On Thursday, the Senate Judiciary Committee completed its confirmation hearings for Amy Coney Barrett. Some, including myself, worried prior to the hearing that Democrats’ participation might normalize the nakedly corrupt power grab by which Republicans were solidifying a 6–3 Supreme Court majority for at least a decade, if not longer.
There was some hope, though, that if Democrats, led by ranking committee member Sen. Dianne Feinstein, were going to participate (which, let’s face it, they always were), they could at least forcefully challenge Barrett’s threats to long-standing constitutional rights, fight Republicans tooth and nail on questions of procedure, and lay bare the rushed, sham process that goes against what Republicans promised the American people just four years ago for what it is.
How did that go?
Well, let’s check in on how Feinstein ended the hearings:
“This has been one of the best set of hearings that I’ve participated in,” Feinstein told committee Chairman Lindsey Graham, who was instrumental in orchestrating this hearing, reversing his promise of four years ago not to hold a confirmation hearing in the final year of Trump’s term. Graham also participated in the monthslong blockade of Judge Merrick Garland, allowing the GOP to effectively steal the seat Barack Obama should have filled in the final year of his presidency. And, for this hearing, Graham refused to require that all participants be tested for COVID-19 in advance, despite the fact that Barrett’s nomination celebration, a superspreader event, had likely resulted in the infection of two GOP senators who sit on the judiciary committee, and indeed participated in the hearings in person, delivering their remarks without masks. Graham personally refused to be tested himself, despite exposure to infected individuals. “Thank you so much for your leadership,” she added.
Here’s what happened after Feinstein made her speech thanking Graham:
Oh, good! That is a photo of the 87-year-old leader of the Democrats in arguably the Senate’s most important committee hugging the man responsible for this travesty of a hearing, who, again, has refused to get tested for COVID-19, presumably because he was concerned that a positive test might derail this unprecedented coup. No one is supposed to be hugging anyone outside of their family right now, never mind hugging a possible vector when you are in a high-risk category for a deadly virus while neither party wears a mask. But for old Lindsey Graham, sure, a maskless hug was apparently in order—he did such a good job with the hearings, after all.
For her part, Feinstein had already taken a lot of heat ahead of the hearings. When Barrett was being vetted for her current seat, on the 7th U.S. Circuit Court of Appeals, the senator made derogatory comments about Barrett’s religion, which the GOP has focused on relentlessly. She’s also still recovering from criticism of her handling of the Christine Blasey Ford allegations during Justice Brett Kavanaugh’s confirmation hearing—she waited until the last-possible moment to make them public. All of this made Democrats nervous going into these extremely consequential and high-stakes few days, but during this hearing, she managed to steer clear of landmines and acquitted herself fine, insofar as she didn’t openly insult the nominee personally, or publicly praise Barrett’s singular judicial genius.
Feinstein was only able to maintain that standard of not totally tanking the proceedings for Democrats for three days, though, before things came unglued Thursday afternoon. Prior to Feinstein’s comity performance and the pandemic hug with he who won’t be tested, the hearings opened with a lukewarm statement by the California Democrat, who said that in her years on the committee she “has really come to value the hearings.” It was strange thing to say after this particular set—Barrett refused to substantively answer a single question any of the Democratic members tried to ask her. Feinstein went on to note that “I really don’t understand” why the nomination was being rushed through. The reason why it’s being rushed through is that Republicans need to do to this now in case the polls are correct and they lose an election in a landslide in less than three weeks’ time, something anyone paying attention could tell you, but certainly something the ranking Democrat on the judiciary committee ought to realize. Oh, and between the meek opening statement and the maskless hug, Feinstein again opened herself up to (potentially bad-faith) criticism for attacking Barrett’s religion when she was caught on a live mic saying that she thought Barrett’s opposition to abortion rights was sincere because it “comes with” her Catholic religion.
Feinstein also said that “the etiquette of the committee” and “everything that we have held dear and the processes that we have moved forward with” will be breached if Republicans move forward with seating Barrett. “I very much hope that this does not happen,” she concluded, hitting a note of aspiration. This gentle appeal toward norms is of course done in vain. As Senate Majority Leader Mitch McConnell said again on Thursday: It is happening.
Maybe none of this will matter and the Democratic strategy of surrendering this fight in order to preserve a possible advantage in this year’s Senate races will be proven correct in less than three weeks’ time. Maybe Democrats will then garner the votes and the will to do what is going to be necessary to preserve democracy from a court hellbent on demolishing the right to vote, along with the right to an abortion and any and all progressive legislation that might reach its doorstep.
Then again, support for Barrett’s confirmation appears to have risen steadily this week. A New York Times–Siena poll released on Thursday, meanwhile, showed Graham with a firm 6-point lead over Democratic challenger Jaime Harrison in what was thought to be a tight South Carolina race that might decide the fate of the Senate.
If the strategy does ultimately prove successful in spite of the calamity the week seems to have been, my colleague Mark Joseph Stern has smartly suggested that it would be advisable for Joe Biden to appoint Feinstein to any ambassadorship, administration position, or whatever job she might possibly want to finally get her off of her perch on the most important committee in Congress. She had a close relationship with French leadership in the early 1980s, and soon after Inauguration Day is a lovely time of year in Paris, for instance. But really, anything but the head of the judiciary committee, where she repeatedly failed to meet the moment, will do.