Welcome to Byron York’s Daily Memo newsletter.
Was this email forwarded to you? Sign up here to receive the newsletter.
WHAT DO DEMOCRATS HAVE IN STORE FOR AMY CONEY BARRETT? The short version of the Barrett Supreme Court confirmation hearings so far is that Democrats have not laid a glove on President Trump’s nominee. On issues of the law, there’s no way they can. Barrett (like previous SCOTUS nominees from both parties, but perhaps even more so) knows more about the law than the members of the committee, and also appears to have led an exemplary life.
But remember this: Back in 2018, the Brett Kavanaugh confirmation did not turn into a total disaster until after the hearings were over. Yes, there were signs that the fight might turn ugly. There were protesters in the audience each day, and they regularly interrupted the proceedings before police dragged them out of the room. That isn’t happening with Barrett because coronavirus concerns have led the Senate Judiciary Committee to declare that there will be no audience. So no audience = no protesters = no disruptions.
But the Kavanaugh hearings themselves were relatively uneventful, and they ended with both senators and outside observers believing Kavanaugh would be confirmed, although over the opposition of most, if not all, Democrats. It wasn’t until five days after the hearing that there was a media report, in The Intercept, that Democratic committee member Sen. Dianne Feinstein had a letter accusing Kavanaugh of some sort of impropriety — all the report said was that the letter “describes an incident involving Kavanaugh and a woman while they were in high school.”
Subscribe today to the Washington Examiner magazine that will keep you up to date with what’s going on in Washington. SUBSCRIBE NOW: Just $1.00 an issue!
Four days later, Christine Blasey Ford took to the Washington Post to accuse Kavanaugh of sexually assaulting her in high school 36 years earlier, when Kavanaugh was 17 years old. Even though Ford had no evidence — none — to support her claim, the confirmation process went off the rails. Democrats demanded an FBI investigation, there were back-and-forth negotiations with Ford’s lawyers over whether she would testify, and finally, nearly three weeks after the hearings ended, Ford and Kavanaugh appeared in a dramatic one-day extension of the hearings.
Then there were other, equally unfounded allegations against Kavanaugh, the craziest of which accused him of taking part in a gang rape. The day after the Ford hearing, the Judiciary Committee voted to send the nomination to the full Senate but also to request an FBI investigation. (Remember, there was still zero evidence that Kavanaugh had done what Ford accused him of doing so many years before.) The FBI found nothing. It would be another week before Kavanaugh was finally confirmed by the full Senate on a nearly party-line vote. (If you want the inside story of the entire wretched affair, read Mollie Hemingway’s and Carrie Severino’s excellent account Justice on Trial.)
So after that sobering flashback, what might happen with Barrett? I asked two veterans of the Kavanaugh battle. They weren’t sure whether Democrats would try to disrupt the process, but shared a common dread of what might result. Remember that, given the Republicans’ tight schedule for confirmation, Democrats would not need to pull a Full Kavanaugh on the nomination. They would simply have to raise some sort of issue that could delay the proceedings and make it impossible for the GOP to finish before the election.
Kavanaugh Veteran #1 thought Democrats would allege some sort of wrongdoing on the part of People of Praise, the small Christian group with which Barrett has been affiliated. The alleged wrongdoing wouldn’t have to involve Barrett, Kavanaugh Veteran #1 said, just the allegation that she remained silent. And of course, with the Kavanaugh standard, the alleged wrongdoing need not have happened at all; it’s the accusation that could bring the process to a halt.
Kavanaugh Veteran #2 was slightly more optimistic. “Democrats will never cease to amaze me, but it looks like they are more focused on the election than the nomination,” the veteran said. “But we are always ready for whatever they might throw at her. I anticipate that if anything emerges, it would come from the media, not from the Democrats.”
Indeed, Democrats have so far sought to make the confirmation about the Affordable Care Act, giving long speeches on their theory that Barrett’s confirmation would endanger the health care of millions of Americans. That certainly supports the idea that Democrats, given all of Barrett’s strengths, have decided to make the hearings about the presidential race rather than the nominee herself. That, at least, appears to be the strategy for the hearings.
But Democrats know Republicans are racing to confirm Barrett before the election. It wouldn’t take a very long delay to make that impossible. And allegations don’t have to be true, they don’t have to be plausible, and they don’t have to be supported by even a scrap of evidence to disrupt a confirmation’s scheduling. That’s why some Republicans are wondering what the next few weeks will bring.