Senators clash at Barrett confirmation hearing as Dems attempt procedural roadblocks, GOP forges ahead

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Day 4 of Supreme Court confirmation hearings

Lawmakers clashed Thursday as Democrats began to put up procedural roadblocks in Republicans' efforts to confirm Supreme Court nominee Amy Coney Barrett after two long days of testimony from the judge, stalling the committee's plan to hear from two expert panels. 

What was initially planned to be an examination of experts from the American Bar Association, people who personally know Barrett and those who are concerned about what her confirmation to the Supreme Court could mean, became over 90 minutes of speechifying by senators. 

Their actions -- which included initially only Sen. Dick Durbin, D-Ill., showing up to the committee's initial markup and making a motion to end the meeting because there are two minority members needed for a quorum -- appear to fulfill a promise from Senate Minority Leader Chuck Schumer, D-N.Y., that Democrats "will not supply the quorum. Period," and that they will do everything they can to delay Barrett's confirmation. 

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"Under the rules of this committee you cannot proceed with the business of the committee, even with a quorum present, unless there are two members of the minority present as well," Durbin told Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., at the start of the meeting. "I want to take official note of the fact that I am the only member of the minority that is here."

Graham introduced the motion anyway and scheduled a vote on Barrett for 1 p.m. on Oct. 22 before other Democratic senators began to filter in. 

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Sen. Richard Blumenthal, D-Conn., then made a motion to indefinitely delay the vote on Barrett, which tipped off debate from multiple senators, including from Democrats and accusations of hypocrisy, criticism of Barrett, criticism of the process this close to the election and reprisals of Democrats warnings that Barrett might decide to overturn the Affordable Care Act (ACA). 

Blumenthal's motion eventually failed, but not after the hearing had essentially been delayed for two hours. 

"I believe that this rush, sham process is a disservice to our committee," Blumenthal said. "There has never been a nomination in an election year after the month of July."

"This is a sham," Sen. Amy Klobuchar, D-Minn, added, before referencing the fact that Senate Majority Leader Mitch McConnell, R-Ky., blocked Obama Supreme Court nominee Merrick Garland in 2016. "He said the American people should have a voice in this election, of their next Supreme Court justice."

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"It's going to create a lot of bad will that doesn't need to be created," Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif., warned.

Graham began to express his frustration, saying that he hoped to question the witness panels the committee had assembled Thursday. But he added that he will allow all senators to have their time to make their motions and give their speeches. 

"I will let you decide what you do today. We're going to vote on the judge on Oct. 22," Graham said. "But I would prefer if it's possible we could hear from the panel, but I'll leave it up to my colleagues."

While the speeches continued, Graham later added: "I'm happy to stay here until 1 o'clock, October the 22nd."

Democrats, as they slammed both Barrett and the process that brought her nomination to this point, began to make the debate about right and wrong and hypocrisy. 

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"There is really no way to gloss over how wrong or baseless this process is, perhaps even irreparable," Sen. Patrick Leahy, D-Vt., said. Blumenthal then accused Republicans of hypocrisy for advancing the Barrett nomination after saying they would not in the last year of a Trump administration, to which Sen. John Kennedy, R-La., took objection. "You know I respect you," Kennedy said. "But you just accused me to breaking my word ... I think the record will confirm that I never made that commitment."

Blumenthal responded that he did not accuse Kennedy of that, but that other Republicans, including Graham, had. Graham admitted that he had said he wouldn't move to confirm a final-year Trump nominee. But he noted that he'd changed his position well ahead of the death of late Justice Ruth Bader Ginsburg in reaction to the confirmation of Justice Brett Kavanaugh. 

On the ACA, Sen. Maize Hirono, D-Hawaii, called the concept of "severability," which Barrett discussed at length on Wednesday, potentially indicating that she might not decide to overturn the ACA, a "smokescreen."

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"She didn't invoke severability when she criticized [Chief Justice John] Roberts for as she put it 'pushing the limits of the Constitution' to uphold the Affordable Care Act," Hirono said. "If [Roberts] had followed her reasoning, he would have fought to strike down the Affordable Care Act."

Hirono ignored that Congress changed the individual mandate since Barrett made her criticisms about the ACA. But she correctly noted that President Trump and the Republicans behind the lawsuit aiming to strike down the ACA, which is scheduled to be argued on Nov. 10, are arguing that the individual mandate is not severable from the rest of the ACA. 

That began more criticism of Trump from Democrats, including on his comments that he wanted a justice on the court in case there is an election-related dispute. 

"This is not on the level," Sen. Chris Coons, D-Del., said of the ACA. "This is about the president's disastrous response to a pandemic and a decade-long unfilled pledge to overturn protections ... in the middle of a pandemic."

"I am not suggesting that she's engaged," in anything improper with Trump, Coons added. "It was the president's conduct himself that has put this issue in front of the American people"

Coons also slammed Barrett for not committing to recusing herself from any election-related Supreme Court case simply because Trump nominated her, a move that would be extremely unusual given the standards for justices to recuse themselves.

Democrats also said that they were concerned about many of Barrett's non-answers on issues she said could come before her on the court so therefore she could not opine. 

"To not be able to answer whether you believe in the peaceful transfer of power," Sen. Cory Booker said, was "stunning."

Booker also asked for Republicans to show "grace," citing moments in American history when people have had the authority to do something but then chose not to.

"The rule of because we can ... is one that leads away from a lot of the traditions and commodores and values," of the traditional Senate, Sen. Sheldon Whitehouse, D-R.I., said, picking up on Booker's point. "Don't think that when you have established the rule of 'because we can' that when the shoe is on the other foot that you will have any credibility ... your credibility to make that argument at any time in the future will die in this room and on the Senate floor."

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Durbin, as debate continued on Blumenthal's motion, began to lament both the proximity of the nomination to the election and the answers Barrett gave during the previous two days of hearings. 

"I would be afraid to ask her about the presence of gravity on Earth," Durbin said, "may come up in a case someday."

"She's denied that she even has a view on climate change," Durbin said. "We are defying our own tradition, common sense ... this nomination at this moment in time is not usual, not normal and it's beneath the dignity of this committee."

"I personally reject the idea that she wasn't forthcoming," Graham said before accusing Democrats of just aiming to attack Trump and having no real argument against the nominee. "The game has been since she was nominated to get back at Trump ... If anybody in America is ready to go to the Supreme Court it's Amy Barrett."