1. Conservatives are highlighting Barrett’s gender
Right before an election in which Trump is struggling with female voters, particularly in the suburbs — and that could bring down Senate Republicans on the ballot with him — they have a nominee who they hope can mitigate the damage. (A new Washington Post-ABC News poll shows Biden holds a 23-point advantage over Trump among female likely voters.)
Barrett is more conservative than most of these voters who are moving away from Trump. Another Washington Post-ABC News poll shows a consistent majority of Americans want the Supreme Court to uphold Roe v. Wade protecting abortion rights. She personally opposes abortion.
But Barrett is also a working mother of seven school-aged children. And to the extent Republicans can hold up her nomination to show they’re not anti-feminist, they’re doing it.
“This is history being made, folks,” Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) told her Wednesday. “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology. And she is going to the court, where there is a seat at the table waiting for you. And it will be a great signal to all young women who share your view of the world that there is a seat at the table for them.”
2. There’s a battle over whether Barrett can be characterized as extreme
Democrats have spent much of this hearing using Barrett’s conservative views to argue she would vote to overturn abortion rights, health-care protections, LGBT rights, gun rights and voting rights. Barrett couldn’t bat much of that down because she won’t say much on these issues. She is trying to appear impartial on matters that could come before the court.
So on day two of questioning, Democrats started pointing to the many times the late Justice Antonin Scalia — whose judicial philosophy Barrett has embraced — argued that Obamacare should go, or that a reinforced Voting Rights Act isn’t necessary, or that abortion rights should be questioned. Some Democrats even argued she could rule that in vitro fertilization should be unconstitutional, since Barrett signed her name to a 2006 antiabortion newspaper ad by a group that has also compared IVF to manslaughter.
“I think this is really important because it shows the basic philosophical bent of an individual,” Sen. Dianne Feinstein (D-Calif.) said as she questioned Barrett on the Voting Rights Act.
Sen. Patrick J. Leahy (D-Vt.) pointed out that in 1,800 pages of writing Barrett submitted to the committee, she has yet to say anything in favor of Obamacare — instead writing critically as a law professor about the Supreme Court’s previous decisions to uphold it.
Republicans recognized that under this questioning, Barrett risked being viewed as more extreme after these hearings than she was going into them.
So they picked her argument that that she couldn’t single-handedly change laws as a justice. Graham, for example, coaxed her to talk about how criminalizing IVF would be up to a legislature, not a court. And he and other Republicans led her to discuss how she might vote in favor of keeping Obamacare in place.
“So it is not fair,” Sen. John Cornyn (R-Texas) said, concluding his last round of questioning, “to suggest that by confirming you to the position, this will adversely impact the lives of these individuals [who rely on the ACA]?” Barrett responded she would keep an open mind.
Republicans have the votes to confirm Barrett to the court, but they also don’t want to risk losing more moderate Republican senators — or doing worse in public opinion than they already are on this. Two GOP senators who tend to support abortion rights, Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), are already potential “no” votes on her confirmation.
3. Barrett isn’t able to distance herself from Trump
The central tension in Barrett’s hearing, as it has been for other Trump nominees, is whether her attempt to remain an impartial judge means she can’t comment on common-sense legal matters.
Democrats, knowing that, still asked her questions about the president potentially abusing his power. And they got answers like this:
Leahy: Does the president have a right to pardon himself for a crime? We saw this after President Nixon’s impeachment.
Barrett: So far as I know, that question has not been litigated or arisen.
They also asked: Can the president legally delay an election? On Tuesday, she wouldn’t clearly say. Is voter intimidation illegal? She didn’t clearly say.
On Tuesday, Barrett said she would be nobody’s “pawn” on the Supreme Court when she was questioned about whether she’d weigh in on decisions over the presidential election. But it’s potentially troubling for vulnerable Senate Republicans trying to distance themselves from Trump that Barrett hasn’t been able to do that, either.