Democrats on Thursday mounted a brief protest to try to delay committee action on the nomination of Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, but Senate Judiciary Committee Chairman Lindsey Graham barreled forward with the support of his GOP colleagues on the panel -- casting aside committee rules in the process.
"I want to take official note of the fact that I’m the only member of the minority that is here, and so we cannot conduct business until that second member of the minority is here," Sen. Dick Durbin of Illinois told Graham, referencing committee rules that require two members of the minority to be present to conduct business.
Graham hit back: "If we create this problem for you in the future, you’re going to do what I’m going to do which is move forward on the business of the committee.: A brief vote was conducted with all Republicans supporting the chairman, and the protest was ended.
With Democrats’ delay effort shut down and a vote on the nomination scheduled for Oct. 22 at 1 p.m., it was even more apparent that Barrett is on track to be approved by the Senate by Election Day, a key goal of President Donald Trump who has said she could help decide any election-related dispute that comes by the Supreme Court.
Barrett said she would seriously consider whether she should recuse herself but did not commit to recusal as Democrats pressed her to do. She did not attend Thursday's hearing.
Despite the remarkably low-key question-and-answer period on Tuesday and Wednesday, Democrats were highly critical of Barrett as the proceedings neared a close, casting her rise to the nation's highest court in the most ominous terms, accusing her of wanting to be an activist judge who will surely cast a deciding vote to strike down scores of laws that would affect millions of Americans, from guaranteed health care for those with preexisting coverage to same sex marriage and even climate change.
“They want her to be the ninth justice to make a decision on the election, rather than the voters,” Sen. Richard Blumenthal, D-Conn., told reporters, “And they want someone to strike down the Affordable Care Act and Roe v. Wade.”
Barrett, for her part, studiously avoided any hint of how she might one day rule, if confirmed, refusing to answer even the simplest of questions - including whether a president has the power to delay an election. According to federal law, that power rests solely with Congress.
Instead, Barrett kept fast to a stock answer she used in similar ways throughout 19 hours of questioning, “If that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion writing process. So, if I give off the cuff answers, then I would be basically a legal pundit. I don't think we want judges to be legal pundits.”
The focus of much of the two days of questioning was on the Affordable Care Act with a case coming before the high court just one week after the election, and Democrats making the case that a Justice Barrett would likely cast the deciding vote that could see the destruction of the Obama-era law and ultimately leave some 20 million Americans with preexisting conditions without health care.
GOP Sen. John Cornyn of Texas accused Democrats of raising "straw men" to scare Americans into believing Barrett would take away their health care. He said his colleagues on the other side of the aisle have “become accustomed to the Supreme Court bailing them out.
"I’ve been really struggling to find out the truth, to understand why Judge Barrett is such a threat to them. It is because they've become accustomed that when they lose elections and they lose votes in the Congress, they depend on courts to bail them out. That’s not what judges should be doing," Cornyn admonished.
Democrats repeatedly ridiculed the expedited hearings occurring just 14 days from Barrett’s nomination, citing new talks found on a Notre Dame calendar given by Barrett in her time as a professor -- as first reported by CNN -- that were not included in the committee questionnaire as required. Still, Republicans pushed on.
Never in history has a nominee to the Supreme Court been confirmed so close to an election.
“This is a hypocritical sham rush job,” Sen. Mazie Hirono, D-Hawaii, argued. “The court is definitely going to the right, and with her presence on the court ... all of these precedents are subject to being overturned. That’s what’s at stake.”
Democrat Durbin said he feared for the future of the panel with rules and norms broken so casually.
"We are breaking the rules of the Senate, breaking the rules of this committee," he said. "We defying our own tradition, common sense, and the mutual respect that led to votes of 98-0 (Scalia) and 96-3 (Ginsburg)."
"I don't know how we get this train back on the track. This nomination is not normal ... We should've waited," Durbin warned.
The threat of the pandemic loomed large over the hearing, with hand sanitizer and disinfectant evident all around and nearly every attendee masked.
Democratic Sen. Chris Coons of Delaware announced Thursday morning that he had just come back from getting a virus test administered by the Capitol Attending Physician “so that I can return with some confidence to my family this evening that I haven't picked it up while here,” adding he was not “confident” that attendees had been kept safe.
Despite the occasional acrimony, the overwhelming respectful hearings ended in collegiality.
Democratic Sen. Dianne Feinstein thanked GOP chairman Graham for holding what she called "one of the best Senate hearings I have ever participated in" and later the two hugged.
Graham heaped praise upon Barrett, and ended by remarking that he is hopeful that polarized Americans can "start over" after the election.
"Let me just say an election will come. Winners will be declared. We get to start over," Graham said. "The thing I like most about democracy is it is a journey without a destination. When are we going to get there? We never actually do. When you are a child you are excited about going. It really is the journey. I don't know how this election is going to come out. I am hopeful for our side. Having said that, 2016 was a curveball in many ways. I don't know what is going to happen. The more people vote, the better," Graham, in his own reelection fight, continued.
"When it is all over in a few weeks. I will just say this, if I'm around , I will commit myself to starting over. Looking forward, not backward."