the Democrats had clearly concluded that the fight was already lost, and they instead chose to speak to the electorate on the wider politics of this nomination. At one point, Senator Sheldon Whitehouse completely ignored the matter at hand to deliver a presentation on dirty money in U.S. politics. Kamala Harris, on the other hand, used her two sessions to prosecute the election by effectively highlighting the judge’s position on matters such as healthcare, abortion, and climate change.
There were few other highlights. For most of the four days – one day of opening statements, two days of questioning, and a day of debate and witness statements – Republicans grandstanded about religious freedom, the rights of the Senate, and the anti-Constitutionality of the Democrats. The Democrats grandstanded about the Republican hypocrisy given their treatment of Marrick Garland (Obama’s Supreme Court pick who was blocked by Republicans in 2016), the will of the people, as well as the Affordable Care Act and Roe vs Wade. None of it was original or unexpected.
The latter argument, around the landmark ruling that makes abortion legal, is one about the long-term influence of a conservative court but it’s the Affordable Care Act that addressed the current political reality. The Supreme Court is expected to rule on the matter in November and though many legal experts think they won’t overturn it, the threat is enough to be put pepper in the Democrat’s soup. Some of the most compelling arguments were those that highlighted the plight of people threatened by the removal of affordable health coverage.
Yet beyond the grandstanding, there were still moments grounded in proper politics. Senator Chris Coons of Delaware highlighted how the Senate is “racing ahead” with this nomination but refusing to vote for emergency relief for the American people. It was a fair point, often repeated across the hearings, that pinpointed the Republican confusion (and, indeed, divisions) over another coronavirus relief bill.
The President initially ended negotiations with Democrats (some say the steroids might have been talking) but now looks like he’s realised the advantage of handing cheques to voters in the coming weeks. Republicans, meanwhile, are now arguing the opposite, meaning they have remembered their fiscal conservatism but also indicating their separation from what many see as an outgoing President, as underscored by comments that emerged of Senator Ben Sasse condemning the President for “the way he treats women and spends like a drunken sailor” and also “kisses dictators’ butts”.
Only illness among Republicans could now stop the confirmation, with the committee vote pencilled in for the 22nd October and the full Senate wrapping things up only days before the election. As for Coney Barrett herself, she produced perhaps the most telling performance. She offered scant opinion, refused to confirm the limits of the President’s powers, and did nothing to display the acute intelligence for which she is credited by so many. It was a performance that spoke of the power politics at play behind the often-forced politeness.
No argument could derail this nomination and Barrett had nothing to prove, nothing to disprove. Indeed, beyond her credentials and archly conservative views, Amy Coney Barrett’s most appealing qualification remains her age. She is a year younger than Neil Gorsuch, who was 49 years old when nominated, and both of them are decidedly on the younger side of the average for a justice of the Supreme Court. Each could serve for two or three decades, a prospect that horrifies Democrats, even if Joe Biden and Kamala Harris refuse to talk about the options available to them should they win.
Arguments about court-packing are for another time and another Congress when we can be sure the politics will be far uglier than the phoney war of the past few days.