Bench Memos

Law & the Courts

To the Senate Floor!

Senate Judiciary Committee Chairman Lindsey Graham attends a Senate Judiciary Committee meeting to consider authorization for subpoenas relating to the Crossfire Hurricane investigation on Capitol Hill, June 11, 2020. (Erin Schaff/Pool via Reuters)

Yesterday the nomination of Judge Amy Coney Barrett to the Supreme Court cleared another hurdle as the Senate Judiciary Committee voted to report her out to the full Senate. The vote predictably occurred along party lines, with all twelve Republicans present and voting for her at the Committee’s executive-business meeting.

In fact, the committee vote to report her out was unanimous, thanks to the decision of all ten of its Democratic members to boycott it. That showed unbridled contempt for the nominee, their colleagues, and the people they represent.

At last week’s business meeting, the committee had scheduled a vote on the Barrett nomination for 1 p.m. yesterday, but since the Democrats ultimately did not participate at all, Chairman Lindsey Graham obtained the consent of his present colleagues to go ahead with a vote in the morning instead.

Now the full Senate’s debate on the nomination can proceed. Majority Leader Mitch McConnell is expected to file a cloture motion during Senate floor proceedings today. Cloture is a procedure by which senators can limit the time it takes to consider a matter and force a vote, in this case for confirmation. Once filed, the cloture motion itself receives a vote after two days of Senate session.

Under McConnell’s anticipated schedule, which includes Senate floor proceedings through the weekend, a vote on cloture will occur on Sunday. Once cloture is invoked, which for judicial nominations requires only a simple majority of senators voting, additional consideration of the nomination will be capped at 30 hours. McConnell has announced that the floor vote on Judge Barrett’s confirmation will then take place on Monday, October 26.

Yesterday’s business meeting did not transpire without a stunt. All ten of the boycotting Democratic committee members filled their empty seats with large photos of people they maintain would be hurt by the demise of Obamacare — and, by innuendo, by Barrett. Call it demagoguery by proxy.

It was no more effective than demagoguery in person. Recall that from the outset of this process, Democrats threw out one lame argument after the other to try to stymie the nomination, disregarding history to make baseless arguments against filling the seat altogether and invoking the coronavirus even as they willingly conducted other Senate business during the pandemic.

None of those arguments stuck. And during Judge Barrett’s hearings last week, Democrats could not lay a glove on Barrett’s qualifications or her actual record, efforts to distort the latter notwithstanding. The nominee fielded hostile and repetitious questions with poise and patience — like previous nominees, refusing to take positions on issues that may come before the Court.

“I’ve been here a while, and I’ve never seen anyone more capable than Judge Barrett on the law,” Chairman Graham observed yesterday. He also noted the marginalization of conservative women, which Senators Joni Ernst and Marsha Blackburn had previously highlighted during this process. “It’s moments like this where you can tell young conservative women there’s a place at the table for you.”

Obviously, not every senator feels that way. For all of Judge Barrett’s stellar qualifications, her decades of hard work, and her unflappable grace and brilliance throughout this process, at the end of the day, the Democrats gave her the back of the hand.

Their petulant boycott showed the exact opposite of the traits of the nominee who — thank goodness — they were unable to stop.

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