Calls to Postpone Amy Coney Barrett’s Hearing Are Disingenuous Stall Tactics

COMMENTARY Courts

Calls to Postpone Amy Coney Barrett’s Hearing Are Disingenuous Stall Tactics

Oct 7th, 2020 2 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
These disingenuous tactics will fail. Pool / Pool / Getty Images

Key Takeaways

Senate Judiciary Committee Democrats are trying anything they can think of to delay or block the Supreme Court nomination of Judge Amy Coney Barrett.

There is no record of Judiciary Committee Democrats objecting to those hearings in the various committees on which each of them serve.

Senate Democrats insist not only that the hearing is critical, but that the entire confirmation process depends on conducting that hearing in a particular way.

Senate Judiciary Committee Democrats are trying anything they can think of to delay or block the Supreme Court nomination of Judge Amy Coney Barrett. These disingenuous tactics will fail.

For example, they wrote the committee’s chairman, Sen. Lindsey Graham, R-S.C., on Oct. 3 to say that holding the hearing, scheduled to begin on Oct. 12, “threatens the health and safety of all those who are called upon to do the work of” the Senate. Questioning a nominee by video, they claimed, “ignores the gravity of our constitutional duty to provide advice and consent on lifetime appointments, particularly those to the nation’s highest court.”

This is 2020, not 1980.

Courts around the country have found ways to adjust their work in light of changing circumstances (see herehere, and here).  Similarly, Congress has more options than ever for adapting its legislative business, including committee hearings, even during a pandemic.  

Senate Majority Leader Mitch McConnell, R-Ky., points out that Senate committees have conducted more than 150 “hybrid” hearings over the last six months, in which members have been able to participate in-person or by live videoconference. Either way, it’s a live hearing.

Most committees have each held more than a dozen such hearings in recent months, the Judiciary Committee almost twice that number (for example, see herehere, and here). They know how to do it. There is no record of Judiciary Committee Democrats objecting to those hearings in the various committees on which each of them serve.

This complaint also exaggerates the significance of confirmation hearings. Meetings in which a Supreme Court nominee appears and answers questions from senators are not only optional, but a fairly modern addition to the confirmation process. The Senate confirmed more than a dozen Supreme Court nominations in the 20th century without hearing from the nominee and, in several instances, with no hearing at all.

Even today, while they can attract initial media attention, confirmation hearings are only a small piece of the process. On average, the days devoted to the hearing are only about 5% of the time between a Supreme Court nomination and confirmation. The rest, including news coverage, commentary, analysis by legal experts, and public access to a nominee’s record, can provide much more, and more meaningful, information. None of that is affected in any way by the pandemic.

Two years ago, Senate Democrats made a cringe-worthy spectacle out of the hearing for Supreme Court nominee Brett Kavanaugh. Even though he had not been before the Judiciary Committee since his appeals court nomination in May 2006, every committee Democrat announced opposition to his Supreme Court nomination before the hearing even began. The hearing was apparently completely irrelevant to their decision.

Today, though it’s been just three years since the Judiciary Committee examined Barrett’s qualifications for judicial service, Senate Democrats insist not only that the hearing is critical, but that the entire confirmation process depends on conducting that hearing in a particular way.

If anyone believes that Senate Democrats would support Barrett’s nomination if the hearing were held the old-fashioned way, I have some ocean-front property in Utah for sale.

This piece originally appeared in The Daily Signal