Why Democrats were right to play it safe on Amy Coney Barrett's nomination

Supreme Court nomination hearings are as much about demeanour as they are about substance, writes US political correspondent Griffin Connolly

Liberals skewered Democratic Senator Dianne Feinstein for being too collegial with Chairman Lindsey Graham at the Amy Coney Barrett hearings. (Getty Images)

For Senate Democrats, the game plan for the confirmation hearings of Supreme Court nominee Amy Coney Barrett was a tricky one.

With no magic procedural bullet to sink the nomination, and with the upcoming 2020 elections as an ever-present backdrop to the hearings, they set out to accomplish four things:

1. Argue that the hearings were illegitimate — that senators and Ms Barrett shouldn’t have even been there in the first place, as millions of Americans continued casting early ballots and multiple GOP members of the panel showed positive on their Covid-19 tests.

2. Scold Republicans — as often and strongly as possible — for reversing themselves about seating a Supreme Court nominee in a presidential election year and ramming through Ms Barrett’s nomination after snubbing Barack Obama’s 2016 nominee, Merrick Garland, ostensibly for that very reason.

3. Demonstrate to viewers at home that Ms Barrett’s placement on the Supreme Court would likely be a scythe for Obamacare, broad access to abortions, gay rights, gun control legislation, and dozens of other liberal policy goals.

4. Do all of that while maintaining a sense of decorum and personal respect towards Ms Barrett as a person of eminent professional qualifications, even if they thought she had no business being there based on the political circumstances.

More succinctly: velvet glove, iron fist. Turn the Barrett hearings into a campaign messaging platform about protecting health care and women’s bodies.

While several prominent liberals called for the head of the top Democrat on the Judiciary Committee, California’s Dianne Feinstein, for complimenting Chairman Lindsey Graham on his “fairness” during the hearings — too much No 4, not enough Nos 1, 2 and 3 — the rest of the panel’s Democrats struck a more even balance, expressing their indignation with a steely determination.

Congressional hearings are as much about demeanour as they are about substance.

“Judicial confirmations are high theatre — a performance put on for the public and, more precisely, for those individuals and groups that most closely follow judicial selection issues,” said Amy Steigerwalt, a professor of political science at Georgia State University.

Those individuals and groups Ms Steigerwalt referred to include pro-choice and pro-life activists; LGBTQ advocacy groups and evangelical Christians opposed to gay marriage; and gun control and Second Amendment organisations.

The Barrett hearings reminded Americans that an opposition party can deliver strongly worded remarks without squawking over their colleagues or screaming at witnesses.

"This hearing is a sham. I think it shows real messed up priorities from the Republican Party,” said Minnesota Senator Amy Klobuchar, one of the most effective Democrats at cross-examining Ms Barrett throughout the week.

“To all Americans, we don't have some clever procedural way to stop this sham. To stop them from rushing through a nominee,” Ms Klobuchar said. “But I am here to do my job, to tell the truth.”

The shadow of Justice Brett Kavanaugh’s hearings from 2018, which laid bare an unprecedented mutual malice between Democratic senators and the nominee, loomed large over the Senate Democrats’ preparations for Ms Barrett’s hearings.

While majorities of Americans at the time disapproved of the way both Senate Republicans and Democrats handled the last-minute flood of sexual assault allegations against Justice Kavanaugh, public opinion polls found, it was Democratic incumbents in key swing states during the 2018 midterms who suffered the political consequences of the partisan mud-slinging.

The political tombstones of former Democratic Senators Heidi Heitkamp of North Dakota, Claire McCaskill of Missouri, and Joe Donnelly of Indiana have served as sombre warnings to Democrats whose political instincts may otherwise have told them to rev up the rhetoric against Ms Barrett and the GOP.

Several Republicans on the panel looked foolish at times blasting Democrats for things the GOP expected them to do — but which they actually restrained themselves from doing.

Democrats were playing the “politics of personal destruction,” Tennessee Republican Senator Marsha Blackburn claimed, despite the fact Ms Feinstein and others kept praising Ms Barrett’s family and home life, almost to uncomfortable excess.

Senators Ben Sasse and Josh Hawley repeatedly harangued Democrats for rolling out a “religious test” for Ms Barrett to hold public office, a test no Democrat ever actually administered.

In fact, it was Republicans who accounted for more than 9 out of 10 mentions of the words “religion,” “Catholic,” “Christian” and “faith” during the hearings, The Washington Post found.

“We saw a lot of Republicans preemptively trying to link Democrats’ questions to a sort of anti-religious belief, and I think Democrats were also concerned about saying anything that might give credence to that criticism,” Ms Steigerwalt said.

Ms Barrett’s questioning by Delaware Senator Chris Coons, a close Joe Biden ally who has espoused a similar reverence for the Senate’s traditions of decorum and bipartisan chumminess, encapsulated Democrats’ strategy not to assassinate Ms Barrett’s character and individual legal philosophy as the core problems of the hearing.

Rather, Mr Coons and the Democrats sought to convey, she represents the culmination of a comprehensive, years-long political agenda by the Republicans to stack the federal judiciary with young conservatives to hamstring future progressive Congresses and presidencies.

Even though Ms Barrett swore several times under oath that she made no explicit promises to Mr Trump or GOP senators about how she would rule on particular issues such as abortion rights and health care, that doesn’t make her any less of a political prop.

She has signalled her strict “originalist” interpretation of the Constitution on scores of occasions. It’s clear how she would rule on the hot-button issues of the day, even if she refused to say last week.

“I'm not suggesting you made some secret deal with President Trump, but I believe the reason you were chosen is precisely because your judicial philosophy, as repeatedly stated, could lead to the outcomes President Trump has sought,” Mr Coons said.

“I think that has dramatic and potentially very harmful consequences with regards to the election, the Affordable Care Act and long-settled rights.”

Ultimately, Ms Steigerwalt said, Democrats may not have been risking much even if they had dialed up the outrage machine at the Barrett hearings.

Ms Barrett was remarkably circumspect in her answers to Democrats’ questions about specific areas of the law, refusing to “pre-judge” any case that could come before her on the high court.

Many of her non-answers would have received more airtime on cable news shows in previous eras.

But three weeks before one of the most momentous presidential elections of the modern era, and with the Trump administration a daily tornado of news and controversy, there’s “only so much bandwidth voters, outside groups and the senators themselves have at this moment” to dedicate to the particulars of Ms Barrett’s nomination, Ms Steigerwalt said.

“No, I don’t think going harder would have risked their pursuit of the Senate majority, but I’m also not sure they failed in their mission,” she said.

“I think the reality is that … there was very little chance the outcome would be changed and they definitely raised all of the issues they wanted to. And, in many ways, got responses that validated their concerns.”