Feinstein wants to derail Amy Coney Barrett’s confirmation. Here’s what she can do
California Sen. Dianne Feinstein probably can’t stop Judge Amy Coney Barrett’s nomination to the Supreme Court, but Democrats expect her to try.
Feinstein’s challenge in the hearings set to begin Monday centers on persuading a few more Republicans to vote against Barrett or at least delay a vote on her nomination. Right now, Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have both said they will not support the vote before the election.
But if those two Republicans and all Senate Democrats vote against Barrett’s confirmation, Democrats would still need two more Republican votes to prevent Barrett from filling the seat vacated by Justice Ruth Bader Ginsburg’s death. Many Senate Republicans at risk in the 2020 election have already said they plan to support Barrett, suggesting she’s on path to join the Supreme Court even if Joe Biden defeats President Donald Trump next month.
Feinstein, as the lead Democrat on the Judiciary Committee, will have to make a case without alienating Republicans over comments about Barrett’s Catholic faith, a problem Feinstein ran into during Barrett’s confirmation hearing to the U.S. Court of Appeals for the Seventh Circuit in 2017.
“The senator plans on focusing on the issues and what’s at stake for millions of American families if this process continues,” Adam Russell, a spokesman for Feinstein, said when McClatchy asked about Feinstein’s plans to navigate the hearings.
A coronavirus outbreak among Republican senators throws a different kind of complication into this week’s hearings. Three Republican senators have tested positive for COVID-19 recently, and two of them are on the Judiciary Committee. But senators are allowed to appear at hearings by video during the pandemic, so those Republicans will still be able to participate.
Coronavirus infections could be problematic for Republicans, however, once they need to start the process to approve Barrett’s confirmation in committee, sending the vote to the full Senate.
‘Dogma lives loudly within you’
Republican groups accused Feinstein and other Democrats of setting up a religious litmus test on Barrett due to one of Feinstein’s comments during Barrett’s last confirmation hearing in 2017.
“Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things,” Feinstein said. “And I think whatever a religion is, it has its own dogma. The law is totally different.”
“And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country,” she continued.
Those comments backfired on Feinstein, both at the time and now. Conservative group Judicial Crisis Network started airing an ad late last month that featured part of Feinstein’s questions, saying: “Democrats and liberal extremists are attacking Amy Coney Barrett for her faith,” and calling it “shameful bigotry.”
“I know a lot of people have encouraged her not to go down that road this time, not just on the right,” Carrie Severino, president of the Judicial Crisis Network, told McClatchy.
Larry Alexander, executive director of the Institute for Religion and Law at the University of San Diego, said he thought it was obvious that Feinstein wasn’t trying to install a religious litmus test with her comments, but rather that she was “concerned” that Barrett “believed the orthodox teachings of the Catholic Church.”
The faith comments were mainly meant to get at how Barrett might decide in a case that could overturn Roe v. Wade, the landmark case law that made abortion legal in the U.S, Alexander said.
“Roe v. Wade, that’s the only thing this is all about,” Alexander said. “So if you want to translate her comments, she’s saying, ‘I know you’re Catholic and you’re against abortion, so are you going to overturn Roe v. Wade?’”
Mike Davis, lead counsel for Republicans on the Judiciary Committee during the confirmation hearings for Justices Brett Kavanaugh and Neil Gorsuch, said he didn’t believe Feinstein would bring up faith again.
“I think she knows she messed up badly by going after Barrett by going after her on her Catholic faith – I seriously doubt you’ll see that again,” said Davis, who is now president Article III Project, which is focused on confirming Republican judges. “I think you’ll see her question Barrett on Obamacare, maybe Roe v. Wade, but she may not be as sure-footed there, due to the comments in 2017.
The problem for Democrats trying to pin down Barrett is that she’s highly unlikely to give any sort of statement on how she would rule on a future abortion case.
That applies to any other cases likely to appear before the Supreme Court. Feinstein put out statements over the past week suggesting Barrett could harm not only abortion access, but also access to health care — since a case challenging the Affordable Care Act goes before the Supreme Court a week after the election — the rights of LGBTQ individuals, voting rights and immigration policy.
“Judge Barrett isn’t going to say, and it isn’t proper for her to say that,” Alexander said. “She hasn’t seen the arguments.”
Republican senators with COVID-19
Sens. Mike Lee of Utah and Thom Tillis of North Carolina, who are both on the Judiciary Committee confirmed they were positive for coronavirus days after a White House event announcing Barrett’s nomination, which health officials are now referring to as a coronavirus “super spreader” event. Neither has indicated publicly that they are experiencing serious symptoms.
One other Republican, Sen. Ron Johnson of Wisconsin, has also tested positive, though he is not on the Judiciary Committee.
Senators can appear at the hearings virtually, via video conference applications such as Zoom, so positive cases will not affect the hearings themselves.
However, Republicans need a majority present in order to schedule the committee vote to approve Barrett and send her nomination to the full Senate for consideration, which is where Republicans having coronavirus could mean Democrats have an opening to delay the vote.
There are 12 Republicans and 10 Democrats on the Senate Judiciary Committee. A majority has to be present to officially consider the nomination. If a Republican is unable to attend and Democrats boycott the hearing, then Republicans won’t be able to officially consider the nomination until 12 members of the committee are present.
Davis, who worked with Feinstein when he worked on the Judiciary Committee, said he doesn’t believe Feinstein would boycott the hearing.
“She has respect for the norms and the process,” Davis said.
That could be a problem for Republicans as Election Day creeps closer. Majority Leader Mitch McConnell, R-Kentucky, has made it clear he wants to hold the vote before Nov. 3, after which Congress will be in a lame duck session. Republicans still control the Senate until January, but the politics of the confirmation process could change after Election Day, throwing even more unknowns into a controversial confirmation process.
“I know Sen. McConnell and (Senate Judiciary Chair) Sen. Lindsay Graham are well aware of the procedural gambits the other side might employ, and they’re ready to handle them,” Severino said.
Republicans need to have their numbers in place at the committee on Oct. 15 to prevent a delay. Johnson, who isn’t on the committee, has said he plans to come to the Senate in a “moon suit” if he’s still contagious when the full Senate is scheduled to vote on Barrett.
This story was originally published October 12, 2020 at 5:00 AM.
.jpg)