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Democrats can’t stop Amy Coney Barrett’s confirmation. They can show how she would take away our rights

The Supreme Court confirmation hearings for U.S. Circuit Judge Amy Coney Barrett will be an exercise in Kabuki theater.
(Rachel Malehorn )
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In January 2006, I testified before the Senate Judiciary Committee against the Supreme Court confirmation of Samuel A. Alito Jr. At a break in the proceedings, then-Sen. Joe Biden came up to me and said, “You know this is all an exercise in Kabuki theater. Everyone in this room knows that Sam Alito is going to be a very conservative justice. The Republicans are pretending that he has no ideology. The Democrats are trying to ask questions to trip him up or pin him down and he is too smart for that.”

Biden was correct: Alito was confirmed and has been a staunch conservative on the court.

Soon, the Judiciary Committee will embark on a new bit of theater: the confirmation hearings for Trump’s latest Supreme Court pick, Amy Coney Barrett. Once again, the outcome is a preordained conclusion. Senate Republicans already have announced that they are going to confirm her, and there is no doubt that she is going to be an extremely conservative justice.

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Since the hearings for Barrett don’t have even a semblance of open inquiry, should the Democrats even participate in this charade? I’m sure they are tempted to boycott the hearings as a way of protesting the stunning hypocrisy of the Republicans’ rush to confirm Barrett when just four years ago they blocked the confirmation of Judge Merrick Garland on the pretext that a president should not be able to pick a Supreme Court justice in an election year.

Refusing to participate might convey that message, but it also could make them seem petulant and failing at their duties. Instead, Senate Democrats should view the hearings as an important opportunity to demonstrate how Republicans are packing the court with justices on the far right-wing fringe.

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The Democrats need to approach the hearings strategically. It is a mistake to think that anything they say or ask has the slightest chance of blocking Barrett’s confirmation. It also is a mistake to think that Barrett is going to say anything meaningful. She is sure to repeat the platitudes all nominees fall back on, saying she is open-minded, will respect precedent and cannot discuss any issue that might come before the court.

What message then should Democrats seek to convey with their statements and questions? They should constantly remind everyone that this is an unprecedented power play by the Republicans. Just four years ago, Senate Majority Leader Mitch McConnell (R-Ky.) said, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” Many other Republicans, including ones on the Senate Judiciary Committee, said the same thing. Their words should be quoted often.

Democrats should also, through their questions, show that Barrett is going to be an extremely conservative justice and explain what that is going to mean for people’s lives in this country, particularly on issues of healthcare.

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After the Supreme Court upheld the Patient Protection and Affordable Care Act in 2012, Barrett was sharply critical of the decision and said, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” The issue of the constitutionality of the Affordable Care Act is back before the court in November, and it is quite possible that Barrett could join with Justices Clarence Thomas, Alito, Neil M. Gorsuch and Brett M. Kavanaugh to strike it down. About 21 million people would be at risk of losing their health insurance in the midst of a pandemic.

Barrett is a self-professed originalist, like the late justice she clerked for, Antonin Scalia. This is the view that a constitutional provision means the same thing today as when it was adopted. Democrats need to point out that originalists long have argued that Roe vs. Wade was wrongly decided and that Barrett almost certainly will be the fifth vote to overrule that landmark decision. Originalists reject any protection of gay and lesbian rights under the Constitution, and Barrett, before becoming a federal appellate judge, expressed opposition to same-sex marriage. Based on her writings, she is sure to vote to allow businesses and employers, based on a claim of religious freedom, to discriminate against gays and lesbians.

Barrett, of course, will refuse to answer questions about these subjects. But that should not matter: Democrats must politely, but firmly, explain to the American people that President Trump has appointed someone who is going to take away their rights.

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Amy Coney Barrett is as conservative as any federal judge in the United States. Trump picked her to please his political base. The Democrats, sadly, have no way to stop her confirmation, but they should use the process to leave no doubt in anyone’s mind what this is going to mean for the Constitution, the country and for people’s lives.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.

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