Amy Coney Barrett's Supreme Court hearings lacked the drama that Brett Kavanaugh's proceedings had. Here's why.

Nicholas Wu and Christal Hayes, USA TODAY
·9 min read

WASHINGTON – The fighting in Congress over Amy Coney Barrett's confirmation to the Supreme Court started even before she was nominated.

Democrats warned of the precedent set if Republicans rushed through a nominee in the middle of a pandemic and presidential election, arguing no nominee should be considered until after voters cast ballots. They rattled off threats to slow the process, teasing a host of tools that could bog down the hearings, with some lawmakers even publicly suggesting launching impeachment proceedings against President Donald Trump.

Replacing Justice Ruth Bader Ginsburg, a liberal icon on the court, with Barrett, a staunch conservative, was gearing up to be a fight for the ages, with some speculating her nomination could lead to even more contentious proceedings than the hearings of Justice Brett Kavanaugh, which were nearly derailed in 2018 after sexual assault allegations.

But instead, the hearings in the Senate Judiciary Committee were largely drama-free, leaving Barrett unscathed and on track to be confirmed by the full Senate by the end of October. Democrats, while pressuring Barrett for her stance on issues, were at times warm and complimentary to the federal appeals court judge and her family. The four days of hearings even ended with a hug between the top Republican and Democrat on the panel.

“It was eerily smooth,” said Mike Davis, a former clerk for Justice Neil Gorsuch who worked as the top counsel for nominations on the Senate Judiciary Committee during Kavanaugh’s nomination.

“Frankly, I’m surprised that the Democrats aren’t being more aggressive,” he added. “It went from unhinged during Kavanaugh to like whipped puppies this time.”

But as the hearings ended Thursday, California Sen. Dianne Feinstein, the top Democrat on the panel, thanked Chairman Lindsey Graham, R-S.C., for his "fairness" during the hearings and praised the process.

"This has been one of the best Senate hearings I have ever participated in," she said.

Graham praised the conduct of senators on both sides, saying "I don't think anybody crossed the line with the judge in terms of trying to demean her as a person."

There were moments of tension, however. Democrats repeatedly called the hearings a "sham" and there was an attempt on the final to stop her nomination, which was shut down by the Republican majority.

More: Supreme Court nominee Amy Coney Barrett moves closer to Senate confirmation as hearing end

With so much at stake, why weren’t Barrett’s hearings contentious? Here are some of the reasons experts say led to more civility.

Democrats unable to block nomination

It took only days after Ginsburg’s death for Democrats to concede they could not do anything to halt Barrett’s nomination. As swing-state Republicans, one-by-one, got behind Trump’s nominee, it was clear Democrats would not have the votes to block her addition to the high court before Election Day.

Republicans outnumber Democrats in the Senate Judiciary Committee and the full Senate, which gets final say on Barrett's confirmation likely later this month. Since Barrett's nomination requires a simple majority of votes in each body, as long as Republicans vote together in support of the conservative justice, there's little Democrats can do to stop her nomination from moving forward.

“The fix is in,” said Boston College Law School professor Kent Greenfield, who added of Democrats, “at this point, there’s nothing they can do.”

Instead, Democrats tried to appeal to voters, urging them to cast ballots and stressing what another conservative justice on the court would mean for the future of the Affordable Care Act, which will be taken before the court in November.

But the hearings appeared to start with a foregone conclusion, seemingly stripping the hearings of the drama inherent at previous confirmations.

At one point during the hearings, Sen. Sheldon Whitehouse, D-R.I., appeared to reveal the inevitability of Barrett's ascension to the high court. While speaking about the need for tougher ethics and financial reporting requirements for Supreme Court justices, he told Barrett, "Take a look at that when you get up there."

More: Top Senate Judiciary Democrat Feinstein says she doesn't 'have the power' to block Trump's Supreme Court nominee

More: Supreme Court nominee Amy Coney Barrett strives to show independence from White House, Republicans

Sam Erman, a University of Southern California constitutional law professor, said he was struck by Democrats’ sense of “resignation” throughout the hearings.

“There simply were not the votes to stop these from going through,” he said.

That wasn’t the case two years ago with Kavanaugh, whose nomination was filled with last-minute drama that left his confirmation to the high court a mystery. Key senators stayed mum on how they would vote.

With Kavanaugh's future on the high court uncertain, lawmakers and advocates lodged a public-pressure campaign to block his appointment, an effort that was energized after sexual assault allegations surfaced against him.

In one remarkable moment, two female protesters followed then Sen. Jeff Flake, an Arizona Republican who served on the Senate Judiciary Committee, into an elevator and told him they were sexual assault survivors, pleading with Flake to vote against Kavanaugh’s confirmation. Hours later, Flake – a key swing vote on the panel – forced a delay in Kavanaugh’s appointment to allow for an FBI investigation of the allegations, though Flake ultimately voted in favor Kavanaugh-

This time, however, protesters weren’t allowed inside the building because of COVID-19 restrictions.

COVID pushed protests outside

Every few minutes, shouting would bring Kavanaugh's hearings to a halt. Protesters, some wearing all black or others with signs supporting Planned Parenthood, would stand up in the back of the large hall and scream, “Save Roe, vote no!” or “Health care is a human right!”

Each time, officers lined against the walls of the chamber would quickly dart for the protesters, dragging them out of the large wood-paneled room.

That was not the scene this past week.

More: Pandemic, politics invade Senate confirmation hearing for Supreme Court nominee Amy Coney Barrett

More: Democrats focus on future of Affordable Care Act, 22 arrested in outside protests

Although protests were lively, COVID-19 restrictions kept the general public out of the Capitol and the surrounding office buildings. Smaller groups rallied outside instead.

Anti-Barrett protesters, some wearing face masks emblazoned with Ginsburg’s famous collar, faced off at times against pro-Barrett demonstrators in judge costumes. Some protesters donned red robes and white bonnets, costumes from the drama "The Handmaid's Tale," to highlight women's health care.

On Thursday — the last day of Barrett's hearings — Capitol Police said 27 people were arrested, fewer than half the 69 people who were arrested on the last day of the Kavanaugh hearings. And without protesters inside the building, lawmakers were able to go in and out of the hearings without being heckled.

More: Trump and 2 senators' positive COVID-19 tests spark worries over Amy Coney Barrett confirmation, but GOP moving forward anyway

Less delving into personal life

Barrett is a different nominee than Kavanaugh was.

Even before allegations surfaced against Kavanaugh that briefly held up his nomination, Democrats grilled Kavanaugh for hours over his communications with the White House and missing and confidential documents that chronicled his time working in the George W. Bush White House.

After Kavanaugh was accused of sexual assault by Christine Blasey Ford while in high school, his personal life became a focus of the committee. It resulted in Ford testifying before the committee about the alleged assault, prodding Kavanaugh to deny the allegation and admit to drinking "too many" beers in high school and doing things "that make me cringe now."

Tensions reached a boiling point multiple times during the Kavanaugh hearings, with senators raising their voices as Kavanaugh sat with a stern face, sometimes even pushing back quite forcefully against Democratic inquiries.

But even the toughest lines of questioning posed to Barrett felt mild in comparison.

More: Amy Coney Barrett: Talented judge, popular professor brings solid conservative credentials

More: Six conservative justices? 10 ways the Supreme Court could change

Unlike Kavanaugh, Democrats largely veered away from attacks or questions about Barrett’s personal life, particularly her Catholic faith, which opponents used to argue she was too religiously conservative to serve on the nation's highest court.

Santa Clara University School of Law professor Margaret Russell noted how Democrats “stayed away from” religion after Feinstein was “chastised” for her questioning of Barrett in 2017, when she told Barrett, then an appeals court-nominee, about her concern “that the dogma lives loudly within you” and religion could be guiding her opinions on controversial issues, rather than the law.

Even though Democrats on the committee didn't target Barrett's faith, Republicans still denounced such efforts with Sen. Josh Hawley, R-Mo., saying it's "an attempt to bring back the days of the religious test."

Barrett told the committee that while her faith “was important" to her and her family, she would only apply the law to the cases that would come before her as a Supreme Court justice should she be confirmed.

Election Day clouded hearings

Election Day is only weeks away, which gave both sides different incentives to keep the process from going too far off the rails.

Democrat Joe Biden is leading Trump in national polls, Democrats are favored to keep control of the House, and could even flip control of the Senate.

Even Graham mentioned the possibility of Trump losing reelection as he spoke about the future of the committee, telling Democrats, "Y’all have a good chance of winning the White House.”

“Thank you for acknowledging that,” Sen. Amy Klobuchar, D-Minn., quipped.

Gregg Nunziatta, a former nominations counsel for Republicans on the Senate Judiciary Committee, noted how both parties had the elections in mind and were “more coordinated and more disciplined” than in past cycles.

Republicans were “comfortable” with their position on nominations and Trump’s record on nominations, whereas Democrats felt like Biden was winning the presidential race.

More: Trump, Democrats thrust Supreme Court fight forward as a central issue in November election

High stakes for Sen. Harris: What to watch for when Kamala Harris questions Amy Coney Barrett at her nomination hearing this week

Democrats “didn't want to interrupt that narrative and didn't want to be too obstructionist, or showing they were resigned to the fact that this nomination is probably getting confirmed,” he said.

Several Democratic senators used their role in Kavanaugh's 2018 hearings to catapult themselves into greater political fame, but the dynamics were different in 2020.

Erman, the USC constitutional law professor, said Sen. Kamala Harris, D-Calif., though lauded by progressives for her tough questioning of Kavanaugh, had less incentive to aggressively question Barrett because of Harris' status as the Democratic vice-presidential nominee.

“It's in her interest to not do anything to change the dynamics of the race because it’s on her side so far,” he said.

Contributing: Ledyard King

This article originally appeared on USA TODAY: Amy Coney Barrett: Civil hearings were contrast to Brett Kavanaugh