Republicans already have all but won the battle to confirm Judge Amy Coney Barrett to the Supreme Court thanks to their control of the Senate, but used Monday's confirmation hearing to stress the importance of a judiciary free from political interference and to defend Barrett against attacks on her religion, even as Democrats avoided the topic.
So, freed from the need to make a case for the nominee — although several senators are — Republicans are using the opportunity for broader comments about what they call the strength of the judicial system at which Barrett is poised to sit at the apogee.
"This idea of place in our system of government is critical. Ours is a government of separated powers. The power to make, enforce, and interpret the law isn't centralized in one person or one branch of government," said Sen. Chuck Grassley of Iowa, a top member of the panel.
"But this system only succeeds if each branch respects its role. A good judge understands it's not the court's place to rewrite the law as it sees fit. It's not his or her place to let policy, personal or moral principles dictate an outcome."
Several Republicans have reacted with wry or sarcastic disappointment at the complaints and objections of minority Democrats, whom they argue would be acting exactly in the same way as they are if they held the majority and Republicans were in their place.
The objections about the Affordable Care Act have nothing to do with Barrett or the Supreme Court, Republicans argue — and it's impossible to accept the premise that a judge must be impartial but also ask her to agree to take a certain position before she is confirmed, they said.
"The hypocrisy is incredible," said Sen. Thom Tillis of North Carolina.
Democrats have been pointing to a case related to the ACA that is set to go before the Supreme Court on Nov. 10, which a newly appointed justice could weigh in on. In a 2017 article in the Notre Dame law journal, Barrett pushed back against the court's ruling on Obamacare.
Some of the fiercest counterattacks on Barrett's behalf came from Sens. Josh Hawley of Missouri and Ben Sasse of Nebraska, who each, in their turn, faulted what they called the attempt by critics to impose a "religious test" for the Supreme Court.
Hawley cited what he called inappropriate questioning about Barrett's Catholic beliefs and affiliation and said it was nothing less than "bigotry," a bid by opponents to bar Barrett from public office based on her religious identity — which is protected under the Constitution.
Sasse agreed and lamented what he called the absorption of "civics" by "politics," which he said has brought Washington to the point where parties' need to win has subsumed a prior consensus about the rules and expectations of governance.
While Barrett's faith came up in her confirmation hearing for her federal judgeship, Democrats steered clear of the topic on Monday.
Sasse said he hopes Washington and Americans more broadly can recover what he called the importance of "civics," which would lower the temperature on disputes like that over Barrett's nomination.
"Politics is like if I look at my friend [Delaware's Democratic Sen.] Chris Coons and I say, 'Listen up, jackwagon, what you want to do on this particular Finance Committee bill is going to be way too expensive and might bankrupt our kids.' Or if Chris looks back at me and says, 'Listen up, jackwagon, you're too much of a cheapskate and you're underinvesting in the next generation.' That's a really important debate. That's a political debate. That's not civics. Civics is more important than that. Civics doesn't change every 18-24 months because the electoral winds change and because polling changes."
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