With Election Day just weeks away, a bitterly divided Senate on Monday will launch the confirmation hearing of Judge Amy Coney Barrett, President Donald Trump's choice to fill the seat of the late liberal icon, Justice Ruth Bader Ginsburg.
It could be a firestorm as Republicans push forward with almost unprecedented speed and Democrats look for ways to draw out the process for the lifetime appointment. Meanwhile, across the street at the Supreme Court, the remaining eight justices, who have just begun a new term, find themselves, and the court, once again in an unwelcome political spotlight.
The hearings will serve as a touchstone for the bases of both parties, highlighting the potential of a hard-right turn that could last for decades in areas such as abortion, religious liberty, LGBTQ rights and the Second Amendment, distracting voters from the realities of Covid-19 and leaving liberals to contemplate new tools, including adding seats to the Supreme Court, to staunch their wounds.
Senate Judiciary Chairman Lindsey Graham will break from his own tight reelection race to gavel in the proceedings at 9 a.m. ET on Monday. Each member will give opening statements for 10 minutes -- although some senators, including those who have been diagnosed with coronavirus, have the option to participate remotely. And Barrett, who sat through contentious hearings just three years ago for her seat on the 7th Circuit Court of Appeals, will give her opening statement at the end of the first day.
"The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People," she is expected to tell the senators, according to her planned written remarks. Her straightforward statement reflects a conservative legal philosophy shared by her mentor, the late Justice Antonin Scalia, and others who believe that courts can't sweep in to solve all of society's woes. She makes clear that she believes some issues are better handled by the political branches, which mirrors what conservative justices said in dissent when the high court cleared the way for same-sex marriage nationwide in 2015.
Nodding to the divisive Kavanaugh hearings, Barrett will admit to some trepidation about accepting the nomination. "The confirmation process -- and the work of serving on the Court if I am confirmed -- requires sacrifices, particularly from my family," the mother of seven says.
But she also points out in the statement that she would bring diversity to the court, in part because every current justice attended an Ivy League school. A graduate of the University of Notre Dame, she would also be the first mother with school-age children to serve on the bench.
Mindful that she is vying for the seat of Ginsburg -- a feminist icon -- Barrett praises the late justice for "the path she marked and the life she led." Left unsaid is the fact that the two women are ideological opposites.
And she ends her statement with a flourish -- highlighting her faith and the fact that she believes in the "power of prayer" and has been uplifted to hear that so many people are "praying for me."
A nominee's opening statement often sets the tone for the start of the hearing. After Barrett delivers her statement, at the end of proceedings on Monday, the committee will adjourn until Tuesday for when the grilling is expected to begin.
Before even reaching substantive constitutional questions, Democrats are expected to ask Barrett whether she will recuse herself from any election-related litigation that reaches the high court. Although it's a long shot, it is always possible the Supreme Court will once again be called upon to decide the election.
"I think this will end up at the Supreme Court," Trump said at a recent White House event. "And I think it's very important that we have nine justices."
Barrett is likely to avoid the question, but if she is confirmed it will be her own choice whether to recuse.
Affordable Care Act
Democrats are also likely to focus on the Affordable Care Act. A week after Election Day, the justices will hear the most important case of the term and decide whether to invalidate the entire law. The decision could strip millions of their health care during a pandemic. Critics of Barrett will point to some of her previous writings, before she took the bench, where she expressed skepticism about the reasoning Chief Justice John Roberts used back in 2012 to uphold the law under the taxing power.
"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," she wrote. "He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.
"Had he treated the payment as the statute did -- as a penalty -- he would have had to invalidate the statute as lying beyond Congress's commerce power," she said. The challenge before the court now is different, but it rests in part on Roberts' original opinion.
Roe v. Wade
Democrats will also seize on positions Barrett took before she was a judge, on Roe v. Wade -- the 1973 landmark decision legalizing abortion. Unlike other recent nominees, there is a significant paper trail detailing Barrett's views on abortion, and Roe, as a law professor at the University of Notre Dame.
She signed a petition, for example, with other faculty, for a paid advertisement reaffirming the school's commitment "to the right to life" and criticizing Roe. "In the 40 years since the infamous Roe v. Wade decision over 55 million unborn children have been killed by abortions," the ad reads.
In 2006, she added her name to a list of "citizens of Michiana" who signed a "right to life ad" sponsored by a group that opposes abortion that appeared in the South Bend Tribune. The ad from the Saint Joseph County Right to Life calls for putting "an end to the barbaric legacy of Roe v. Wade and restor(ing) laws that protect the lives of unborn children."
Late Friday night, Barrett released a supplement to her Senate questionnaire, including the ad and outlining previously undisclosed talks she gave in 2013 to anti-abortion students groups after CNN's KFile reported their existence.
In 2016, before taking the bench, she said, "I don't think the core case -- Roe's core holding that, you know, women have a right to an abortion -- I don't think that would change," she said. "But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics -- I think that would change."
At her 2017 Senate confirmation hearing for a seat on the 7th Circuit Court of Appeals, she was pressed on whether her own personal convictions would impact how she applies the law. "If there is ever a conflict between a judge's personal conviction and that judge's duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires," she said.
Her critics point to two opinions from her time as a judge. In both she voted to rehear cases where a smaller panel of judges ruled against abortion restrictions. That desire to take another look at the laws leads her critics to believe she would have voted to uphold those restrictions.
Barrett also voted with the majority in an opinion upholding a "bubble zone" ordinance in Chicago, which bars abortion opponents from approaching someone within 8 feet in the vicinity of a clinic if the purpose is to engage in protest. Her critics note, however, that even though she voted in favor of supporters of abortion rights, the opinion makes clear the lower court was bound by Supreme Court precedent.
Last term, four conservative justices urged the court to take up a Second Amendment case, yet by the end of the term they had declined to do so. That suggests there wasn't the necessary five votes. Now, if Barrett is nominated, she could be that vote.
In one decision, Kanter v. Barr, she dissented when her colleagues upheld a law barring convicted felons from possessing a firearm. The language she used in the opinion tracked closely with language used by conservative Justice Clarence Thomas. Like Thomas, Barrett suggested that lower courts are thumbing their nose at Supreme Court precedent to uphold gun restrictions treating the Second Amendment like a "second class right."
In the upcoming hearings Sen. Richard Blumenthal, a Democrat, has vowed to make her views "front and center" to show how "Judge Barrett's extremist, hard-right views of the Second Amendment will do real harm to real lives in real ways."
Barrett does not have a robust record on same-sex marriage, but in a 2016 speech at Jacksonville University made while she was still a law professor, she laid out both sides of the debate.
She framed it as a "who decides" question. That is very similar to how Roberts framed the issue when he dissented in the landmark 2015 case Obergefell v. Hodges, which cleared the way for same-sex marriage nationwide.
He said the issue would have been better handled by the political branches. Speaking broadly, Barrett was asked about the future of the court in the speech and she seemed to align herself with Roberts' thinking. "The 'who decides' question," she said, "is really important to me -- I worry a lot about that 'who decides' question, about our decisions, and my voice being taken away."
Many of Barrett's critics fear that on the bench she will greenlight Trump's policies if he wins another term. In one immigration-related case, she dissented when her colleagues temporarily blocked a Trump administration rule that puts green card holders at a disadvantage if they access public services.
On Monday, the fraught hearings will begin, and Republicans have vowed to get her confirmed by then end of October.