October 22, 2020

Democrats Boycott Committee Vote on Barrett With Election Days Away

Senate Democrats boycotted the vote to advance Judge Amy Coney Barrett’s nomination for a lifetime seat on the Supreme Court to the full Senate on Thursday, saying they will not give the process “further legitimacy� less than two weeks out from a presidential election that is already underway.

by Megan Mineiro
CourtHouseNews.com

Still, Graham argued that it was in 2013 that the judicial nomination process took a “dark turn.� That year, he said, Senate Democrats seeking to pack the D.C. Circuit with Obama-appointed judges changed the rules so that only a simple majority vote was needed for district and circuit court nominees.

“What the hell happened?" Graham asked Thursday, saying Democrats injured precedent beginning with Supreme Court nominee Robert Bork in 1987 and continuing with Justices Clarence Thomas and Samuel Alito. "It crescendoed with Kavanugh,� Graham added.

But it was Republicans who reached for the so-called nuclear option four years ago in response to a Democratic filibusterer of then-Judge Neil Gorsuch’s nomination to the Supreme Court, changing the Senate rules to end the floor debate with a simple majority vote and then confirm the nominee.

Graham similarly ignored committee tradition last week when Democrats sought to delay the procedural vote to schedule Thursday’s vote.

The move wasn’t entirely unprecedented, Graham’s spokeswoman indicated Wednesday night, saying on seven occasions since 2006 the committee has conducted business and held over judicial nominees with only a majority of senators in the room, rather than a minimum of two members of the minority present. But the high-profile panel has never voted a Supreme Court nominee to the floor without a quorum present.

Democrats’ refusal to cast their "nay" votes does a disservice to Barrett, Graham said, praising President Donald Trump’s pick as “one of the most highly qualified people to ever be nominated� to the high court.

Barrett has spent the last three years as a Seventh Circuit judge, with 15 years before that in academia, mostly at her alma mater, Notre Dame Law School.

Republicans criticized their Democratic colleagues for not showing up Thursday, arguing the minority had abandoned their post.

"Rather than show up and do their job, they choose to continue the theater that was part of the hearing,� Republican Senator John Cornyn said.

Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said her party’s members participated in last week’s hearing to make the case for why Barrett poses a risk to affordable health care, reproductive rights and voter discrimination.

But the 10 Democrats did not have the votes to defeat Barrett’s nomination — backed by 12 Senate Judiciary Republicans — before she heads to the GOP-controlled Senate to be confirmed.

“At that point, there was no further reason to participate in a committee process that has been used to rush this nominee forward,� Feinstein said alongside her fellow Democrats outside the Capitol.

They have for weeks warned voters that Trump tapped Barrett for the vacant seat following the death of Justice Ruth Bader Ginsburg to overturn the federal health care law and lock in a Supreme Court victory with a 6-3 conservative majority in the event of a contested election.

The justices are set to hear oral arguments on the Affordable Care Act on Nov. 10 — just one week after Election Day — in a challenge backedby Trump’s Justice Department and attorneys general from red states.

“What Republicans and the far right cannot accomplish through the legislature, they're trying to accomplish through the judiciary,� Schumer said Thursday.

Senator Dick Durbin called out Barrett for repeatedly evading Democrats’ questions during her confirmation hearing last week.

“She didn't have the courage to stand up to President Trump and say she would not be a lackey of his when it came to an election contest,� Durbin, an Illinois senator and the minority whip, said Thursday.

Conservatives are warning that if Democrats retake control of the Senate in November, they will pack the court by increasing the number of justices — an option available to lawmakers with the traditional nine not cemented in the Constitution. Schumer, meanwhile, has said that “everything is on the table.�

Barrett last week denied that she had an agenda that lines up with Trump’s political playbook.

“I have had no conversation with the president or any of his staff on how I might rule in that case,� she said during her confirmation hearing. “It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how I would rule.�

Whether Barrett plans to dismantle the Affordable Care Act or not, Democrats argue, the president has openly said he will only appoint Supreme Court justices committed to overturning so-called Obamacare and the landmark abortion case Roe v. Wade.

As for the election, Senator Patrick Leahy of Vermont called out Barrett’s refusal to recuse herself from potential election disputes and to affirm the Constitution requires a peaceful transfer of power.

“Make no mistake — President Trump was listening and he sees this as a green light to do whatever he wants,� Leahy said Thursday.

Senate Majority Leader Mitch McConnell has set the full Senate vote to confirm “justice-to-be Barrett� on Monday. Senators will first hold a procedural vote Friday, before beginning debate that could last up to 30 hours.

If all plays out as McConnell hopes, the judicial victory will be the closest to an election that a Supreme Court nominee has ever been confirmed. While other nominees have plowed through the confirmation process faster, no justice has ever secured a seat so close to Election Day.

The GOP holds 53 Senate seats, leaving room for three Republicans to jump party lines and Vice President Mike Pence to still break the tie. It would be another play for the history books, marking the first time a vice president has cast the deciding vote to confirm a justice.

Democrats say the breakneck pace is a 180-reversal on Republicans blocking President Barack Obama’s Supreme Court nominee Merrick Garland for eight months.

In 2016, the GOP called for voters to decide the next president to fill the vacant lifetime seat, a stance they say doesn’t apply in 2020 because they hold the Senate and White House.

But Feinstein on Thursday, noting the election is just 12 days out, quoted McConnell saying four years ago: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until e have a new president.�

McConnell nevertheless buckled down Thursday. Not since 1888, he said from the Senate floor, has the Senate filled a Supreme Court vacancy arising in an election year when there was a divided government.

Rebuking Democrats for considering court packing, he said: “The American people know these threats are anathema to the rule of law.�

Just 3% of Americans hold no opinion on whether Republicans should be racing forward with Barrett’s nomination, a Gallup poll begun on Sept. 30 and released Tuesday found. That’s starkly lower than any pat battles to seat a Supreme Court justice — including Gorsuch and fellow Trump nominee Brett Kavanaugh — with an average 25% of Americans having no opinion on a nominee dating back to 1987.

With a slight lead, 51% of Americans backed Barrett’s rise to the bench, while 46% opposed the nomination, but both readings are higher than public opinions for and against any prior nominee.

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