Pre-Ordained
It’s not often you’ve heard me say this, but maybe Rush Limbaugh is right. He called for the Senate to “skip the hearings” and put the question of Judge Amy Coney Barrett’s Supreme Court nomination straight to a Senate floor vote. We all know that Mitch McConnell has the numbers to achieve his ambition: a six to three majority of Federalist Society adherents on the Court. Why go through all of the “theatre” of process: Committee hearings, speeches, and preliminary votes?
And the answer is in the question itself – theatre. This is part of the price McConnell and the President have to pay for putting a Justice on the Court twenty-one days before a national election. (Well, kind-of before, though almost ten million Americans have already voted). Both political parties see votes to be gained in the “spectacle” of the Senate Judiciary Hearings. While Judge Barrett may be the subject of the discussion, in fact, she is merely the foil, the “strawman”. The real targets are the voters.
Textualist
For the Republican majority, the object is to drive their base voters to the polls. Amy Coney Barrett is, as President Trump constantly hammers, “a promise fulfilled”. She is an arch-conservative jurist, cut from the mold of her mentor, the late Antonin Scalia. Her judicial view of “textualism” is the vessel that will allow her to wind the nation back to an “earlier era”, when women, the poor, minorities, and LGBTQ folks had fewer rights. “Textualists” propound that since the “founding fathers” didn’t envision rights for them, that it couldn’t be a “right” of the Constitution.
But her restricted view about “rights” isn’t really what drives the Republican leadership to her defense. The “textualists” believe in the “rights” of corporations, and the power of wealth. That drove the Court decision in Citizens United. In that case they found that restricting campaign spending is a violation of “free speech” of corporations under the First Amendment. Equating money to speech allowed for the unlimited spending in election campaigns we see today. That empowered groups like the Koch Brothers to exert intense influence on legislators.
Drive the Vote
But for the “theatre” of the Senate Hearings, Republicans will present Amy Coney Barrett. She is a brilliant jurist, and a woman who balances career and family. They will dare Democrats to attack her. In fact, they will preview attacks themselves. Senator Josh Hawley of Missouri warned of attacks on her religious beliefs. He claims Democrats would decry her Catholicism and her participation in “The People of Praise”. Senator Marsha Blackburn further warned that Democrats couldn’t accept a “woman” who didn’t agree with them, and would attack her based on her gender and family.
The Republicans want Democrats to attack Barrett personally, as they did to Brett Kavanaugh. An ugly fight over Barrett’s personal life would be exactly what Republican Senate members want. It’s all to drive the Republican base to defend Barrett the only way they can, go out and vote for Republican candidates in the election.
Slice the Suburbs
The difficulty Republicans are having with that strategy is that the Democrats aren’t “playing ball”. The Democratic strategy is to use the Barrett hearings as a forum for attacking the Republican agenda. Yesterday the theme was the Affordable Care Act. Democrats used Barrett’s statements opposing the Act to highlight the lack of any Republican replacement for Obamacare, in spite of a decade of opposition to the plan. The emotional stories and pictures of people who would be in dire straights except for the Affordable Care Act were intense, aimed to drive Democrats to the polls, and to slice into Republican support among white suburban women.
Expect that Democrats will carefully avoid any personal attacks on Bennett. But they will continue to highlight her views on women’s health and particularly on a woman’s right to choose an abortion. It won’t be about Bennett specifically though, it will be about Republicans continuing their “war on choice”.
But they will attack vulnerable Republican Senators up for re-election. Thom Tillis and Mike Lee, both recently diagnosed with COVID infections, are appearing “live” in the Committee room. Committee Chairman Lindsey Graham himself has steadfastly refused to have a COVID test, despite close contact with the President. Democrats will use this to highlight the President’s failure to control the pandemic, and the politically vulnerable Tillis and Graham’s complicity in his decisions. Democrats will claim that Tillis, Lee, John Cornyn of Texas and Graham have been frivolous and careless in the way they are handling COVID in the Committee.
The Outcome
Sometime before the election, Judge Barrett will become Justice Barrett of the United States Supreme Court. Should Democrats gain a majority in the Senate and Joe Biden as President, they will then have to decide how to respond to that fact. But in the meantime, the impact of the Barrett nomination will be felt in the most important American way: it will help “encourage” more to go to the polls, and determine who they will vote for.
And that’s why we will have the “theatre” in the Senate this week.
