Senate kicks off fight over Trump's Supreme Court pick

The Senate is teeing off an explosive fight over the future of the Supreme Court just three weeks before Election Day.

Judge Amy Coney Barrett will step into the national spotlight Monday morning when the Senate Judiciary Committee begins a four-day hearing for her nomination to fill the seat left vacant by the death of Justice Ruth Bader GinsburgRuth Bader GinsburgBill would honor Ginsburg, O'Connor with statues at Capitol Supreme Court's approval rating dips to 49 percent  Anti-abortion movement eyes its holy grail MORE.

The battle is the latest twist in an already chaotic election year that has seen an impeachment trial, a global health pandemic, a subsequent recession and, more recently, President TrumpDonald TrumpFive takeaways from the Ohio special primaries Missouri Rep. Billy Long enters Senate GOP primary Trump-backed Mike Carey wins GOP primary in Ohio special election MORE and dozens in his orbit becoming infected with the coronavirus.


“We’re in an utterly different context. ... We’re in the middle of a pandemic and a public health crisis and a presidential election that has already started,” said Sen. Christopher CoonsChris Andrew CoonsThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions Graham's COVID-19 'breakthrough' case jolts Senate Lack of transatlantic cooperation on trade threatens global climate change goals MORE (D-Del.), about the confirmation hearing. “There is no precedent.”

Tensions are already running high among senators, and in the country, just 22 days before the Nov. 3 elections, setting a volatile backdrop for a hearing that is expected to touch on hot-button issues like abortion and health care with a nominee who could shape the future of the court for decades.

Sen. John CornynJohn CornynMcConnell warns Schumer cutting off debate quickly could stall infrastructure deal GOP skepticism looms over bipartisan spending deal Biden's bipartisan deal faces Senate gauntlet MORE (R-Texas), a member of the Judiciary Committee and adviser to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOvernight Health Care: Florida becomes epicenter of COVID-19 surge | NYC to require vaccination for indoor activities | Biden rebukes GOP governors for barring mask mandates McConnell warns Schumer cutting off debate quickly could stall infrastructure deal Top House Democrat says party would lose elections if they were held today: report MORE (R-Ky.), said the fight would be like the political bloodbath that was the 2018 confirmation battle over Justice Brett KavanaughBrett Michael KavanaughSarah Palin says she's praying about running for Senate against Murkowski Top House Democrats call on Biden administration to extend eviction moratorium On The Money: Biden asks Congress to extend eviction ban with days until expiration | Economic growth rose to 6.5 percent annual rate in second quarter MORE but "on steroids."

Sen. Ted CruzRafael (Ted) Edward CruzUp next in the culture wars: Adding women to the draft Biden's bipartisan deal faces Senate gauntlet 228 Republican lawmakers urge Supreme Court to overrule Roe v. Wade MORE (R-Texas), another member of the committee, predicted that the hearing would be a “circus.”

With the election looming, Republicans hope the next four days will provide a megaphone to shore up support for GOP Sens. Joni ErnstJoni Kay ErnstSeven-figure ad campaign urges GOP to support infrastructure bill Overnight Defense: Biden administration expands Afghan refugee program | Culture war comes for female draft registration | US launches third Somalia strike in recent weeks Grassley pressured to run as Democrats set sights on Iowa MORE (Iowa), Thom TillisThomas (Thom) Roland TillisSeven-figure ad campaign urges GOP to support infrastructure bill Graham's COVID-19 'breakthrough' case jolts Senate Biden's bipartisan deal faces Senate gauntlet MORE (N.C.) and Lindsey GrahamLindsey Olin GrahamThe Hill's 12:30 Report - Presented by AT&T - Simone wins bronze with altered beam routine The job of shielding journalists is not finished The Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions MORE (S.C.), the Judiciary Committee chairman, in their tough reelection bids.


Sen. Kamala HarrisKamala HarrisKamala Harris and our shameless politics Pelosi: House Democrats 'ready to work with' Biden on eviction ban Meghan McCain predicts DeSantis would put Harris 'in the ground' in 2024 matchup MORE (D-Calif.) — the Democratic vice presidential nominee known in the Senate for her prosecutorial questioning style — will be under close scrutiny as Republicans hope for any missteps that could be used against Democratic presidential nominee Joe BidenJoe BidenFive takeaways from the Ohio special primaries FDA aims to give full approval to Pfizer vaccine by Labor Day: report Overnight Defense: Police officer killed in violence outside Pentagon | Biden officials back repeal of Iraq War authorization | NSC pushed to oversee 'Havana Syndrome' response MORE.

Democrats, meanwhile, are preparing to use the national stage to grill Barrett on her positions on issues such as health care, abortion rights and whether she would recuse herself from election-related cases, something she has so far refused to commit to.

Democrats view health care as a favorable issue that allows them to both dig into Barrett’s background and try to go on the attack against Republicans. The Supreme Court is set to hear a case that could determine the fate of the Affordable Care Act a week after the election, providing Democrats with an opening to put it front and center in both their battles for the Senate majority and the White House.

“They are determined to fill Justice Ruth Bader Ginsburg’s seat with a conservative justice as quickly as possible because of the oral arguments on Nov. 10,” Sen. Dick DurbinDick DurbinMcConnell warns Schumer cutting off debate quickly could stall infrastructure deal Congress should butt out of Supreme Court's business Inmates grapple with uncertainty over Biden prison plan MORE (D-Ill.) told reporters on a press call. “If they succeed, 20 million Americans would lose their health care.”

Barrett’s views on Roe v. Wade are also getting fresh scrutiny after a 2006 anti-abortion ad signed by Barrett, who was then a professor, was omitted from records provided to the Judiciary Committee.


But Democrats are also eager to avoid giving Republicans any fodder in the final stretch before Election Day. For that reason, they are expected to avoid raising Barrett’s religion.

“I don’t intend to question her about her personal views, her private religious faith or views. I don’t expect my colleagues will either,” Coons said.

Democrats warn that stumbling onto that political landmine would only feed GOP talking points. Republicans have been eager to point in recent days to an exchange from Barrett’s 2017 circuit court confirmation hearing about her Catholic faith. Sen. Dianne FeinsteinDianne Emiel FeinsteinNearly 140 Democrats urge EPA to 'promptly' allow California to set its own vehicle pollution standards Biden signs bill to bolster crime victims fund Stripping opportunity from DC's children MORE (D-Calif.), the ranking member on the committee, told Barrett at the time that “the conclusion one draws is the dogma lives loudly within you” as she questioned if Barrett would be able to separate her religious views from her job as a judge.

In many ways, the hearing will be unlike any other in modern history. The Capitol has been closed to the public since March, meaning members of the public will not be allowed in the room. That means protesters who lined the hallways and disrupted hearings during the contentious fights over Kavanaugh and Justice Neil GorsuchNeil GorsuchNo reason to pack the court Democrats under new pressure to break voting rights stalemate Trump 'very disappointed' in Kavanaugh votes: 'Where would he be without me?' MORE will be limited to gathering outside.

Some senators on the committee, including those who recently tested positive for COVID-19, are expected to appear remotely — a first for a Supreme Court hearing.

Democrats have used a recent coronavirus outbreak in Washington to try to build public pressure on Republicans to either delay the hearings or require testing for those in the room after three GOP senators, including two members of the committee, tested positive for the coronavirus. An additional two members, Cruz and Sen. Ben SasseBen SasseWhite House cyber chief backs new federal bureau to track threats Sasse calls China's Xi a 'coward' after Apple Daily arrest Defunct newspaper's senior editor arrested in Hong Kong MORE (R-Neb.), are self-isolating but have tested negative and are expected to return in person for part or all of the hearings this week.

“We urge you against unsafely moving forward with these hearings while no clear testing regime is in place to ensure that they do not become another super-spreader of this deadly virus,” Democratic Sens. Patrick LeahyPatrick Joseph LeahyThe Hill's Morning Report - Presented by Facebook - Biden sets new vaccine mandate as COVID-19 cases surge House clears .1 billion Capitol security bill, sending to Biden Senate passes .1 billion Capitol security bill MORE (Vt.), Cory BookerCory BookerWomen urge tech giants to innovate on office return Human rights can't be a sacrificial lamb for climate action Senate Democrats press administration on human rights abuses in Philippines MORE (N.J.) and Harris wrote in a letter to Graham on Friday.

Republicans have rejected those requests, arguing they are nothing but a stall tactic and that any senator who wants to participate remotely in the hearings will be able to do so.

"The first item of priority in the Senate is the Supreme Court. We have a stunningly outstanding nominee. We have a process to get through that nomination and we intend to put her on the Supreme Court in the next few weeks,” McConnell told reporters in Kentucky on Friday.

Barrett’s confirmation to the Supreme Court would help reshape the country’s judiciary, locking in a 6-3 conservative court. A Washington Post analysis found that if Trump was able to put a third justice on the bench, it would pave the way for the most conservative court since 1950. Another analysis found that Barrett, if confirmed, would be the third most conservative justice behind Clarence ThomasClarence ThomasAn obscure Supreme Court ruling is a cautionary tale of federal power Overnight Health Care: St. Louis reimposes mask mandate | Florida asks Supreme Court to block CDC's limits on cruise ship industry Florida asks Supreme Court to block CDC's limits on cruise ship industry MORE and Samuel AlitoSamuel Alito'Freedom-loving' conservatives stoked latest round of infection and death Bill would honor Ginsburg, O'Connor with statues at Capitol No reason to pack the court MORE.


But despite the historic nature of the Supreme Court fight, which would set a new record for the closest to a presidential election a justice has been confirmed, the outcome, absent an eleventh-hour surprise, appears prebaked.

Republicans nixed the 60-vote procedural hurdle for Supreme Court nominees in 2017, meaning Barrett only needs 50 yes votes, plus Vice President Pence to break a tie, if all senators are voting.

Republicans hold 53 seats, meaning McConnell can lose three GOP senators. Only two — Susan CollinsSusan Margaret CollinsGraham's COVID-19 'breakthrough' case jolts Senate The Hill's Morning Report - Presented by Facebook - Senate finalizes .2 trillion bipartisan infrastructure bill Schumer: Democrats 'on track' to pass bipartisan deal, .5T budget MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiGraham's COVID-19 'breakthrough' case jolts Senate Sarah Palin says she's praying about running for Senate against Murkowski Graham says he has COVID-19 'breakthrough' infection MORE (Alaska) — have said they do not believe a nominee should get a vote before the elections, and only Collins has specifically pledged that she would vote "no" if it is brought up before Nov. 3.

Democrats acknowledge that their leverage is limited and that without the support of four GOP senators they can’t block Barrett from being confirmed. Democrats are planning to boycott the committee votes if GOP senators are absent in order to deny Republicans the quorum they need to move forward under the rules. Senate Democratic Leader Charles Schumer (N.Y.) has also hinted they also have procedural levers they could pull to stall the process once Barrett’s nomination hits the floor.

"We will have many more procedural options when it comes to a vote in the Senate committee and a vote on the floor and we will use every tool in the toolbox,” Schumer said during a recent press conference in New York.


But Republicans have set an aggressive timeline to place Barrett on the bench before Nov. 3. Graham is expected to tee up a committee vote for Oct. 22. That would pave a way for a final confirmation vote by Oct. 29, five days before the elections.

“I support doing whatever is necessary to complete the task before us and confirm Judge Barrett and believe we will do so,” Cruz said. “If the Democrats engage in procedural shenanigans, which I think is quite likely, I believe the majority will do whatever is necessary to overcome those delay tactics and to complete the confirmation.”

Alexander Bolton contributed