Any system can only bear so much, whether it is a bridge overloaded with heavy trucks or our government in a time of crisis. President Trump’s hospitalization for COVID-19 amid news that multiple members of the Senate Judiciary Committee have been infected by or exposed to the virus takes our government to a point where girders bend and cables snap. As we reel under the blows of a pandemic and a quasi-depression, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Lindsey Graham must call a halt to their hasty and illegitimate effort to install Judge Amy Coney Barrett on the Supreme Court. Their failure to do so would present a clear and present danger to the health and wellbeing of the American people.
As a former Senator who served for 16 years on the Judiciary Committee, I know Supreme Court confirmation hearings are all-consuming. The Senate, never the nimblest of entities, grinds to a halt, making progress on legislation extremely difficult. To conduct a confirmation process in circumstances in which in-person hearings would be difficult, dangerous, or more likely, impossible and then seat a nominee would delegitimize the Court in the eyes of many Americans.
COVID-19 has killed almost 210,000 Americans, sickened an estimated seven million more, and caused widespread economic dislocation and suffering. People are grieving, sick and frightened. Instead of this nomination, the Senate majority should focus on economic relief legislation and aid to millions of Americans who have lost their jobs or whose small business are on the brink of collapse as a result of the pandemic. They could even negotiate in good faith on legislation to improve health care for all as a deadly disease stalks the land. But they choose not to.
So what are they doing? Currently the Senate calendar and the mental energy of every Senator are monopolized by the McConnell-Graham plan to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court with a nominee whose views are far out the mainstream on many issues. The Right – from the White House to big business to the grassroots opponents of reproductive freedom and gun regulation – have their eyes on the prize of locking down the Court for a generation with a hard-right supermajority. They can all count, and they know that 6-3 is better for them than 5-4.
They plan to use the Court to strike at progressive achievements at every level of government. If this nominee joins the Court, she could provide the deciding vote in a case before the Court this term to strike down the Affordable Care Act and deny more than 7 million COVID survivors health coverage. Voting rights and civil rights are likely to be rolled back. Just as troubling are Judge Barrett’s extreme views on reproductive freedom and health care for women. Not just access to abortion, but contraception and other medical services generations of women – and men – have come to take for granted could become vulnerable to intrusive state and federal regulations, or even bans.
Even as Americans are voting in an election that will decide who the next president will be and who will control the Senate, McConnell and Graham continue to rush forward. It is clear to me that no hearing on a Supreme Court nomination should take place until the next President is inaugurated and a new Senate is seated.
But even if McConnell and Graham insist on insulting voters and defying the wishes of a majority of the American people and pressing ahead on the nomination, they must call a halt in the current utterly unstable environment. Hearings cannot go forward when we do not know the full extent of potential exposure caused by the President’s infection and that of Senator Mike Lee and exposure of many other senators. The health and safety of senators, staff, witnesses and other hearing participants must determine the schedule for any hearings that do take place.
Even more clear is that virtual hearings for a lifetime appointment to the highest court in the land are simply not an option. Both parties have admitted as much already, and all circuit court nominees have appeared in person during the pandemic. We cannot make an exception when the stakes are much higher for the American people with this Supreme Court nomination.
A thing that cannot be done adequately must not be done at all. Stop the madness. Put confirmation hearings on hold. Now.
Russ Feingold is President of the American Constitution Society. He served in the United States Senate for 18 years (1993-2011).
American Constitution Society, @acslaw, @russfeingold