Senate Democrats handled Barrett cautiously, prompting some activists to fume over Feinstein
Posted October 15, 2020 6:21 p.m. EDT
CNN — Democratic senators recognized early on that there was little they could do to stop Republicans from rushing to confirm Supreme Court nominee Amy Coney Barrett.
So this week, they spent her hearings with an eye on Election Day, opting to avoid overly aggressive exchanges that could hurt their candidates, and cautioning over and over again that Barrett could undermine the Affordable Care Act, inserting their most potent political issue -- health care -- into the fight.
But in the end, Democrats offered a mixed message over the process, with some top senators praising the handling of the hearings at the same time as characterizing it as a "sham." Four days of hearings culminated with the Senate Judiciary Committee's top Democrat, Dianne Feinstein, gushing over Chairman Lindsey Graham's "fairness" in the hearings.
After the hearings concluded, Feinstein told Graham, who is in a tough race against Democrat Jaime Harrison, "This is one of the best set of hearings that I've participated in," and hugged him.
Some on the left were apoplectic about her approach over the four days.
"It's time for Sen. Feinstein to step down from her leadership position on the Senate Judiciary Committee," said Brian Fallon, a former top aide to Senate Minority Leader Chuck Schumer who now runs the liberal group Demand Justice, which has spent hundreds of thousands on TV ads opposing the Barrett nomination. "If she won't, her colleagues need to intervene."
Feinstein, 87, and a Judiciary Committee member for about a quarter century, has faced increased criticism from liberal activists, and questions from some of her allies about her ability to serve as the top committee member.
Democrats on the committee have mostly supported her remaining in the post, given her respected and influential tenure in the body. And at the hearing, she did offer pointed criticisms at Republicans over the expedited timeframe -- and challenged Barrett to explain her views on abortion rights, gun control and health care, among other issues. Yet, she repeatedly praised Barrett and her family, prompting some Democratic concerns that she was painting a nominee who could shift the court markedly to the right in a favorable light.
The issue will likely continue to fester if Democrats retake the majority and the chairmanship of the committee is at stake.
Asked for comment, a Feinstein spokesman referred questions to a statement the senator issued Thursday evening saying she would vote against the Barrett nomination and arguing that the Democrats accomplished their "one goal" to show what a 6-3 conservative Supreme Court could mean for health care and abortion rights.
"The Senate is structured so the majority had absolute control over this process," Feinstein said. "When Republicans signaled they'd move ahead in the face of all objections, the only thing we could do was show this nominee would radically alter the court, and we accomplished that."
Yet Democrats defended their strategy and said their cautious tactic this week was deliberate. They were eager to avoid giving Republicans any additional ammunition in the final stretch of a campaign that polls show favors them winning both the White House and even the Senate.
In the end, Democrats argued, they made their case effectively.
"I think we raised all of the tough issues, and we raised them in a pretty hard-hitting way, but we didn't shout and pound the table," said Connecticut Democratic Sen. Richard Blumenthal. "What's the point?"
Their strategy, they said, was to make the deliberations less about Barrett's character or religion -- and more about the issues at stake with her confirmation that may resonate with voters.
Democratic Sen. Dick Durbin of Illinois, who also rankled activists by praising Graham for his "fairness," said this week that the nomination was not just about Barrett, but "about the Affordable Care Act, and whether it's going to be there when Americans desperately need it in the midst of a pandemic."
"I think that's why the Supreme Court nomination is different than any in history," he added. "I believe the American people are starting to feel the same."
Republicans responded by reminding voters of the flaws of that 2010 law, blaming it for higher insurance premiums, and warning that Democrats want to pass single-payer health care.
But they recognized that they were playing defense. Graham, who is in the toughest reelection race of his career, told Barrett at one point that the hearings had been "more about Obamacare than it has you."
Barrett declined to say how she would vote on particular cases, citing a precedent by her potential predecessor, the late Justice Ruth Bader Ginsburg, to give "no hints, no previews, no forecasts" to the committee. But Democrats repeatedly pressed her to share her views — on health care, voting rights, climate change, abortion, gun control, the election and more — to paint her as someone who was unwilling to provide her thoughts on critical issues.
Barrett declined to answer many of their questions.
New Jersey Democratic Sen. Cory Booker asked on Tuesday whether every president should commit to the peaceful transfer of power. Barrett initially replied that the senator was trying to draw her into a political dispute between the President and his opponents. After he pressed, she touted the country's nonviolent practice of electing its leaders.
Democrats were keenly aware of the optics, and largely avoided interrupting Barrett or talking over her, a common occurrence in high-profile hearings. Not long after GOP Sen. Joni Ernst of Iowa charged that members had been disrespectful on Wednesday, Booker interrupted Barrett, and then asked her to forgive him. Barrett said it was fine and Booker joked that he's learning from Ernst how to be "Iowa nice." Barrett laughed.
It was a far cry from the emotionally charged battle over Brett Kavanaugh's nomination to the court, after he fended off allegations of sexual assault in intense hearings just weeks before the 2018 midterms. The end result, some Democrats say, made reelection for Democratic senators in red states much harder.
It's unclear whether Barrett's nomination will help Republican or Democratic Senate candidates. But ActBlue, the online portal for Democratic candidates, reported that it raised $70.6 million on September 19, the day after Ginsburg's death, breaking its single-day record.
Republican strategists, however, claim that the fight over the nomination will help their party overcome the drag from the top of the ticket.
Whit Ayres, a Republican pollster, recently told CNN that Barrett is "an extraordinarily impressive woman who, if she has any political impact, will help Republicans in close races."
"We know it's entirely possible for Republican senators running for reelection to run ahead of the President," said Ayres. "The question is, 'how far ahead of the President can they run?'"
Republicans like Missouri Sen. Josh Hawley sought to portray Democrats as anti-Catholic, after her faith became a flashpoint in her 2017 confirmation proceedings for her current position on the 7th US Circuit Court of Appeals. "The dogma lives loudly within you," said Feinstein back then.
But Democrats declined to discuss her religion in that manner this week.
"We made a point of not asking about religion," Blumenthal said. "I think we focused on the issues -- not on theatrics."
Vulnerable Republican senators on the committee took their time defending themselves from Democratic attacks on health care.
North Carolina Republican Sen. Thom Tillis charged that the left's Medicare-for-all proposal "could be Medicare for none." Ernst ticked off provisions of a recent Senate Republican bill addressing the pandemic, including relief for the unemployed, small businesses and schools. Graham seemed to suggest that Barrett would vote to uphold the ACA in an upcoming case because of a judicial principle known as severability.
There's evidence to suggest that Donald Trump won the 2016 presidential election in part due to his pledge to fill the seat left by the late Justice Antonin Scalia, which remained vacant because Senate Majority Leader Mitch McConnell and Republicans blocked President Barack Obama's nominee, Judge Merrick Garland. Their argument at the time was that it was an election year, and the next president should decide the Supreme Court nominee.
But Ilyse Hogue, president of the abortion rights group NARAL, told CNN that Democrats took control of the issue in the 2018 midterm elections, after Republicans blocked Garland and Trump nominated Kavanaugh to fill the seat left by the retiring Justice Anthony Kennedy, a conservative who still voted to uphold abortion rights.
Hogue said that Democrats realized "we better actually start to focus on the court because it's being stolen from us."
Republicans and Democrats believe that Barrett, a Notre Dame law professor, will give conservatives a 6-3 majority on the Supreme Court, influencing a wide array of issues involving the day-to-day lives of Americans.
Republicans blocked a motion from Democrats to indefinitely postpone the proceedings on Thursday, dismissing their charges of hypocrisy and concerns that millions of Americans were already voting for president. McConnell said Republicans planned to confirm Barrett by the end of the month. "We have the votes," he said.
The Senate has taken half the average time to consider her nomination. If confirmed, and able to serve as long as Ginsburg, the 48-year-old Barrett will sit on the court for nearly four decades.