Jurisprudence

Five Things Democrats Definitely Should Not Do in the Barrett Hearings

Which terrible strategy is the least terrible?

Amy Coney Barrett
Judge Amy Coney Barrett is seen on Capitol Hill on Oct. 1. Erin Scott/Pool/Getty Images.

On Monday, the Senate Judiciary Committee will begin four days of hearings on the nomination of Judge Amy Coney Barrett to the Supreme Court.

The confirmation of a Supreme Court justice after people have already begun voting in a presidential election is unprecedented. It goes against the standard Republicans set when they blocked President Barack Obama’s nomination of Merrick Garland in 2016, and also insults the dying wishes of the iconic progressive jurist whom Barrett expects to replace. It will also be the first time in history that an impeached president nominates a justice to the court. Oh, and multiple Republican senators are now sick with COVID-19 after attending Barrett’s superspreader nomination announcement at the White House last month. Still, Republicans are committed to pushing Barrett’s nomination through as quickly as possible, at all costs.

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Democrats, meanwhile, have decided to treat this nomination as … business as usual!

While some members initially suggested they would refuse to meet any nominee who would take part in such a blatant corruption of the court, on Wednesday the White House boasted that seven Democratic members of the Senate Judiciary Committee had acquiesced and spoken with Barrett on the phone. “It’s true that some of us have decided to speak by telephone to the nominee, and others don’t want to do that for their own reasons,” Sen. Dick Durbin told reporters on Friday explaining his decision to speak with Barrett. “I personally have met face-to-face with every single Supreme Court nominee since I’ve been a senator. It doesn’t mean I’m going to support her or think the process is legitimate. I just believe that from my point of view it’s something I’ve done.” Read: business as usual!

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If Democrats’ goal is to prevent decades of far-right judicial dominion, gifting the nomination this air of legitimacy was an unforced error. It was also a sign that Democrats may well botch the confirmation process. So far, Senate Democrats seem to be taking the same barely coordinated and scattershot approach that they’ve taken into the last two Supreme Court confirmation fights. While it’s true that there is very little Democrats can actually do to try to block the nomination given their Senate minority, the hearings provide an opportunity to present a united and coordinated front to demonstrate the illegitimacy and stakes of this nomination. Ultimately, though, Democrats have a number of very bad options for how to treat this process, and it’s very hard to say which is least bad. But there are some things that they absolutely should not do in the week of hearings ahead:

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Do not focus on Barrett’s religion, but also, don’t ignore it. During Barrett’s confirmation for the 7th U.S. Circuit Court of Appeals, ranking minority member Sen. Dianne Feinstein made the foolish mistake of attacking Barrett’s Catholic faith, saying, “the dogma lives loudly within you.” Committee Democrats, such as Sens. Chris Coons and Richard Blumenthal, have already said that they don’t think it’s “appropriate” to discuss religion.

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The thing is: Democrats will have to find a way to address religion because Barrett herself has made her faith an issue in her nomination. She neglected to include in the packet of materials she submitted to the committee a public letter she signed that declared “It’s time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” Further, she has written that devout Catholic jurists should recuse themselves in certain circumstances, such as in death penalty cases. Republicans are also certain to claim anti-religious bias no matter what Democrats actually do—indeed, they already have. Given all of this, Democrats will have to address this topic somehow. Pointing to Barrett’s past writings is their best option.

Do not do a partial boycott. There was talk of boycotting the hearings for Justice Ruth Bader Ginsburg’s replacement after she died, but Democrats quickly backed away from activists’ calls to consider that option. The committee member most amenable to the possibility of a boycott was Sen. Mazie Hirono of Hawaii. It’s certainly still plausible that Hirono might decide to walk out of the hearing as a gesture toward its illegitimacy. A walkout will not be effective if she is left to do this alone, though. Now that Democrats have decided to use their time with Barrett to focus the proceedings on the immediate threat she and a hard-right court will pose to the health care of millions of Americans, they must be united in that plan. If they modify it midway through—say, by deciding to walk out of the hearings—they must do so as a group united. Any partial boycott will spark the backlash Democrats fear—Republicans will attack it as a disrespectful stunt—with little actual upside. Even one Democratic senator treating the hearings as legitimate will give it the semblance of legitimacy.

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Do not do any other pointless stunts or play any pointless procedural games. My favorite idea for how Democrats might treat this hearing came from my Slate colleague Jim Newell, who suggested that Democrats acknowledge the outright farce the hearings present by playing Mario Kart on a projector while the nominee gives her opening remarks. As edifying as that might be for me personally, Democrats should probably not do this. Republicans are eager to turn Barrett into some kind of victim of an overly polarized confirmation process. Treating her with even a hint of rudeness—or even making an innocent joke that might be easily misconstrued—will be treated by the GOP as the greatest insult ever given to anyone in the history of American politics.

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Democrats shouldn’t even bother with some of the procedural stunts they’ve used in the past. As one example, when the White House covered up 100,000 documents from Brett Kavanaugh’s time working in the George W. Bush administration, Sen. Cory Booker declared he was having an “I am Spartacus” moment by violating committee rules and releasing some committee-confidential documents about Kavanaugh. Unfortunately, nobody cared about this procedural “Spartacus” stunt from Booker. Trying anything like that with Barrett will only emphasize that Democrats are not equipped to challenge the historical illegitimacy of this nomination, and demonstrate that the best they can do is offer meek procedural games that, at best, make them look weak and, at worst, might make Barrett into a martyr. If they do go for a viral moment, they should maybe ask Rep. Katie Porter for help in setting it up.

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Do not treat this like the Kavanaugh hearing. Christine Blasey Ford deserved to tell her story and the country deserved to have a full investigation of her allegation that Kavanaugh sexually assaulted her in high school. But that 2018 hearing where she and Kavanaugh testified is widely viewed now as a political disaster for Democrats. The tilted nature of the Senate map—which gives Republicans an enormous built-in structural advantage—meant that in a historically strong midterm year for Democrats in 2018, they actually lost seats in the Senate. The exit polling indicated that the perceived martyrdom of Kavanaugh in those hearings may have boosted the standing of multiple Republican Senate candidates in the final weeks of the campaign. Democrats lost the opportunity to retain or win seats in North Dakota, Texas, Indiana, Florida, and Missouri. In all of those races, sizable majorities of those who viewed the Kavanaugh confirmation as a top issue voted for the Republicans. Sen. Joe Manchin, who held onto his seat, was the only Democrat in a close race to have the support of voters who viewed the Kavanaugh hearings as a top issue—Manchin, of course, voted for Kavanaugh’s ascension. Anything that turns the Barrett hearings into a similar type of circus by going after Barrett personally in any way might only serve to rally vulnerable Republican senators just as Democrats are on the cusp of winning back the body.

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Do not treat this like a normal hearing. Ultimately, Democrats seem to be choosing the path of least resistance. It is also a terrible option. As Lawfare’s Susan Hennessey put it on Thursday, the party appears to be responding to an unprecedented “11th hour power grab” that will define the Supreme Court for generations with “some scattered messaging on Roe.” Hennessey summed it up perfectly: “Good grief!”

Democrats have done virtually nothing to set up the illegitimacy of this nomination, never mind explain the stakes, which are undeniably high—a 6–3 hard-right court set to overturn Roe v. Wade, voting rights laws, and anything a Democratic majority attempts to do for decades to come. The decision to take Barrett’s call needlessly helped her and the Republicans use those Democrats’ reputations to launder her own. It signaled that this is just another Supreme Court confirmation fight, that there’s nothing more to see here. Along these same lines, as they’ve done in the past, Democrats have released typical 20-page position papers (with more than 100 endnotes) critiquing special interest influence of the courts, along with the scattered press statements about gun control, or abortion, or health care—apparently pinning their hopes on Americans’ ability and patience to absorb technical policy briefs. This is another recipe for disaster.

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So, what can they do? First off, they need to narrow and coordinate their efforts. To their credit, the area Democrats have said they intend to focus their questioning on the most—health care—is potentially the most resonant one. In recent polling, 57 percent of Americans say they support—and just 36 percent say they oppose—the health care law Barrett might strike down as one of her first votes on the court. She is unlikely to answer questions about this topic, but repeatedly forcing her to at least face those questions is the most plausible path to demonstrating the damage she might do if she joins four conservatives in striking down the Affordable Care Act. Still, their rhetoric on these issues to date have been far from inspiring. “This is ultimately a question of whether or not Republican senators are going to vote for a judge who has indicated that she will not be for the guarantee of protections for preexisting conditions, and that is why we oppose this nominee,” Sen. Ron Wyden said on a press call Friday. Barrett and Senate Republicans are surely shaking in her boots at the prospect of that sort of tongue-lashing.

Democrats are taking their best worst shot, it seems. If they can focus their questioning as a united group on a small number of very specific areas—health care, Roe v. Wade, and perhaps voting rights and the president’s efforts to threaten the legitimacy of the coming election—maybe they can come out of the hearings in a stronger position to win back the Senate with enough seats to potentially reform the court so as to make Barrett’s elevation less of the potential death blow to majoritarian governance that it appears to be. Out of all their terrible options, this may be the best possible outcome they can hope to achieve.

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