WASHINGTON — Going into Judge Amy Coney Barrett's Supreme Court confirmation hearings, progressives made clear they wanted to see fire from Senate Democrats. Instead, led by California Sen. Dianne Feinstein, Democrats largely gave them pleasantries.
Some on the left called the hearings evidence that Feinstein should step down as the top Democrat on the Judiciary Committee. But others say the approach was exactly what the party needed in the middle of an election in which control of both the White House and Senate is at stake.
President Trump's nominee to fill the seat of the late Justice Ruth Bader Ginsburg ended the week on a glide path to be confirmed before the Nov. 3 election. The committee scheduled a vote for Oct. 22 to send her nomination to the full Senate. Barrett, who says she shares the judicial philosophy of former Justice Antonin Scalia, would shift the court to a 6-3 conservative majority likely to last years.
It was clear even before the hearings that there was almost nothing outnumbered Democrats could do to prevent the Senate from confirming Barrett. But progressives wanted Democrats — and especially Feinstein — to create fireworks in hopes of casting the GOP's rapid timeline to seat Barrett as illegitimate, given Republicans' refusal to let then-President Barack Obama fill a court opening before the 2016 election.
But the California Democrat stayed in character through the four days of hearings, treating Barrett and Republicans politely, making small talk with Barrett about her career as a working mother of seven, and at one point remarking she was "really impressed" with the former law professor's answer about legalities surrounding the Affordable Care Act. She closed the hearings Thursday by thanking committee Chairman Sen. Lindsey Graham, R-S.C., for how he conducted the process and sharing a hug with him.
"This has been one of the best set of hearings that I've participated in," Feinstein told Graham. "I want to thank you for your fairness. … Thank you so much for your leadership."
Even California Sen. Kamala Harris, the Democratic vice presidential nominee, delivered a performance less memorable than her previous questioning of court nominees and Trump administration figures. Partially limited by her decision to appear virtually because two committee Republicans tested positive for the coronavirus, Harris also spent some of her time delivering campaign-style speeches that appeared more aimed at the broader electorate than progressives who wanted militant tactics to slow Barrett's confirmation.
Progressives were dismayed, particularly with Feinstein.
Brian Fallon, a former Senate aide who runs Demand Justice, an organization that works to push the judiciary to the left, called Thursday for Feinstein to step down as top Democrat on the committee.
"She has undercut Democrats' position at every step of this process, from undermining calls for filibuster and court reform straight through to thanking Republicans for the most egregious partisan power grab in the modern history of the Supreme Court," Fallon said in a statement.
The group's chief counsel and co-founder, Chris Kang, who helped run Obama's judicial nomination process, said the narrative at the end of the hearing was not about the rushed process, and called that a failing of Democrats.
"Thanking Sen. Graham is appalling, and it's sort of not that surprising as the rest of the committee often defers to the leadership of the committee, that we didn't see the kind of fight and fire that we hoped for," Kang said. "I think Republicans at times showed more outrage for their fictitious concerns than Democrats did for their actual outrage of what's happening to the Supreme Court right now."
And it wasn't just Demand Justice, which has long called for Feinstein's ouster, that was dissatisfied.
"Enough is enough, @SenFeinstein. You must end this charade, treat this hearing like the sham that it is, and do everything in your power to block Republicans' efforts to permanently change the country. This is not how an open democracy should be," the Sierra Club tweeted Wednesday.
Feinstein issued a statement Thursday saying that "the Senate is structured so the majority had absolute control over this process. When Republicans signaled they'd move ahead in the face of all objections, the only thing we could do was show this nominee would radically alter the court, and we accomplished that." She said she would vote against Barrett's confirmation.
Some progressives said Feinstein and other Democrats did exactly what they needed to do — keep the focus off themselves and on health care, an issue the party is trying to capitalize on in the elections. The Supreme Court will hear a case Nov. 10 on whether to overturn the Affordable Care Act, and Democrats argue Republicans are rushing to confirm Barrett so she can hear the case.
Marge Baker, executive vice president at the progressive group People for the American Way, said Democrats were right to focus their questioning largely on health care, often displaying photos of people to illustrate their points in the hearing room.
"I think Democrats did an excellent, excellent job of staying focused on the stakes for the American people, and those stakes are pretty scary," Baker said. "I think the posters they continuously had up in the room of people affected was really important. … It was very clear that this was a sham process."
Barrett was disciplined during senators' two days of questioning, declining to answer any questions about case law except what she had written about as a University of Notre Dame law professor or in opinions on the U.S. Seventh Circuit Court of Appeals.
But Baker said some of Barrett's nonanswers to Democratic questions spoke volumes.
Feinstein, for example, asked Barrett whether the president could unilaterally delay an election and whether Medicare was constitutional. Both times, Barrett said she could not comment on anything that could come before her as a judge.
Harris asked Barrett whether she agreed with Chief Justice John Roberts' line in a 2013 opinion that "no one doubts" that "voting discrimination still exists"; Barrett would only say that racism exists. In an answer to another Harris question, the nominee called climate change "a very contentious matter that is a matter of public debate."
Baker said that was the right message to leave with voters who watched.
"I think the Democrats did a really excellent job," she said. "First and foremost, the American people got to see Barrett's continued refusal to answer questions."
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