Senate Begins Clearing Barrett’s Obstacles to Supreme Court

(Bloomberg) -- Majority Leader Mitch McConnell set in motion the Senate’s final action on Supreme Court nominee Amy Coney Barrett, as the chamber’s narrow Republican majority prepares to clear the few remaining hurdles before she replaces the late liberal Justice Ruth Bader Ginsburg.

McConnell set up a procedural vote on the nomination for Sunday as he aims for final confirmation by Monday.

His timetable brings President Donald Trump to the cusp of elevating his third Supreme Court justice to the bench, aiding a rightward judicial-branch transformation. Barrett, a 48-year-old appellate court judge who’s a protege of the late Justice Antonin Scalia, will foster a 6-3 conservative majority that could last for decades.

Democrats castigated a process they say unfolded posthaste just weeks after Ginsburg’s death on Sept. 18, and as early voting was already under way in the presidential election. They say Barrett could change how the court might rule in areas that include abortion, the Affordable Care Act, civil rights, and lawsuits that could stem from the 2020 vote.

“The Republican majority is steering the Senate towards one of the lowest moments in its long history,” said Senate Minority Leader Chuck Schumer, a New York Democrat. “The Republican majority is on the precipice of making a colossal and historic mistake, and the damage it does to this chamber will be irrevocable.”

‘About 72 Hours’

Barrett, who has served on the 7th Circuit Court since 2017 and who teaches at Notre Dame Law School, is clearly qualified and polls show the public supports her elevation, said McConnell. He’s dismissed Democratic charges of hypocrisy in moving ahead after Republicans refused to consider President Barack Obama’s pick to replace Scalia in 2016, nine months before a presidential election. Republicans control both the White House and Senate today and didn’t back then, McConnell said.

“In about 72 hours we’ll have a new associate justice of the Supreme Court of the United States,” he said.

In a reflection of the flaring partisan tensions over the fast-track confirmation, Democrats triggered a series of votes and Schumer forced a rare but brief closed-door session of the Senate to delay McConnell from setting up the Barrett votes. Democrats on the Senate Judiciary Committee took the unusual step of boycotting Thursday’s committee vote to advance Barrett’s nomination as a further protest.

Filibuster Rule

Rancor over judicial nominations dates back to the nomination of Judge Robert Bork in 1987 and contributed to a 2013 decision by then-Senate Majority Leader Harry Reid to push through a Senate rules change ending filibusters of lower-court judges. McConnell in 2017 forced through a change ending filibusters of Supreme Court picks, a move that enabled the confirmations of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh by razor-thin margins.

All Senate Democrats are opposing Barrett’s confirmation and two Republicans -- Susan Collins of Maine and Lisa Murkowski of Alaska -- say they don’t want to see a new justice confirmed before the Nov. 3 election. Both voted with Democrats Friday in an effort to prevent McConnell from moving the Senate toward considering Barrett’s nomination, with Republicans prevailing on a 51-46 vote.

But with a 53-47 Senate majority, Republican leaders are confident of Barrett’s approval, and they will keep the Senate debating through the weekend to enable a final vote Monday.

In two days of testimony last week, Barrett stressed she would be her own judge, and she deflected questions on how she might rule on issues ranging from abortion to voting rights to health care. While saying she wasn’t calling for the court to be more aggressive in overturning its precedents, she declined to include cases involving access to abortion and contraception rights among “super-precedents” that are unthinkable to overturn.

Affordable Care Act

Democrats used the hearings to highlight her potential impact on the ACA, their leading issue in elections that will determine White House and Senate control. Barrett likely would be on the court when it hears arguments Nov. 10 in a case that could undo Obamacare, which provides health insurance for 20 million Americans. She’s criticized Chief Justice John Roberts for a 2012 high court majority opinion he wrote that upheld the core of the ACA.

When pressed by Democrats, Barrett declined to commit to recusing herself from 2020 election-related cases that come before the court. Trump said earlier he wanted Ginsburg’s replacement to help rule in his favor. She testified she would examine the circumstances of any case before the court and consult with other justices before making any decision.

A devout Catholic, Barrett personally opposes abortion but testified that she’ll set aside her personal views in her work as a judge. Senate Judiciary Chairman Lindsey Graham said Barrett’s expected elevation will make some history.

“She will take her job on without an agenda,” Graham said. “But the important thing to me is that it’s important to be a complete person and be on the Supreme Court,” Graham said. “It’s OK to be pro-life. She embraces the pro-life cause in her personal life, but she understands judging is not a cause. It is a process.”

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