A visitor from outer space might have thought that they were the upholders of civics and civility at the start of Amy Coney Barrett’s supreme court hearing on Capitol Hill. No matter that Trump has played divider-in-chief or that Republicans blocked Barack Obama’s nominee to the court in 2016.
It was a morning of hypocrisy and healthcare.
Lindsey Graham, chairman of the Senate judiciary committee and the Trump appreciation society, reminded everyone that both Ginsburg and her ideological opposite, Justice Antonin Scalia, were confirmed almost unanimously.
“I don’t know what happened between then and now,” he said, wistfully. “We can all take some blame but I just want to remind everybody there was a time in this country where someone like Ruth Bader Ginsburg was seen by almost everybody as qualified for the position of being on the supreme court, understanding that she would have a different philosophy than many of the Republicans who voted for her.”
No justice has been confirmed so close to a presidential election. Graham, who promised not to confirm one in an election year (saying “Use my words against me”, which plenty of Democrats are), acknowledged a point everyone could agree on: “This is going to be a long, contentious week.”
As senator after senator drew their battle lines, 48-year-old Barrett, sitting silently in a big black face mask, resembled a prisoner in the dock.
Republicans sought to normalise her rushed nomination, arguing the Senate was merely doing its duty while setting up straw men: Democrats want to attack her Catholic faith (none did), Democrats want to play foul as they did with Brett Kavanaugh (hardly), Democrats want to expand the court (objection: relevance), Democrats want to conflate the judiciary with policy (true).
Josh Hawley of Missouri pushed the notion that Democrats, whose presidential nominee is Catholic, are as hostile to the Vatican as Henry VIII: “When you tell somebody that they’re too Catholic to be on the bench, when you tell them they’re going to be a Catholic judge, not an American judge, that’s bigotry.”
Joni Ernst of Iowa added: “It’s really quite simple what your opponents are doing. They are attacking you as a mom and a woman of faith because they cannot attack your qualifications.”
For their part, Democrats maintained a laser-like focus on turning the hearing into a proxy vote on the future of the Affordable Care Act (ACA), known as Obamacare. The supreme court will hear a case on the law on 10 November, with Barrett’s past positions suggesting she will be part of a 6-3 conservative majority to strike it down. In the hearing room, Democrats set up giant photos of citizens whose insurance would be taken away.
Sheldon Whitehouse of Rhode Island said the nomination was a “judicial torpedo aimed” at Obamacare’s protection for people with pre-existing conditions. He added that Barrett “has signalled in the judicial equivalent of all-caps that she believes the ACA must go”.
It was a sensible card to play. Healthcare was a successful message in the 2018 midterms. Now it is sharply in focus, in the middle of a pandemic that has killed more than 210,000 in the US. They also pointed out the jarring contrast between a Senate that can move faster than Usain Bolt to hold supreme court hearings and the body that has dragged its feet on economic relief for millions of unemployed.
She highlighted the case of Myka, a girl with a congenital heart defect and whose health insurance is guaranteed by Obamacare. Harris lifted Myka’s photo to reveal the book I Dissent: Ruth Bader Ginsburg Makes Her Mark.
“Mr Chairman, this hearing is a clear attempt to jam through a supreme court nominee who will take healthcare away from millions of people during a deadly pandemic that has already killed more than 214,000 Americans,” Harris said.
Like judicious guests at a dinner party, Democrats steered well clear of talking about religion. They also – except Cory Booker of New Jersey – had little to say about the threat to Roe v Wade, the 1973 ruling that effectively legalised abortion nationwide, perhaps wary of how it might play for Joe Biden in swing states on 3 November.
Barrett also wisely avoided the subject when she was finally allowed to peel off her mask and read from a prepared statement. Her calm and steady voice was easier on the ear than Kavanaugh’s stentorian fulminating. She reinforced Republicans’ talking points without offending liberals: “Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches, elected by and accountable to the people.”
Barrett tested positive for Covid-19 earlier this year and recovered. The Republican senator Mike Lee, infected much more recently, displayed some Trumpian bravado by attending in person and speaking without a mask after his office said he was free of symptoms. Another infected senator, Thom Tillis of North Carolina, participated remotely. The hearing room had physical distancing in place.
It could hardly go worse than the White House ceremony where Barrett’s nomination was announced. Guests did not wear masks or observe physical distancing. More than two dozen people linked to the event, including the two senators, have contracted Covid-19. Dr Anthony Fauci, the country’s top infectious diseases expert, has called it a “super-spreader” event.
Whitehouse complained: “America is worried about one thing above all else right now: our health. This hearing itself is a microcosm of Trump’s dangerous ineptitude in dealing with the Covid pandemic. Trump can’t even keep the White House safe.
“Here, it’s the chairman’s job to see to the committee’s safety, and though his words were reassuring, I don’t know. Who has been tested? Who should be tested? Who is a danger? What contact tracing has been done on infected and exposed senators and staff? Nothing.”
He summed up: “The whole thing, just like Trump, is an irresponsible botch.”
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