Given the massive initial blowback to the Republicans’ decision to violate their own precedent by rushing through an election-year Supreme Court appointment, and conservative activists’ excitement about Amy Coney Barrett, so far her Senate confirmation hearings are surprisingly ho-hum. Perhaps someday we will look back on this week as a momentous turning point, as the substantive constitutional questions Barrett is largely refusing to answer are weighty and consequential and her expected confirmation will shift the Supreme Court sharply to the right. But at the moment, the temperature is far lower than it was two years ago during Brett Kavanaugh’s confirmation hearings.
Now, obviously, the Kavanaugh confirmation battle came to revolve around Christine Blasey Ford’s allegations of sexual assault against the nominee, and his angry counterattacks on Democrats for unveiling and considering them. It is extremely unlikely anything equally controversial and dramatic will arise during this week’s proceedings. But that isn’t the only reason the current proceedings feel much different. The dynamics at play in the Barrett hearings are fundamentally different in ways that benefit the nominee and her backers. Here’s why the “rush to judgement” on Barrett less than a month before a presidential election doesn’t feel like a bigger scandal:
This Time the Nominee’s Character and Personal Background Are Assets, Not Handicaps
Brett Kavanaugh and Amy Coney Barrett’s résumés are similar in some respects. Both are observant Roman Catholics of a traditionalist bent; longtime members of the conservative Federalist Society; and beneficiaries of past appointments from Republican presidents. But Barrett’s background has served as both shield and sword for her proponents in a way that Kavanaugh’s did not. Even before President Trump nominated Barrett to the Supreme Court, Republicans cleverly alleged that Democrats would expose anti-Catholic (or even anti-Christian) animus in an examination of her worldview. Republicans claim, unfairly, that the opposing party already did this during the 2017 hearings that preceded Barrett’s confirmation to the Seventh Circuit, so in recent days Democrats have given her belief system a wide berth.
During a less rushed confirmation process, Barrett’s longtime membership in People of Praise, a secretive charismatic Christian group characterized by private oaths and an allegedly patriarchal leadership structure, might have sparked controversy — and it’s likely progressive investigators are looking into it all. But Senate Democrats won’t go there on their own.
In the meantime, Barrett’s unusual personal and professional career has lent itself to hagiographical treatment in a way that Brett Kavanaugh’s conventional climb to the Court couldn’t support even if he hadn’t been accused of sexual assault. As Christine Cauterucci notes at Slate, she’s become an odd sort of symbol of ersatz feminism for anti-feminists:
In a crude way, [Barrett’s] lived example supports their argument that women’s choices, not the systemic restriction of those choices, is the only thing holding women back. It’s this belief that allows anti-choice activists to call themselves feminists and argue that abortion restrictions are not sexist — that assaults on a woman’s right to govern her own medical care, control what happens to her body, and choose when and whether to have children do not hold a woman back from achieving everything she wants in life.
And on the first day of the hearings, Republican paeans to Barrett’s large and diverse family were ubiquitous, as Robin Givhan observed:
Rare was the Republican on the committee who was able to deliver an opening statement without referring to the seven children in the Barrett family. This feat of parenting seemed to leave them gobsmacked with admiration and utterly mystified as to how a two-parent household with significant financial resources was capable of wrangling such a large brood without the missus showing up with oatmeal on her clothes.
Republicans Have Just Enough Breathing Room in the Senate
Since Democrats had a very successful 2018 midterm election, it is sometimes forgotten that Republicans achieved a net gain of two Senate seats that year. Trump and others have propagated the theory that the Kavanaugh hearings “saved” the Republican Senate by energizing the party’s conservative base, and it may have made a slight difference on the margins in this or that close race. But the reality is that the 2018 Senate landscape was wildly slanted in the GOP’s direction, as I noted at the time:
[A] “split decision” narrative driven by the GOP’s Senate gains was promoted by Republicans and media outlets alike. This was understandable since “Republicans retained the Senate because of the most insanely pro-GOP landscape ever” is not an interpretation that fits well into a headline or a tweet.
In any event, the 51-49 margin by which the Republicans controlled the Senate in 2018 is 53-47 now, and that has made an enormous difference in the dynamics. The defection of Democrat Joe Manchin in Kavanaugh’s favor gave the GOP a two-vote cushion in 2018; it’s three now without any Democratic votes. So Republicans can afford to lose the electorally endangered Susan Collins (as they already have), the other pro-choice Republican senator, Lisa Murkowski, and a random third senator, without consequences. Democrats know that, which is why they seem resigned to her confirmation.
The Senate margin also helps explain the Republican rush to get the confirmation done before Election Day; the Arizona Senate contest is a special election to complete the term of the late John McCain; Republican Martha McSally was appointed to the McCain seat until November 3. If, as currently seems likely, Democrat Mark Kelly defeats her, the Republican margin in the Senate instantly drops to two votes.
Democrats Have Decided to Use the Hearings to Reinforce Their 2020 Health-Care Talking Points
It’s impossible to know what line of attack Democrats might have taken in 2018 had Brett Kavanaugh not been facing sexual-assault allegations. But they might well have sought to reinforce their very effective midterm messaging on health-care policy thanks to pending Obamacare litigation.
That litigation is now on the Supreme Court’s doorstep, with oral arguments in California v. Texas scheduled to take place on November 10. The connection between the Supreme Court and a popular health-care law embodying protections for people with preexisting conditions is now very, very proximate, which also makes the acutely embarrassing Republican inability to design (or even describe) an Obamacare replacement more relevant than ever.
Since Barrett can’t say anything reassuring about her views on the constitutionality of the Affordable Care Act (which are clear and discomforting, if not exactly on the point raised in California v. Texas), her hearings provide a risk-free opportunity for the Donkey Party to hold every elephant’s feet to the fire on a subject voters care about a great deal. They are going to take it, and that keeps the heat off Barrett herself.
The political environment surrounding the Kavanaugh confirmation process was scorching hot, but not like 2020’s. Barrett’s confirmation hearing is being overshadowed by the coronavirus pandemic — particularly the fact that the president and several Senate Judiciary Committee members have contracted COVID-19, with some infections quite likely having been spread at a White House reception honoring Barrett.
But ultimately the strangest thing about this confirmation remains its proximity to a high-stakes election in which control of both the presidency and the Senate could very well change. That Barrett is being asked how she’d feel about deciding a presidential election that Trump has clearly already decided to contest if he loses is a reminder that another conservative justice isn’t the only present threat to the Constitution as we know it. Barrett’s confirmation, important as it is, cannot stand out starkly against a background so lurid and consequential as today’s.