Committee Democrats boycotted the vote and instead placed poster-size pictures of Americans who they say would be hurt by a Justice Barrett who might potentially cast a deciding vote striking down the Affordable Care Act and its mandated coverage for those with preexisting conditions.
The Supreme Court is poised to hear a challenge from 18 GOP state attorneys general to the Obama-era law on Nov. 10, a suit that the Trump administration has joined and Democrats sought to make their central line of questioning during Barrett’s confirmation hearings last week.
“We did it,” Chairman Lindsey Graham said to his fellow Republican members after the vote. “Judge Barrett is going to the floor. I hope you look back at this time on the committee and say, ‘I was there when it mattered.’ And you were.”
At a separate press conference, held in protest on the Capitol steps shortly afterward, Democrats defended their decision to boycott what they called the “illegitimate” vote.
“Democrats will not lend a single ounce of legitimacy to this sham vote in the Judiciary Committee,” Senate Minority Leader Chuck Schumer said. “We are voting with our feet. We are standing together and we are standing against this unprecedented mad rush to jam through a Supreme Court nomination just days, days before an election.”
Despite objections from Democrats, Senate Majority Leader Mitch McConnell is expected to tee up a key procedural test vote for Sunday, with a final confirmation vote expected Monday night.
Democrats have fought to slow the nomination, arguing that the person who replaces Ginsburg should be selected by whoever wins the November election, a precedent they say was set by Senate Republicans who in 2016 blocked President Barack Obama’s nominee to the court. Obama appointed Judge Merrick Garland to replace the late Justice Antonin Scalia, a conservative star, eight months before Election Day, but McConnell steadfastly refused to consider the nominee, citing the proximity to the vote. McConnell and Senate Republicans would not even meet with Garland.
“You could not design a set of circumstances more hypocritical than this,” Schumer said Wednesday of McConnell’s decision to move forward with a vote on Barrett. “The truth is that the Republican majority is perpetrating the most rushed, most partisan, least legitimate process in the long history of Supreme Court nominations.”
But Republicans have argued that GOP control of both the Senate and the White House makes Barrett’s nomination proceedings different from Garland’s, giving them an imperative to act quickly.
Normally, on average, it takes the Senate about 70 days from formal nomination to full Senate confirmation for a Supreme Court appointee. President Donald Trump’s first nominee, Neil Gorsuch, was confirmed in 65 days. By comparison, Barrett’s nomination — if she is confirmed Monday, as expected — will have taken 30 days.
Graham has been committed to an Oct. 22 vote on Barrett for weeks now, and no level of protest by Democrats is expected to deter him. The South Carolina senator, facing a tight reelection race back home, has campaigned on a promise to “fill the seat.”
During the meeting Thursday, Graham blamed Democrats for making changes to Senate rules in 2013 that lowered number of senators needed to confirm a presidential nominee.
“I remember telling Sen. Schumer you will regret this. Today he will regret it,” Graham said. “They started this not me. If it were up to me there would be a 60 vote requirement in the Senate today.”
McConnell lowered the vote threshold on Supreme Court nominees in 2017.
Liberal groups have clamored for more of a protest from Democrats for weeks, pushing lawmakers to boycott the hearings altogether. But Senate rules leave very few tools open to the minority to delay proceedings or a vote.
The top Democrat on the Judiciary committee, Sen. Dianne Feinstein, D-Calif., on Thursday defended Democrats’ decision to appear at the hearings which Democrats used, instead, to paint Barrett as a threat to health care, abortion access, voting rights civil liberties and even democracy itself.
“Last week Democrats participated in the nomination hearings because we wanted to show what was at stake for America if Amy Coney Barrett is confirmed we made our case about risks to affordable care,” Feinstein said.
The 87-year-old Feinstein has come under fire from liberal groups last week after she praised Graham for running “one of the best hearings I’ve participated in” and hugged Graham.
The outraged prompted Schumer to tell reporters that he had had a “long serious talk” with Feinstein.
Graham, during the vote on Thursday, called the response to Feinstein a “shame”.
“It’s not enough to agree with the cause you’ve got to hate the people they want you hate,” Graham said.
During her hearing, Barrett dodged repeated attempts by Democrats to get her to commit to recusing herself from election-related matters if the outcome of the 2020 election were to be decided by the Supreme Court, as Trump has predicted.
“Your participation — let me be very blunt — in any case involving Donald Trump’s election would immediately do explosive, enduring harm to the court’s legitimacy and to your own credibility,” Sen. Richard Blumenthal, D-Conn., said to Barrett during her hearings. “You must recuse yourself.”
Barrett said she would “consider it” but pushed back on the insinuation that she might rule favorably for the president merely because he nominated her.
“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people,” Barrett said.
Following Barrett’s committee vote on Thursday, Sen. Patrick Leahy, D-Vt., said that Barrett was signaling favorably to President Trump
“President Trump was listening and he sees this as a green light to do whatever he wants,” Leahy said.
Issues related to the election were front and center for Democrats who fear Trump is looking to secure a justice favorable to him on the court before Nov. 3. They pressed Barrett on simpler questions, like whether the president could unilaterally delay the date of the election — something that, by law, only Congress can do — and whether the president should commit to leave office peacefully, something Trump has appeared to question.
But the judge dodged. As she did throughout her three days before the committee, Barrett said that she could not weigh in on matters that might come before the court. She said she was merely following the “Ginsburg rule,” providing “no hints, no previews, no forecasts,” as the late justice had famously done at her own confirmation hearings in the 1990’s.
Still, this didn’t stop Democrats from pressing Barrett on a slate of liberal priorities, chief among them the fate of the Affordable Care Act.
Committee Democrats repeatedly drilled Barrett on an academic critique Barrett — then a Notre Dame professor — made of Chief Justice Roberts’ decision to uphold the Act in 2012.
“In filling Judge Ginsburg’s seat, the stakes are extraordinarily high for the American people both in the short term and for decades to come,” Sen. Dianne Feinstein, D-Calif., said. “Most importantly, health care coverage, for millions of Americans, is at stake with this nomination.”
But Barrett, sticking to her originalist legal philosophy, said she could only commit to thoroughly reviewing the merits of health care cases that came before her.
“I am not hostile to the ACA,” Barrett repeatedly insisted to lawmakers. “I apply the law, I follow the law. You make the policy.”
Barrett also made waves when she said she did not believe that Roe v. Wade, the landmark case allowing for women to access abortion care, was not so-called “super precedent,” something so established that it would likely never be overturned.
But the judge — over and over — demurred, alarming abortion rights groups.
Asked by Feinstein if she agreed with her mentor, Scalia, that Roe v. Wade was wrongly decided, Barrett wouldn’t show her hand.
“If I express a view on the precedent one way or another, whether I say I love it or hate it, it signals to litigants I might tilt one way or another in a pending case,” she said, while also claiming that she would chart her own course on the highest court, despite her admiration for Scalia.
Republicans used the hearings to champion Barrett, a devout Catholic and mother of seven, as a trailblazer for conservative women and a well-qualified nominee, and repeatedly sought to draw Democrats into a fight about her faith. But Democrats refused.
“To my friends across the aisle, I would say that the American people are no more afraid of the ideas of a Catholic woman than they are of the words splattered on a protest poster being held by a liberal woman,” Sen. Marsha Blackburn, D-Tenn., said.
Republicans looked to dispel concerns about the impact that Barrett’s Catholic faith might have on her ability to rule impartially.
“Can you set aside whatever Catholic beliefs you have regarding any issue before you?” Graham asked.
“I have done that in my time on the 7th Circuit. If I stay there I’ll continue to do that,” Barrett said. “If I’m confirmed to the Supreme Court, I will do that still.”
Thursday’s Judiciary Committee vote will put the Senate on track to confirm Barrett before Election Day, something the Senate majority leader said Republicans have a duty to do.
“We’ve heard Democrats try to take hostage our very institutions of government to stop this precedent-backed process from moving forward, but none of the distortions could even begin to cloud the incredible qualifications of the nominee,” McConnell said. “The full Senate will turn to Judge Barrett’s nomination as soon as it comes out of committee.”