Republicans Decry Nonexistent Religious Bigotry at Coney Barrett Hearing

Instead, Democrats stuck to a quotidian but reality-based argument about how Trump’s nominee would scrap the Affordable Care Act.

If one can imagine a child’s birthday party in a busy abattoir, one can also approximate the unreality of the Senate Judiciary Committee’s first day of hearings on the nomination of Amy Coney Barrett to the Supreme Court. Not only were there multiple subtexts underneath the words of witnesses and senators, but quietly in the corner, his scythe at his side, sat the Angel of Death with his gift of COVID-19. The grim reaper was impossible to ignore despite chairman Lindsey Graham’s almost hebephrenic attempts to wish him away.

Some of the proceedings took place on an actual split-screen—Senators Dianne Feinstein, Patrick Leahy, and Kamala Harris gave their opening statements remotely. But all of it was set in one of two different worlds. One is inhabited by Democrats, who persistently questioned the nomination’s potential effect on the Affordable Care Act case now pending before the Court, and the other by Republicans, who screamed that the Democrats were actually attacking Barrett’s Catholic faith and her family–or if they weren’t some of them once had–or some people that Democrats hang out with had–or they were—I know, Mr. Chairman! Call on me, Mr. Chairman!—they were thinking it!

Right there, over there, listen to those voices in the air, I’m not mad, I tell you! The apex of this nonsense brought us Senator John Kennedy of Louisiana, more or less out of the blue, predicting that “before it’s all over they may call you Rosemary’s Baby!” Kennedy, who holds a law degree from Magdalen College, Oxford, could probably have gotten nearer the target with an allusion to the Palliser novels, but, you know, Louisiana, least common denominator, etc.

The nominee herself, and her picture-perfect family, were probably the least conspicuous participants in the room. All of the 48-year-old’s appealing qualities are irrelevant to the Democratic critique of her nomination. There were (no matter what Fox News will report tonight) no attacks on Barrett’s faith, family, or her membership in a specialized Catholic lay order called People of Praise.

Instead, every Democratic Senator focused on one point: Donald Trump has promised that any justice he appoints will vote to strike down the Affordable Care Act.  The Act is on the block in a case brought by Republican state governments that will be heard a week after the election, Barrett’s scholarly writings have criticized the Court’s decisions upholding the Act; Trump and McConnell’s insistence on seating Barrett before Election Day must surely be connected to that coincidence. Over and over Democrats have stuck to the script, pointing (with heart-tugging photographs) to their constituents who face financial ruin or death should  the Act, and its protection of pre-existing conditions, be struck down.

Everyone in the hearing room, or connected to it by video, knows that the end of what would only be called a “process” in a country that has made the transition to Full Banana is foreordained. A far-right Justice will be confirmed hours before the election to take the seat left vacant by the death of Ruth Bader Ginsburg. Barring a miracle (upon which the pro-Barrett side is implicitly claiming a monopoly), the Democrats can’t win that vote; so they focused on winning a different vote by reminding the voters that the Republicans are planning to destroy Obamacare.

Vice-presidential nominee Harris appeared remotely, pictured against a distinctly presidential-looking background of American flags. She barely acknowledged the nominee or the nomination. Instead, she warned viewers that, having failed repeatedly to repeal the ACA, Senate Republicans “are trying to bypass the will of the voters and have their Supreme Court do their dirty work for them. ….They are trying to get a Justice on the Court in time to strip away the protections of the Affordable Care Act.”

Is focusing on the ACA a wise political strategy? I am the last person you should ask. Is the implication that Barrett is a “no” vote in the Obamacare case fair? The answer there is a qualified “yes.” Barrett, in her essay “Countering the Majoritarian Difficulty,” was distinctly acerbic in her view of Chief Justice John Roberts’s opinion that saved the Act by construing the “penalty” imposed by the “individual mandate” as a tax. She also raised a professorial eye at his statutory opinion, King v. Burwell, which upheld the Act’s subsidies on federally established health care exchanges against an outlandish conservative reading that would have wrecked them. She did not write “I would have voted the other way,” but it is not only fair to zero in on this issue—it is remarkably close to the kind of thing Senators should do in a confirmation hearing. If she wants to expand on the hints in her article, she can; if she does not wish to, Senators and viewers can draw their own conclusions.

There was no hint that the Democrats demand commitments to rule a certain way in a certain type of case (which a nominee can justly and swiftly dismiss as illegitimate). There was not even much reference to Trump saying publicly that he needs her on the Court to make sure election challenges go his way (though I hope that will come up in questioning on Tuesday).

Kennedy and his more subdued colleagues can perhaps be forgiven a touch of vertigo verging on delirium. Monday they were treated to the dog that didn’t bark: a political trap of religious inquiry into which Senate Democrats did not stumble.

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.