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Amid the Barrett Hearing Choreography, a Near-Certain Outcome: Confirmation

WASHINGTON — The outcome of the Senate struggle over President Trump’s high court nominee was evident from the moment Senator Lindsey Graham convened the proceedings by announcing that “the hearing to confirm Judge Amy Barrett to the Supreme Court will now begin.”

He could have said, as is more customary, that the Judiciary Committee hearing to consider her nomination was starting. But Mr. Graham was more truthful in saying what he did. Judge Barrett’s confirmation has always been the virtually certain result of the hearing and the coming Senate vote just days before Election Day, and that was more apparent than ever on Tuesday as senators questioned her

With the hearing taking place closer to an election than any other Supreme Court confirmation — and with the Senate Republican majority at real risk — the proceeding was imbued with electoral politics perhaps to a greater degree than any previous one. Most times, it appeared to be less about Judge Barrett than about the differences between the two parties as they headed to Nov. 3 with Democrats and Republicans dueling over their competing ideologies. Senator Kamala Harris of California, the Democratic vice-presidential candidate, used much of her allotted time to discuss the reach of the Affordable Care Act before even posing a question.

After spending four years gleefully muscling more than 200 conservative judges through the Senate, Republicans were not about to be deterred from cementing a 6-to-3 conservative majority on the Supreme Court for years to come by either the calendar, pandemic health risks, cries of hypocrisy or the prospect of losing their majority — and certainly not by Democrats.

“I think I know how the vote is going to come out,” said Mr. Graham, the South Carolina Republican whose own long congressional career is on the line in an election to be conducted exactly three weeks from Tuesday.

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transcript

Highlights From Day 2 of Judge Amy Coney Barrett’s Hearing

On Tuesday, senators began their questioning of Judge Amy Coney Barrett during her Supreme Court confirmation hearing.

“Can you hold up what you’ve been referring to in answering our questions? Is there anything on it?” “That letterhead that says United States Senate.” “In English? OK, so in English that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it. But I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett.” “Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing: no hints, no previews, no forecasts. That had been the practice of nominees before her. But everybody calls it the ‘Ginsburg Rule’ because she stated it so concisely, and it’s been the practice of every nominee since.” “Do you agree that I.V.F. is tantamount to manslaughter?” “Senator, the statement that I signed, as you said, simply said, we — I signed it on the way out of church. It was consistent with the views of my church. And it simply said, we support the right to life from conception to natural death. It took no position on I.V.F. So really, the issue in the case is this doctrine of severability and that’s not something that I’ve ever talked about with respect to the Affordable Care Act. Honestly, I haven’t written anything about severability that I know of at all. My children to this point in their lives have had the benefit of growing up in a cocoon, where they have not yet experienced hatred or violence. Giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge. I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. You know, like racism, I think discrimination is abhorrent. On the questions of law, however, I just — because I’m a sitting judge and because you can’t answer questions without going through the judicial process — can’t give answers to those very specific questions.” “Given what President Trump said, given the rushed context of this confirmation, will you commit to recusing yourself from any case arising from a dispute in the presidential election results three weeks from now?” “I would consider it — let’s see, 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. So that would be on the question of actual bias, and you asked about the appearance of bias.”

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On Tuesday, senators began their questioning of Judge Amy Coney Barrett during her Supreme Court confirmation hearing.CreditCredit…Erin Schaff/The New York Times

Everyone else figured they knew the vote count as well, despite the theater of one of the Senate’s grandest set pieces, a full-blown Supreme Court confirmation proceeding. But with the court increasingly an arbiter of the nation’s divisive political disputes, the hearings have become highly choreographed affairs, with the party out of power at the White House trying in vain to nail down nominees of the president’s party on what they will do on certain hot-button cases of abortion rights, health care, the Second Amendment, gay rights and more.

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This one was no exception. Democrats unsuccessfully pressed Judge Barrett on where she would come down on those issues and she respectfully demurred, as nominees beginning with Ruth Bader Ginsburg in 1993 have done, saying that giving any hint of her views would violate judicial canons, demonstrate bias and in effect just make her another Washington talking head. She would have to weigh the issues, she said, and put them through the judicial wringer before deciding.

“If I give off-the-cuff answers, I would basically be a legal pundit,” Judge Barrett said. “And I don’t think we want judges to be legal pundits.”

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Credit…Erin Schaff/The New York Times

As a result, the best Democrats could do was raise the possibility of Judge Barrett posing a serious threat to access to abortion, gay marriage and gun restrictions but most important health care by overturning the Affordable Care Act. Health care was a winning issue for the party in 2018, and Democrats hope it is again this year. And that seemed to be the point.

Mr. Graham, evidently worried that Democrats had scored too many political points on health care on Monday, opened Tuesday’s hearing with a defense of his party’s position on how best to provide health care — not usually the substance of confirmation hearings — that could have doubled as a campaign speech in his home state, where he is facing a tougher-than-expected challenge.

Republicans bristled at regular Democratic insinuations that Judge Barrett was a weaponized nominee being rushed onto the court to take part in deliberations over the health care law one week after the election so she could provide the deciding vote to undo it, realizing the promise that President Trump and congressional Republicans have repeatedly made.

“I would just say that all of these predictions about how judges under our independent judiciary will make decisions are just pure speculation,” said Senator John Cornyn of Texas, another Republican on the ballot this year. “But I think they are worse than speculation. I think they’re propaganda in order to try to make a political point.”

Republicans repeatedly sought to draw out that Judge Barrett had not been asked by Mr. Trump or anyone else about how she would rule on any matter, nor had she made any promises to decide one way or another — though no one would presumably be ill-advised enough to do such a thing in the highly scrutinized environment surrounding Supreme Court confirmations.

“I’m not willing to make a deal,” said Judge Barrett, who described herself as 100 percent against political interference in judicial matters. “Not with the committee, not with the president, not with anyone. I’m independent.”

Credit…Erin Schaff/The New York Times

Though mostly unflappable through the marathon day of questioning, Judge Barrett took umbrage at Democrats’ suggestions to the contrary.

“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,” she said.

Democrats were not convinced. They said Republicans did not have to ask Judge Barrett how she would rule because they were confident they knew given her background, record, writings and strong support from the conservative community. Senator Josh Hawley, Republican of Missouri and a member of the committee, had said he would not support any nominee unless he was confident they believed the abortion rights case Roe v. Wade was improperly decided, and on Tuesday he appeared all but certain to support Judge Barrett.

“I’ve been so impressed with your answers today,” Mr. Hawley told her. “It’s really quite extraordinary.”

Democrats pointed to the president’s own comments that he wanted to appoint judges who would overturn Roe v. Wade, find the Affordable Care Act unconstitutional — and possibly even decide a contested election in his favor.

“This notion that this whole idea of your being used for political purposes is a Democratic creation — read the tweets and you have plenty to work with,” said Senator Richard J. Durbin, Democrat of Illinois. “Read the tweets.”

“What the president wants here couldn’t be clearer,” said Senator Chris Coons, Democrat of Delaware.

Judge Barrett did little to assuage their concerns. She refused multiple times to say Roe v. Wade was established law that could not be overturned. She said she was not “hostile” to the health care law, but could not indicate how she would rule. She would not say whether she believed the president had the constitutional power to postpone the election. She promised to consider a recusal if an election dispute arose, but would not commit to doing so. “I do assure you of my integrity,” she said.

It wasn’t enough.

“I am then left with looking at the tracks of your record and where it leads the American people,” Senator Amy Klobuchar, Democrat of Minnesota, said as she weighed the judge’s responses. “And I think it leads us to a place that’s going to have severe repercussions for them.”

Still, Democrats were left with little recourse to derail a nomination that appears headed for quick approval without some major turn of events or a worsening of the spread of the coronavirus that temporarily sidelined some senators.

As their emphasis on health care demonstrated, Democrats were hoping the confirmation would help them seize control of the Senate next month. But that outcome, if it materializes, may only serve as a consolation for an expanded and entrenched conservative majority on the court.

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