Amy Coney Barrett will be grilled during her Supreme Court confirmation hearings. But four Republican senators may have the most on the line.
The upcoming hearings could give Sens. Thom Tillis, Joni Ernst, John Cornyn and Lindsey Graham a chance to garner national attention in the midst of their competitive races — providing them a significant platform while they are pulled off the campaign trail for official Senate business.
But developments since President Donald Trump and a handful of key GOP senators tested positive for coronavirus also raise questions about how these endangered lawmakers will handle the hearing. Since Friday, Tillis and Sen. Mike Lee — another Judiciary panel member — have tested positive for COVID-19 and will quarantine for 10 days. The Judiciary Committee does not intend to delay the proceedings, which are slated to begin Oct. 12, though Senate Majority Leader Mitch McConnell suggested Saturday that the hearings could be at least partly remote.
With the Senate GOP majority in peril, Republicans view the Supreme Court confirmation fight as an opportunity to energize conservative voters, particularly as Trump lags behind Joe Biden in most national polls and faces criticism for his response to the coronavirus crisis. Unlike previous confirmation hearings, this one is taking place just weeks before Election Day on an uncharacteristically fast timeline. Public polling suggests that the majority of Americans want the Supreme Court seat filled after the election.
Graham, the chair of the Judiciary panel and a close Trump ally, faces an unexpectedly tight race with Democrat Jaime Harrison. While South Carolina is still considered a lean red state, several polls have Graham and Harrison tied. Meanwhile, both Ernst and Tillis are in toss-up races in Iowa and North Carolina that could decide control of the Senate and Cornyn is likely in the most challenging reelection bid of his career in Texas politics.
In an interview, Graham suggested that the hearings could help his closing argument.
"If you ask me what's the most important thing I could be seen as doing in South Carolina? Confirming a Supreme Court justice, a conservative justice,” Graham said. “It doesn't hurt me at all to be doing my day job for something this important.”
Contentious Judiciary panel hearings can lead to viral moments, such as when an enraged Graham accused his Democratic colleagues of “the most unethical sham” he’d seen in politics during Brett Kavanaugh’s confirmation hearings. Graham even mentioned the moment during a debate Saturday night with Harrison, suggesting his opponent’s fundraising was “about liberals hating my guts because I stood up for Kavanaugh.”
Those moments can be risky to incumbents, and Democrats argue they could backfire. Democrats are also raising records amounts of money off the confirmation fight. ActBlue, a digital fundraising platform used by many Democratic candidates, saw tens of millions of dollars in donations after the death of Justice Ruth Bader Ginsburg. Barrett's confirmation hearings will likely be widely watched — more than 20 million people tuned into Kavanaugh's confirmation hearing.
So far, Senate Republicans up in 2020 are betting that Democratic opposition to Barrett will inflame tensions on the committee, suggesting that a contentious hearing will help their campaigns.
“I’m not a viral kind of guy but I could see some people going off the rails and alienating some people,” said Tillis (R-N.C.), who faces Democrat Cal Cunningham, a prolific fundraiser.
“The one thing that we saw in the Kavanaugh hearing is how crazy the left gets,” added Cornyn (R-Texas), who is facing Democratic challenger MJ Hegar. “They can’t help themselves. That will help me persuade that they should not be given the power to govern.”
Democrats have universally called for the confirmation to wait until after the election, and reiterated those calls after Lee tested positive for coronavirus. Democrats have pointed to public polling, both nationally and in some contested Senate races, showing that voters think the next president should nominate a justice, and say the high-profile hearings will harm the GOP.
“When [Cornyn] has the spotlight on him, he says things that really show us who he is,” Hegar said in an interview. “When Texans have an opportunity to see who he is, that is not good for his campaign.”
Hegar further cited that Cornyn questioned whether individual police brutality cases constitute systemic racism. Cornyn made the remarks at a Judiciary Committee hearing over the summer in the aftermath of the killing of George Floyd, prompting Democrats in Texas and nationally to condemn his remarks.
The hearings will also draw attention to Sen. Kamala Harris, the Democratic vice presidential nominee, who has developed a reputation for tough questioning of Trump nominees. During the most recent Supreme Court confirmation hearing, Harris drew praise from Democrats when she grilled Kavanaugh about special counsel Robert Mueller’s probe.
“She is always extraordinarily insightful,” said Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee. “I think she will do her job without regard to the immediate political consequences.”
But just as Kavanaugh helped Harris, Senate Republicans argued that Kavanaugh’s ugly confirmation fight amid sexual assault allegations against him helped them expand their Senate majority. (Several of the Democratic senators who lost reelection in that cycle were running in red-leaning states.)
Partisan sniping over Barrett’s Judiciary Committee confirmation hearings has already started. Senate Republicans are accusing Democrats of anti-Catholic bias toward Barrett, citing Sen. Dianne Feinstein (D-Calif.), the top Democrat on the panel, telling the nominee during her 2017 hearing for the 7th U.S. Circuit Court of Appeals that the “dogma lives loudly within you.”
Senate Democrats and Democratic challengers, meanwhile, are focusing their message on health care and the future of Obamacare. They argue that if Barrett is confirmed, the Supreme Court will strike it down. Prior to becoming a federal judge, Barrett criticized Chief Justice John Roberts’ move to uphold the law.
The Judiciary Committee hearings are expected to last three to four days. Graham indicated recently that the committee could vote to advance Barrett’s nomination by October 22, setting up a floor vote just days away from the election.
While the hearings and final vote means incumbents will have less time on the ground to meet with voters, Senate Republicans also note that the coronavirus pandemic has upended traditional campaigning, with many candidates increasingly relying on virtual events.
Sen. Ted Cruz (R-Texas) acknowledged that the hearings would take up time particularly for senators up in cycle, but views the Supreme Court as a net positive for Cornyn and other members of the Judiciary Committee.
“The voters expect us to do our jobs,” Cruz said. “I have long been a believer that good policy is good politics and that delivering on our promises to the voters. ... Delivering on the core promise of Republican senators to deliver strong constitutionalists I have believed has a tremendously positive impact on the polls.”
But others are less willing to speculate, noting that the Supreme Court fight is just one more controversial issue in a year that’s seen a global pandemic, an economic recession and nationwide protests over racial injustice.
“I listen to all these experts explain how this is going to impact the election, none of them have ever run for office in their life,” said Sen. John Kennedy (R-La.). “If they had they would understand this is an unusual political environment and I don’t know anybody who knows the answer to that question.”
James Arkin and Andrew Desiderio contributed to this report.
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