In Amy Coney Barrett Hearings, Democrats Are Walking Into a Minefield

Amy Coney Barrett will undoubtedly face an intense level of scrutiny at her upcoming Supreme Court confirmation hearing, though Democrats must tread carefully in their questions to avoid reflecting badly upon themselves.

Barrett was put forward for by President Donald Trump as his pick to replace the late Ruth Bader Ginsburg on the court last month, despite controversy over him doing so this near to an election.

During a confirmation hearing for her place on the U.S. Court of Appeals in 2017, Barrett was pressed on how her Catholic faith could impact decisions, Supreme Court precedent and matters such as Roe v. Wade.

These have now come up again, with questions raised over her nomination leaning SCOTUS further to the conservative side of thinking. This has even led to suggestions Democrats would consider packing the court if presidential candidate Joe Biden were to win in November.

What might the Democrats ask?

"I think Democrats are likely to bring up Amy Coney Barrett's faith and how that may affect her decision making on the bench. In her previous confirmation Democrats raised this as a point of concern, but knew fully that it didn't much matter, as he confirmation was assured, nobody was really paying attention, and many, many less qualified justices were also under consideration," David Andersen, assistant professor of United States politics at Durham University, told Newsweek.

"Now that the stakes have been raised to the highest possible level—a SCOTUS appointment, during a presidential campaign, to swing the court heavily in favor of conservatives for a generation, all under extremely contentious circumstances—these considerations are more relevant and important to politicize."

"Broadly speaking, they'll ask about Barretts's general views on deciding cases — particularly, her preference for an 'originalist' understanding of the Constitution and her textualist approach to interpreting statutes. Of course, they'll also touch on central issues of the day - including Obamacare, abortion, LGBTQ+ rights, affirmative action, and so on - to gain as much insight as they can about she might rule in a future high-stakes case involving these topics," Thomas Gift, a lecturer in political science and founding director of the Centre on U.S. Politics at University College London, told Newsweek.

Jennifer Holdsworth, a lawyer and Democratic strategist, told Newsweek she thinks the Democrats should focus on healthcare—a line of questioning that is expected to be pertinent due to the ongoing coronavirus crisis.

"Democrats should focus on healthcare as much as possible," she said. While she also suggested queries over Barrett's views on privacy under the 4th amendment could be a route to go down.

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Judge Amy Coney Barrett, President Donald Trump's nominee for the US Supreme Court looks on as she meets with Senator Ben Sasse (R-NE)(off frame) on Capitol Hill in Washington, DC on October, 1, 2020. Tasos Katopodis/AFP via Getty Images

Notes of Caution

While Democrats will want to push on several points, they will likely look to be cautious when it comes to focusing too hard on Barret's religion.

"I'd expect Democrats to tread lightly around any line of questioning that might be perceived as probing too directly into how Amy Coney Barrett's faith might affect her jurisprudence. Not only are her religious convictions immaterial to the central question—whether she'd apply the US Constitution fairly—but making her faith a flashpoint for controversy could risk political backlash," Gift continued.

"Not only would it galvanize the Christian right, but it could also alienate moderate and left-leaning voters opposed to any efforts that might be construed as exploiting Barrett's religiosity for partisan gain.

"Democrats need to strike a delicate balance—challenging Barrett with tough questions that satisfy the Democratic base, while at the same time not coming off as hostile or overtly partisan."

Offending certain demographics could be one risk the Democrats face should they push too hard in certain directions.

"Democrats are going to want to avoid offending women viewers with their questioning, but otherwise are going to do everything they can to badger her, bait her into saying something offensive, or in some way give them fodder for campaign commercials," Andersen said. "It is going to have all the nastiness of a political campaign because that is what it really is."

Holdsworth said she believes the Democrats will have no problem asking questions which play to their base—though urged some caution in how they do so.

"The Democratic Senators will be brilliant in getting their questions across to satisfy their base so close to an election, but they must keep in mind that they must do no harm to independents and swing voters who are paying closely attention, and do not want to see these hearings devolve into a circus," she said.

"It may not be fair that the blame for that would be laid at the Democrats feet, but it will be if not handled correctly."

The Election's Impact

That said, while Democrats will want to avoid descending too much into a partisan deconstruction of Barrett, they may consider this an opportunity for political gain.

"What's important to keep in mind is both the purpose and the audience for these hearings," Gift, of University College London, said.

"Although Democrats are interested in probing the judicial philosophy and temperament of Barrett, we shouldn't forget that they're also speaking to voters—both their own constituents, as well as citizens across the country. That's especially true in an election year, when the battle over Justice Ginsburg's replacement is likely to take on outsized significance in the run up to the 2020 election."

Andersen, of Durham University, agreed that the focus is not going to be on Barrett's suitability for the role in terms of qualification in a legal sense.

"This confirmation is not purely about fitness to serve, and SCOTUS appointments arguably have not been about that for some time now. This confirmation is about partisan politics and motivating supporters to vote on Election Day. Republicans are going to rally around Barrett and argue that her appointment is about ending abortion in America and putting religious values on the bench—things that will motivate evangelicals to get out and vote. Democrats are going to attack her for holding extreme religious views, opposing women's rights and for accepting an appointment that is being illegitimately made," Andersen said.

Regardless of how they choose to press, the tone of the hearing looks set to be incredibly tense.

"This confirmation is going to be extremely personal, bitter and hostile. Democrats are going to want to avoid offending women viewers with their questioning, but otherwise are going to do everything they can to badger her, bait her into saying something offensive, or in some way give them fodder for campaign commercials. It is going to have all the nastiness of a political campaign because that is what it really is," Andersen said.

"I think the Democrats will try to avoid attacking her directly, but they will question her over ever belief she has, everything she has done as a justice, and every possible reason why she might not be fit for office."

Newsweek reached out to the White House for comment on the potential questions faced by Barrett.