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Essential Politics: The bumpy road from Bork to Barrett

Supreme Court nominee Amy Coney Barrett wears a mask during her confirmation hearing on Capitol Hill.
Supreme Court nominee Amy Coney Barrett listens to members of the Senate Judiciary Committee during her confirmation hearing Monday.
(Associated Press)

The week’s big story might have been the second presidential debate — except that it was canceled. It could have been early voting, as Americans turn in absentee and mail ballots in record numbers. Or it could have been President Trump’s return to the campaign trail, just over a week after being hospitalized with COVID-19.

But the story that’s dominated Washington, even amid so much news, is the confirmation hearing of Amy Coney Barrett, Trump’s third nominee to the Supreme Court. A contentious four days of testimony before the Senate Judiciary Committee is now at its midway point. Never before has a justice been confirmed so close to a presidential election; in 2016, Republicans cited an election nine months away to block President Obama from filling a vacant seat.

Barrett’s nomination is the culmination of decades of partisan politics in which conservatives have succeeded in capturing control of the nation’s highest court, with far-reaching implications. Few people are better equipped to appreciate this than The Times’ David G. Savage, who has covered the court from The Times’ Washington bureau since 1986 — the year that President Reagan nominated Barrett’s mentor, the late conservative Justice Antonin Scalia.

While nominees for decades have dodged questions about how they might rule, Barrett came to her vetting with a long history of statements on controversial issues, including abortion rights, gun regulations and healthcare, Savage writes. And with her confirmation all but certain, giving conservatives a decisive 6-3 advantage, the court moves into uncharted territory.

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Outspoken on paper, mum in the Senate

The strategy for Supreme Court nominees picked by presidents of either party has long been the same: Avoid voicing political or judicial opinions, lest you compromise your credibility as an impartial justice — or put your Senate approval at risk. It’s a legacy that once prompted Justice Elena Kagan, then a law professor, to describe Supreme Court confirmation hearings as a “vapid and hollow charade.”

The practice dates to the Senate’s bipartisan rejection in 1987 of Robert Bork, another of Reagan’s nominees, a constitutional lawyer who was a favorite of conservative activists. As Savage wrote in 2012, Bork faced questions about his record at his Senate hearing and frankly shared his views on civil rights, voting rights and abortion. They did not play well, including with the broader TV audience. The Senate rejected his nomination, 58 to 42, and for years after, Savage wrote, presidents avoided nominees with long, controversial paper trails.

In Barrett, however, Trump chose a conservative judge who has been nearly as candid about her conservative views as Bork in the past. Yet in her hearing this week, she has held to the post-Bork tradition of tight-lipped testimony: Barrett dodged questions about her stance on abortion rights Tuesday. But Savage writes of her past advocacy: She signed a public letter in 2013 that condemned the “Supreme Court’s infamous Roe vs. Wade decision” and called for “the unborn to be protected in law.” In 2006, she signed on to a two-page newspaper ad that called for an “end to the barbaric legacy of Roe vs. Wade.” After Trump appointed her to the 7th Circuit Court of Appeals in 2017, she joined a dissent to a ruling that blocked an Indiana law to ban abortions based on a disability or deformity.

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On another hot-button issue — gun rights — she was the sole dissenter to a decision barring felons from owning firearms, writing that felons whose crimes were nonviolent should retain their 2nd Amendment right to bear arms. Savage writes that Barrett also has strongly indicated that she takes a less strict view of when to follow Supreme Court precedents, a legal principle known as stare decisis. She’s viewed as a champion by conservatives who want to see precedents such as Roe overturned.

At mid-week, Barrett appeared to have the support of at least 51 senators, a majority, Sarah Wire writes. Chances are high she’ll be confirmed before election day.

So what happens next?

We have two more days of hearings — today and Thursday. The senators will spend another day questioning Barrett on her record and judicial approach, and then hear from people who know her and from legal experts Thursday. You can follow along with our live blog.

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On a broader level, there are some other things we’re watching.

The fallout from this confirmation process could affect the outcome of several political races. Republican Sen. Lindsey Graham is presiding over the hearing as committee chair while struggling to maintain a solid lead in his bid for reelection in South Carolina, as Janet Hook wrote last week. California Sen. Kamala Harris, a Democratic committee member, is also in the midst of a major campaign as Joe Biden’s running mate, as congressional reporter Jennifer Haberkorn wrote, and California’s Sen. Dianne Feinstein, the committee’s senior Democrat, is facing skepticism from progressives on her approach to judicial nominees.

The stakes are underscored by the upcoming slate of cases at the Supreme Court, including one on the Affordable Care Act.

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The latest from the campaign trail

— It’s the final three weeks of a uniquely chaotic race, and both campaigns are sprinting to November, write Janet Hook and Noah Bierman. But as Biden campaigns in Ohio’s Trump territory, the president is a step behind, only cleared to travel on Sunday.

— Almost 10 million people have already cast their ballots. Every voter has different motivations, but plenty of Arizona residents told Seema Mehta that fear was one of them — fear their ballot will get lost or won’t be counted.

— There’s no presidential debate this week, after Trump declined to debate Biden remotely. But 60 years ago Tuesday, Richard M. Nixon and John F. Kennedy debated from opposite coasts, a historic move that also came amid the candidates’ distrust and suspicion, writes Stephen Battaglio.

— New polls: Brian Contreras writes that the latest numbers suggest Democrats may have a chance at taking the Senate, with favorable odds in states such as Arizona, Colorado and Iowa. Meanwhile, a new USC Dornsife poll found Trump’s performance at the first debate is still hurting him, writes David Lauter.

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The view from the ballot box

— Record numbers of voters are casting ballots by mail, and that means potentially record numbers of ballots thrown out over signature mismatches — one of the most common ways absentee ballots trip up voters. Arit John writes that could have big consequences this year.

— Trump has repeatedly encouraged his supporters to “watch the polls” for cheating, a call that’s been embraced by armed far-right groups, write national reporters Molly Hennessy-Fiske and Jaweed Kaleem.

— From 2020 reporter Michael Finnegan: Pennsylvania, one of the states most likely to decide the presidential election, is bracing for one of the slowest ballot counts in the country. Election experts fret that Trump’s baseless allegations of rampant voter fraud could sow chaos.

The view from California

— California elections officials on Monday demanded that Republicans remove private ballot-collection containers marked as “official” drop boxes, saying they are illegal under state law, write John Myers and Stephanie Lai. But the California GOP is pushing back against a cease-and-desist order from the state.

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— Prison inmates are eligible for pandemic-relief checks from the federal government, a judge in California ruled this week. State politics reporter Anita Chabria writes that inmates had been denied payments.

— How did The Times’ editorial board make its 2020 election endorsements? Editorial Page Editor Sewell Chan and seven other members of the board will explain the process in a live event tonight at 6 p.m. PST. (Friendly reminder that the board operates independently from the newsroom.)

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