Amy Coney Barrett begins Supreme Court confirmation hearing

Sen. Mike Lee, R-Utah, who tested positive for coronavirus after Judge Barrett’s Rose Garden nomination event on Sept. 26, appeared in-person and delivered his opening statement without a mask, despite heightened COVID-19 fears on Capitol Hill.

He used his time to criticize the “politicization” of Judge Barrett’s nomination and reminded colleagues that Barrett is a judge, not a policymaker, and should be asked questions accordingly. 

“These tactics of creating fear and uncertainty and doubt, these tactics that result in relentless protests outside of the one branch of government that isn't political astound me, dismay me and disappoint me. They reflect the fact that we have allowed for the politicization of the one branch of the federal government that is not political,” Lee said.

“We ourselves within the legislative branch have got to do a better job by focusing on the fact that the Constitution is not just a judicial thing. It's also a legislative thing. It is also an executive thing. It is an American thing. It's one of the many reasons why I will object to anyone, anytime anyone tries to attribute to you a policy position and hold you to that,” he concluded.

Lee’s presence would appear to violate Centers for Disease Control and Prevention isolation guidelines as he tested positive for COVID-19 on Oct. 2, just 10 days ago.

"Good news," said Graham, leading the hearing. "Senator Lee's enthusiasm for the dormant Commerce Clause convinces me you have made a full recovery."

Sen. John Cornyn, R-Texas, said he hopes Democrats don’t use the hearing to attack Judge Barrett’s Roman Catholic faith, arguing Democrats' raising Justice Brett Kavanaugh’s Catholic faith at his hearing was “an absolute disgrace.” 

“I hope they resist the temptation to repeat that during this hearing. I do remain concerned, Judge, about some of the earlier attacks on your faith,” he said. “Let me be clear, Judge, as you know, there's no religious test to serve on the Supreme Court. Why? Because the Constitution says so. And I can only hope that the civility that you have shown through your professional work will be afforded to you through these proceedings.”

Cornyn said his constituents are more concerned with her family life -- “how you do it," he said, referring to juggling personal and professional responsibilities.

“How do you and your husband manage two full-time professional careers, and at the same time, take care of your large family? I bet there are many young women like my own two daughters who marvel at the balance that you've achieved between your personal and professional life,” he said.

Sen. Dick Durbin, an Illinois Democrat, noted the bipartisan confirmation votes of Justices Ginsburg and Scalia raised earlier -- before dismissing the chance of that in the current Senate. 

“The reason those votes were so overwhelming was because people lived by the rules. They lived by the traditions of the Senate and they had mutual respect for one another. We know now that this process does not adhere to those guidelines,” Durbin said, arguing that the nomination was rushed and noting some background paperwork on Barrett is still missing. 

“Their haste, the haste in this pursuit set before us today is unfair to the Senate and unfair really to the nominee,” he said. 

Durbin then outlined the “McConnell Rule.”

"On February 13, 2016, when Justice Scalia passed away, Senator McConnell said at the time, “The American people should have a voice in this election of their Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

“In 2016, Senator McConnell says give them a voice. Now he says don't give them a voice. It is a shameless self-serving reversal,” Durbin said, noting the election is 22 days away.

“Why are Senate Republicans so afraid to give the American people a voice about the future of the Supreme Court? First they must doubt that Donald Trump will be re-elected. Second, they want a 6-3 Supreme Court to carry out a Republican agenda that is really not very popular with the American people,” Durbin said, raising the Affordable Care Act and election-related cases that may come before the Court, and using his constituents to put a face to the debate. 

“Judge Barrett, your nomination for the highest court in the land comes under a cloud. You've been nominated by a president who shows contempt for the Constitution, but does not hesitate to tell his loyal followers you are being sent to the bench to do his political chores. Abolish the ACA, rule in his favor, and more,” Durbin concluded. “You cannot feel good about a president cheapening this historic moment.”

Sen. Patrick Leahy, D-Vt., hit on the shame he said Republicans should feel as Barrett’s nomination ceremony took place just one week after the passing of Justice Ginsburg. 

“We should not have had a nomination ceremony before Justice Ginsburg was even buried, while the nation was mourning her passing,” Leahy said. “We should not be here, holding that hearing just 16 days later when the committee has afforded itself three times as long to vet other nominees to the nation's highest court.”

Leahy also noted the number of Republicans he said have gone “back on their word” as they push the nomination through when millions of Americans have already voted just three weeks from a presidential election. 

“Doing so requires literally half of the Senate, goes back on their word. Think of that for the Republican colleagues. Clearly half of the Senate had to break their word, contradicting every argument they've made for years, about the American people needing a voice during election year vacancies,” he continued. 

Leahy, as did Feinstein, said in addition to the rushed nature of the nomination, his constituents are “scared” about the fate of the Affordable Care Act should Barrett be confirmed to the court. 

“That is what weighs heavily on me as we begin these hearings and also weighs heavily on the minds of those I represent, and I have heard from them, as Justice Ginsburg's passing, they are scared, Judge Barrett,” Leahy said.

“They are scared that you will rip away the health care protections that millions of Americans ought to maintain and which Congress has repeatedly worked on eliminating. They're scared that the clock will be turned back to where women had no right to control their own bodies and when it was acceptable to discriminate against women in the workplace. They're scared that there is a time when we are facing the perilous impacts of climate change... And they're scared that your confirmation will result in the rolling back of voting rights, workers' rights, and the rights of the LGBTQ community to equal treatment," Leahy said.