The stairway to SCOTUS

WASHINGTON—This week, President Donald Trump’s nominee to the U.S. Supreme Court, Amy Coney Barrett, headed to Capitol Hill for one-on-one meetings with senators—a longstanding ritual of the confirmation process. She might meet with some Democrats, as well, though many have refused, calling her nomination illegitimate. The rejections signify the start of the contention expected to accompany the confirmation process.

The last and only other time a Supreme Court confirmation vote fell so close to a presidential contest was in 1968. Republicans at the time refused to confirm President Lyndon Johnson’s nominee for chief justice, Abe Fortas, who already served on the court as an associate justice. The next president, Richard Nixon, appointed Warren Burger to fill the seat.

This time, GOP lawmakers are eager to fill the spot and optimistic they can do it.

With a 53-47 majority in the Senate, Republicans can afford to lose three votes and still have Vice President Mike Pence to break a tie. So far, only two centrist GOP lawmakers have said they do not think a vote should occur before the presidential election.

The FBI should finish Barrett’s background check prior to the Senate Judiciary Committee hearing, which is scheduled to begin Oct. 12. Barrett has already returned the committee questionnaire with 69 pages of answers.

During Justice Brett Kavanaugh’s 2018 confirmation hearing, protesters waited for hours outside to be allowed in. They shouted, held signs aloft, and created regular disruptions leading to mass arrests. Because of the coronavirus pandemic, the Senate will not allow the public to attend Barrett’s hearing. After the hearing, lawmakers will submit additional questions. The vote to advance the nomination out of committee will likely happen the week of Oct. 26, with a full floor vote the week before Nov. 3 general election.

Democrats have a limited arsenal to stop the proceedings. Sen. Dick Durbin, D-Ill., told ABC’s This Week that the most they can do is “slow it down—perhaps hours, maybe days at the most. … But we can’t stop the outcome. What we should do is to address this, now, respectfully.”

Trump’s other two appointees, Kavanaugh and Justice Neil Gorsuch, each had nearly two months to prepare for their hearings. Barrett has the benefit of having gone through confirmation for her appointment to the 7th U.S. Circuit Court of Appeals in 2017. During that process, Durbin and Sen. Dianne Feinstein, D-Calif., cast suspicion on Barrett’s Roman Catholic faith. This time around, they may steer clear of such lines of questioning to avoid backlash from the right. But they will likely go after her views on healthcare, since the high court is expected to rule soon on the fate of the Affordable Care Act.

“We have learned from the Kavanaugh confirmation that we have to be ready for anything,” said Carrie Severino, president of the Judicial Crisis Network. Still, she said she hopes for restraint in the hearing: “I think there are a whole lot of things that should be off the table, and going after one’s faith and family are clearly among them.”

But the pressure won’t only come from the left.

“Senators [will be] asking questions, which are really trying to find out how the nominee is going to decide cases in the future,” said Tom Jipping with the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. Both Republicans and Democrats will want to know how Barrett might rule in abortion cases that could challenge the Roe v. Wade decision that forced states to legalize abortion.

Barrett, like other nominees before her, will likely decline to answer such questions.

If the vote does not happen by Election Day, Republicans could still try to confirm Barrett before the new Senate convenes on Jan. 3, 2021. But it’s riskier: In Arizona, GOP Sen. Martha McSally is in a tight race in a special election against Democrat Mark Kelly, who leads her in the polls. If he wins, he could be sworn in as early as Nov. 30. In Georgia, whoever wins the race to finish Sen. Johnny Isakson’s term could also join the Senate before January. If either of those seats flipped from red to blue, it would tighten McConnell’s margin for error.

Still, Judicial watchers are optimistic about a pre-election day vote.

“Leader McConnell knows the Senate rules as well as anybody and they’re anticipating anything that the Democrats can throw at them,” Severino said.