Senators stir ghosts of Scalia and Ginsburg for Amy Coney Barrett hearing

Amid talk of originalism, harking to a time when only white men with property could vote, Republican ears pricked up

Depending on your point of view, the woman seated before the Senate judiciary committee for her first day of questioning was either the female Scalia or the anti-RBG. Or maybe, of course, both.

As proceedings commenced in a brightly lit and deeply sanitized hearing room, Amy Coney Barrett, Donald Trump’s third nominee to the supreme court, described herself as an originalist in the tradition of her mentor. Like the late Antonin Scalia, for whom she clerked, she subscribes to a theory of constitutional interpretation that attempts to understand and apply “meaning that [the constitution] had at the time people ratified it”.

That time was the 1780s, when only white and land-owning men could vote. Oddly, Scalia often produced opinions that delighted conservatives. Outside the Capitol on Tuesday, a group of conservative women gathered to sing and pray, hands extended heavenward.

Senator Lindsey Graham, the Republican committee chair, asked Barrett if it was appropriate to call her the “female Scalia”. She demurred.

“If I am confirmed, you would not be getting Justice Scalia,” she said. “You would be getting Justice Barrett.”

That, of course, is exactly what Democrats fear.

In several rounds of questioning, Democratic senators portrayed the would-be justice as a rightwing crusader, chosen to undermine the civil rights legacy of the justice she hopes to replace, Ruth Bader Ginsburg, a liberal icon, a world-famous champion of women.

Outside the Capitol on Monday, progressive activists had worn blood-red robes and bonnets, symbols of female oppression taken from The Handmaid’s Tale, Margaret Atwood’s dystopian novel.

Barrett has roots in a charismatic Catholic group, People of Praise, which has been cited as an inspiration for Atwood. Such citations are wrong, but in the hearing room on Tuesday Democratic senators nonetheless painted a determinedly dystopian picture, of an America ruled by a conservative court.

In their telling, millions – constituents with names, faces and gut-wrenching stories the senators took took pains to tell – stand to lose access to life-saving services provided by the Affordable Care Act; poor women who cannot afford to travel for an abortion will be forced to make dangerous choices; same-sex couples may no longer have the right to marry.

Barrett declined to answer questions on such issues – and in doing so, perhaps provocatively, cited RBG. A dictum Ginsburg set forth during her 1993 confirmation hearing: “No hints, no forecasts, no previews.”

“These are life and death questions for people,” insisted Dianne Feinstein of California, the ranking Democrat on the panel. Barrett’s repeated refusal to answer questions on abortion was “distressing” Feinstein said, noting that Ginsburg was far more forthcoming about her views on the issue.

“I have no agenda,” Barrett said, not for the first or last time.

But Donald Trump does.

The president chose Barrett from a list of what he called “pro-life” judges. He has said he hopes, even expects, the court will overturn Roe v Wade, the 1973 ruling that established the right to abortion.

The president has also insisted he needs a ninth justice on the court before the election, in case the result is contested.

“Who came up with this notion, this insulting notion, that you might violate your oath?” Dick Durbin, a Democrat from Illinois, wondered sarcastically, in response to Republicans’ accusation that his party was impugning Barrett’s judicial independence merely by asking where she stood on key issues.

“Where could this idea have come from? Could it have come from the White House? Could it have come from the president’s tweets of what he expects a supreme court nominee to do politically for him? That is where it originated.”

Despite it all, the hearing played out with an air of inevitability. Graham was clear. This was “the hearing to confirm Judge Amy Coney Barrett to the supreme court”, rather than the traditional opportunity to “consider” her nomination.

Committee chairman Lindsey Graham listens.
The committee chairman, Lindsey Graham, listens. Photograph: Getty Images

Because of the pandemic, some senators participated remotely. Cleaners sanitized the room during breaks. No members of the public were allowed in.

There were still signs and sounds of dissent. In the room, some Democrats wore masks or displayed accessories honoring RBG. Outside, protesters donned hazmat suits, a reminder the hearing was unfolding amid a pandemic, in the potential Petri dish otherwise known as Hart 216.

Supporters of Barrett, many of whom have worked assiduously for the day when Roe v Wade might no longer be law, were outside the Capitol too. On the side of a bus painted pink: “Women For Amy, #ShePraysSheVotes.”

These women expect Barrett to follow Scalia. But they also believe she has the potential to be the conservative equivalent of Ginsburg, a working mother as deeply religious as she is highly accomplished.

“All of the young conservative women out there, this hearing to me is about a place for you,” Graham said. Turning to Barrett, he said: “I hope when this is all over that there’ll be a place for you at the table, that there will be a spot for you at the supreme court like there was for Judge Ginsburg.”

For Democrats, as Sheldon Whitehouse put it to reporters moments before the gavel clacked, the proceedings were nothing more than “puppet theater”. If you were only paying attention to the show, the senator from Rhode Island warned, you were missing the story.


Lauren Gambino in Washington

The GuardianTramp

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