Partisan anger, mudslinging, and shenanigans to spike this week. The U.S. Senate Judiciary Committee is about to start confirmation hearings for Amy Coney Barrett, President Donald Trump’s new nominee for the Supreme Court. The timing of the hearings—which begin today and are scheduled through Thursday—couldn’t be more absurd, as Americans are already voting in an election just weeks away, questions remain about the completeness of Barrett’s paperwork, and two members of the judiciary committee recently came down with COVID-19. Meanwhile, senior Republicans on the confirmation committee are refusing to take coronavirus tests before everyone meets.
In the rush to confirm before the November election, it looks like Senate Majority Leader Mitch McConnell is willing to put the health of his colleagues and others at risk. The two committee members who tested positive for COVID-19 recently—Utah Republican Mike Lee and North Carolina Republican Thom Tillis—will attend the confirmation hearings via video…mostly. But voting must take place in person.
NEW — Amy Coney Barrett’s opening statement. Notable line: “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.” pic.twitter.com/Uvuqlgn4km
— Seung Min Kim (@seungminkim) October 11, 2020
Tuesday and Wednesday will feature questions from senators, with Thursday reserved for questions and testimony from non-Senate folks.
Judiciary Chair Lindsey Graham can call for a committee vote after that, though Democrats can (and almost certainly will) call for this to be postponed a week. Even with some stalling from Democrats, however, the full Senate will likely vote on Barrett’s nomination by October 29.
As election-time strategy goes, this could be risky for Republicans, since some conservatives may feel compelled to vote for Trump only if a Supreme Court seat is at stake. “Her confirmation can and probably will be done before Election Day, at which point Trump’s SCOTUS voters can—and, on this very basis, should—dump him as swiftly and mercilessly as he’d dump them were they no longer politically useful,” writes Bonnie Kristian at The Week.
Then again, it’s unclear whether “Trump’s SCOTUS voters”—people who would vote for him only on the basis of getting another conservative on the Court—actually exist, at least in any significant numbers.
In any event, Barrett’s fate is no longer really in question—as long as enough senators stay healthy enough to vote, anyway.
“The Republicans would need several senators to defect and there’s no sign of that at this point,” explains Supreme Court analyst and blogger Amy Howe in an interview with PBS. “There are two senators, Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine, who had said that they wanted Republicans to wait and not vote on a nominee before the election. But I don’t think that either one of them has committed to not voting for Judge Barrett.”
When Barrett makes it to SCOTUS, she’ll face cases on some major issues. More from Howe:
The day after Election Day, the Supreme Court will hear oral arguments in a case called Fulton versus City of Philadelphia. And this is a case about the balance between religious beliefs on the one hand, and anti-discrimination laws, particularly anti-discrimination laws against LGBTQ people, on the other hand. And it’s sort of a second round of cases.
Many of your viewers may remember from a couple of years ago a case involving a Colorado baker who refused to make cakes for a same sex wedding. The Supreme Court in that case ruled for the baker but in a very narrow way, that didn’t resolve the broader question of how do you balance someone’s religious beliefs against anti-discrimination laws? And so the question is back in a case brought by Catholic Social Services in Philadelphia against the City of Philadelphia, which won’t now give contracts to Catholic Social Services because Catholic Social Services won’t work with foster care parents who are same-sex couples.
And the second one is a week after Election Day and that is the challenge to the individual mandate of the Affordable Care Act. And that is a case that back in 2012, again, many of your viewers may remember, the Chief Justice John Roberts joined the court’s then four more liberal justices in upholding the individual mandate. A couple of years later, the Congress changed the mandate, they reduced the penalty for not getting health insurance to zero. And so Texas and some other so-called red states went to court, said, well, if there’s no longer a penalty for not getting health insurance, it can’t be a tax. And they said if the mandate’s not constitutional, the whole Affordable Care Act has to go with it. And so that is obviously a very consequential case that is going to be argued on November 10 in the Supreme Court.
• Something strange is going on with California ballot boxes.
• Coronavirus case counts continue to hit record highs in more than a dozen states.
• “Biden is strongly considering former Deputy Attorney General Sally Yates for attorney general,” reports Tana Geneva for Reason. It’s not a good sign for criminal justice reform.
• Michigan takes a small step forward for criminal justice reform.
• Here’s how the first weekend of reinstated shutdown and social-distancing orders in New York City is going:
From Friday to now, over $150,000 in fines from 62 summonses were handed out by City agents in the Red, Orange and Yellow zones, including 5 to non-compliant religious congregations.
— City of New York (@nycgov) October 11, 2020
The New York City fines “went to to people, businesses and houses of worship,” including “a restaurant and at least five houses of worship,” reports The New York Times.