'Advice and Consent': How the Senate will vet Amy Coney Barrett

Washington, D.C. Newsroom, Sep 28, 2020 / 14:00 pm

President Donald Trump's nomination of Judge Amy Coney Barrett to the Supreme Court sets in motion a highly-anticipated confirmation process, less than six weeks before a presidential election.

Barrett's nomination is now referred to the Senate, where members of the Judiciary Committee will hear her testimony, ask questions, and call witnesses, as part of the process of "Advice and Consent" provided for in the Constitution.

After the hearings, the committee has several options with regard to Barrett's nomination. Members can vote to send her nomination to the entire Senate favorably, unfavorably, or without recommendation-or they can choose to take no action.

Once her nomination is sent to the entire Senate, the body will then deliberate and vote to consider her confirmation.

During Barrett's confirmation process to the Seventh Circuit Court of Appeals in 2017, she faced pointed questions about her religious beliefs on certain issues.

Sen. Dianne Feinstein (D-Calif.), ranking member of the committee, praised Barrett, noting that it was "amazing to have seven children and do what you do." However, she then called Barrett a "controversial" nominee, "because you have a long history of believing that your religious beliefs should prevail" over the law.

"You're controversial because many of us that have lived our lives as women really recognize the value of finally being able to control our reproductive systems," she said. "And Roe entered into that, obviously."

"And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that's of concern," Feinstein said.

Sen. Dick Durbin (D-Ill.) grilled Barrett over why she used the term "orthodox Catholic" in a 1998 article she co-authored as a law student, with law professor John Garvey. Durbin in 2004 was barred from receiving Holy Communion by a monsignor in Springfield, Illinois, because of his stance on abortion.

Looking to the example of recent Supreme Court confirmations, the entire process usually lasts between two to three months. Majority Leader Mitch McConnell (R-Ky.) has said that he will meet with Barrett this week and that the Senate would vote on her confirmation "in the weeks ahead," but did not specify a target date.

Senate Judiciary Committee chair Lindsey Graham (R-S.C.) has said that Barrett's confirmation hearings would begin Oct. 12, and "will last three to four days."

The first hearing will consist of opening statements by committee members and by Barrett, followed by members questioning her. "Testimony by those who know Judge Barrett the best and [by] legal experts is expected to follow," Graham's office announced.

Barrett is not expected to receive any support by Democratic senators, who argue that the confirmation should wait until after the election. Senators Mazie Hirono (D-Hi) and Richard Blumenthal (D-Conn.) have already said they will not meet with Barrett prior to the committee hearings, with Blumenthal tweeting that the nomination is part of an "illegitimate sham process, barely one month before an election."

Republicans hold a slight edge in the number of committee members and in the Senate as a whole, and so could confirm Barrett with party-line votes. However, Sen. Susan Collins (R-Maine) has already said she would vote no, and Lisa Murkowski (R-Alaska) has opposed a nomination before the election, though both have said they would meet with Barrett, according to POLITICO.

The two most recent court nominees have only been narrowly sent by the Judiciary Committee for a vote of the full Senate, with other nominees in the 1990s receiving unanimous votes in the committee.

Justice Neil Gorsuch was approved by an 11-9 vote in April of 2017, and Kavanaugh by an 11-10 vote in October of 2018 after a contentious set of hearings; senators considered allegations of sexual assault made against Kavanaugh dating back to his teenage years.

However, in the 1990s, several Supreme Court justices were approved by the committee by a unanimous vote, including Stephen Breyer and Ruth Bader Ginsburg who were each approved by an 18-0 vote in 1994 and 1993, respectively.

Two other recent nominees never even received a vote by the Judiciary Committee.

In 2016, President Obama nominated Merrick Garland to fill the vacancy caused by the death of Justice Antonin Scalia. Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Chairman Chuck Grassley (R-Iowa) decided not to support the confirmation that year because of the presidential election-an action that Senate Republicans are appearing to contradict in starting the confirmation process for Barrett before the presidential election on Nov. 3.

In 2005, nominee Harriet Miers also did not receive a vote by the Judiciary Committee, withdrawing her nomination 21 days after she was selected by President George W. Bush.

According to the Senate website, of the 163 nominations for the Supreme Court made since 1789, 126 were confirmed and seven declined to serve.

Traditionally, judicial nominees needed 60 votes in the Senate to survive a filibuster, a parliamentary procedure where one senator can hold up a vote. In 1968, nominee Abe Fortas was recommended by the committee during a presidential election year but his confirmation in the Senate was held up by a filibuster; President Lyndon B. Johnson subsequently withdrew his nomination.

In 2013 then-Senate Majority Leader Harry Reid (D-Nevada) changed the parliamentary rules and abolished the filibuster for many federal judicial nominees and executive appointments, in a move known as the "nuclear option."

Once Republicans gained the Senate majority in 2015, current Majority Leader Mitch McConnell has since used the move to confirm federal judicial nominees, including Supreme Court nominees Kavanaugh and Gorsuch.

(Story continues below)

Supreme Court confirmations have recently taken around two to three months. The proximity of Barrett's nomination to Election Day raises questions as to whether McConnell can secure a confirmation vote by Nov. 3, only 38 days after the nomination.

Not since the confirmation of Sandra Day O'Connor in 1981 has a justice been confirmed in fewer than 38 days. Nominee Robert Bork was defeated by a vote of 58-42 in the Senate in 1988 after 108 days, while the late Ruth Bader Ginsburg was confirmed by the Senate in only 42 days.