Amy Coney Barrett could yet provoke an electoral twist of fate

How will Americans remember the confirmation hearings of Amy Coney Barrett? For three days last week, the newest nominee to the US Supreme Court faced careful questioning from members of the Senate judiciary committee — the first step in what Republicans have promised will be a historically swift nomination process, ahead of the November 3 election. 

Republicans praised Ms Barrett’s historic candidacy as the first unabashedly pro-life woman to the Supreme Court and, potentially, the first mother of school-aged children to serve. Mike Braun, a Republican senator from Indiana, introduced Ms Barrett, a parent of seven, as “a legal titan who drives a minivan”. Critics fear the issue of motherhood will be used as a political weapon, warning that her faith-backed, conservative beliefs would clash with precedents on reproductive rights and gay marriage. 

Ms Barrett was composed and self-assured, refusing — politely — to be drawn on such issues, or on what role she, as a confirmed justice, might play in a disputed 2020 election, citing the rule of “no forecasts, no hints” that her predecessor, Ruth Bader Ginsburg, had given in her own confirmation hearing 27 years earlier. 

“If I give off-the-cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits,” Ms Barrett offered.

Naysayers will note that despite her declaration, Ginsburg was still willing to wade into issues such as abortion during her hearing. No matter. Ms Barrett’s reticence is unlikely to hurt her. Republicans are instead predicting it will help them in the election, with Ms Barrett serving as a more palatable figurehead for some voters than the current occupant of the White House.

As Lindsey Graham, the Senate judiciary committee’s Republican chairman who is locked in his own close race, put it: “I think the public will go into the voting booth and they’ll say: ‘OK, I’ve seen the kind of judges Democrats will nominate. I’ve seen the kind of judges Republicans will nominate.’ And that will be important.”

On the other side, Democrats have decried Republican hypocrisy in pushing forward Ms Barrett’s confirmation less than two weeks before an election when they denied former president Barack Obama the chance to confirm his own nominee eight months before the 2016 vote. And there is a chance Ms Barrett’s confirmation will motivate a higher Democratic turnout, while denting participation among Republicans who feel that with her confirmation imminent and a 6-3 conservative court majority all but assured, the issue is no longer worth fighting for.

Some GOP aides worry the proceedings could backfire against Republicans lower down the ballot. In addition to Mr Graham, two other Republicans on the Senate judiciary committee, Susan Collins of Maine and Joni Ernst of Iowa, face their own tough re-election races, with both down by more than four points according to an average of polls.

Ahead of the hearing I spoke to Patty Kish, a life-long Republican and undecided voter in the suburbs of Richmond, Virginia, who is pro-life. She thought Ms Barrett’s confirmation would clear her conscience to vote for Democrat Joe Biden in November. “In a way, it kind of relieves me,” she said.

Yet by the time Ms Barrett had finished testifying, Ms Kish had changed her mind. “I think the hearings have kind of caused me to kind of go back to my conservative roots,” she said. She was now planning either to cast a vote for Donald Trump or leave the top of the ticket blank. 

No one is more aware of the stakes — or of the existence of voters like Ms Kish — than Senate majority leader Mitch McConnell, who was initially vague about whether the confirmation vote would take place before or after November 3. A vote before the election, as now looks likely, could signal that even he has given up hope of Mr Trump holding the White House, and of endangered senators such as Ms Collins winning their seats. Or it could suggest there are enough voters like Ms Kish who, after watching Ms Barrett, have found themselves swinging back.

As remarkable as Ms Barrett is as a Supreme Court nominee, these hearings might be remembered less for the probable future justice than for everything that came afterwards. The question is what that might be. 

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This article has been amended since publication to correct a reference to Ruth Bader Ginsburg’s confirmation hearing

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