Over Democratic Fury, Republicans Push Barrett to Brink of Confirmation

WASHINGTON — A divisive drive to confirm Judge Amy Coney Barrett to the Supreme Court before Election Day wound on Sunday toward its expected end, as Senate Republicans overcame Democratic protests to limit debate and set up a final confirmation vote for Monday.

Two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, joined united Democrats in an attempt to filibuster President Trump’s nominee to protest a decision they say should be left to the winner of the presidential election. But Republicans had the simple majority they needed to blow past them, setting up the vote to confirm Judge Barrett just eight days before the election and a month to the day after she was chosen.

The tally was 51 to 48. Republicans were expected to win back Ms. Murkowski’s vote on Monday, though not that of Ms. Collins. Senator Kamala Harris of California, the Democratic nominee for vice president, spent the day campaigning and did not vote.

Republicans, who have been on a mad dash to fill the vacancy caused by the death last month of Justice Ruth Bader Ginsburg, planned to keep the Senate in session overnight to speed things up further. Thirty hours must elapse between the vote to limit debate and final confirmation, and Democrats would not agree to recess.

For an aging body that prefers light working hours, the unusual all-nighter only underscored what was at stake. Judge Barrett’s ascension would lock in a 6-to-3 conservative majority on the court, a Republican accomplishment decades in the making. Her lifetime appointment could reshape abortion rights, immigration law and the government’s regulatory power, as well as put a check on Democrats should they win back the White House and the Senate next week, as they are favored to do. It could also have immediate implications as the court continues to act on emergency voting-related cases before the Nov. 3 balloting.

“We’ve made an important contribution to the future of this country,” Senator Mitch McConnell, Republican of Kentucky and the majority leader, said in a speech just after the vote. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

Democrats tried to color the confirmation process as an illegitimate power grab by Republicans, who had blockaded a Supreme Court nominee from President Barack Obama in 2016, citing the coming election that year. They planned floor speeches making the case against Judge Barrett into the early hours of Monday morning. But with the election at hand, their goal was not so much to stop the confirmation as to use it as a rallying cry for their voter base.

“I want to be very clear with the American people about what is going on here,” said Senator Chuck Schumer of New York, the Democratic leader. “The Republican Senate majority is breaking faith with you, doing the exact opposite of what it promised just four years ago to cement a majority on the Supreme Court that threatens your fundamental rights.”

He added, “Don’t forget it, America.”

Partisan fights over the direction of the federal courts have escalated rapidly in recent years, as Congress has ceased to regularly legislate and both parties have increasingly looked to the courts to enact their visions for the country.

But the confirmation wars appeared to be headed to a new, bitter low on Monday. For the first time in recent memory, not one member of the minority party, in this case the Democrats, was expected to vote for confirmation. A single Democrat, Joe Manchin III of West Virginia, had supported Justice Brett M. Kavanaugh in 2018.

Democrats oppose Judge Barrett ideologically, but their opposition has little to do with the nominee herself.

With more than 50 million votes already cast, Democrats insist the winner of the election should be allowed to fill the seat. They have accused Republicans of rank hypocrisy for rushing to fill it despite prior assurances by several senior Republicans that they would not do so if a vacancy opened in an election year and despite Republicans’ insistence in 2016 that voters be given a say in who fills the seat.

ImageSenator Mitch McConnell, the majority leader, at the Capitol on Sunday. Mr. McConnell called Judge Barrett the “perfect nominee to the Supreme Court.”
Credit…Samuel Corum for The New York Times

Ms. Collins and Ms. Murkowski, two moderates who have frequently bucked their party, have shared Democrats’ concerns, warning that to fill the seat now would erode the legitimacy of the court and the Senate. Republican leaders argue that they are justified in proceeding because now, unlike then, the same party controls the White House and the Senate.

But inside the chamber, the outcome has never really been in doubt. Party leaders, compelled by the chance to install a third Trump-nominated justice, had already lined up 51 of their members in support of confirmation, including every one of their members facing tight re-election fights except Ms. Collins.

Then on Saturday, Ms. Murkowski said she would be a 52nd. Despite her opposition to moving forward, Ms. Murkowski conceded that she had lost the procedural argument and said she would vote on Monday to elevate Judge Barrett.

Few remaining votes were unaccounted for when the Senate gaveled in for a rare Sunday session at noon. Democrats, who have been disrupting the usual flow of business in protest, demanded that Republicans physically form a quorum to proceed.

Reflecting the significance of the occasion, Republicans remained at their desks after a quorum had been established and stood one by one to cast their votes to curtail debate — the next-to-last step in the confirmation process.

Democrats did not. Citing reports that several Senate staff members had tested positive for coronavirus, Mr. Schumer advised Democrats not to linger on the floor. They are likely to follow the same protocol on Monday, especially given the possibility that Vice President Mike Pence might preside over the vote despite several of his closes aides testing positive in recent days.

Democrats were relieved when Senator Kyrsten Sinema, an Arizona freshman Democrat with an independent streak, confirmed that she would vote against Judge Barrett.

“After watching the Senate Judiciary Committee confirmation hearings, reading Judge Barrett’s legal opinions and scholarly writings, and speaking with her directly, I am concerned about Judge Barrett’s inconsistent views on legal precedent, and how those inconsistencies impact her obligation to interpret and uphold the rule of law,” Ms. Sinema said in a statement.

In her own statement, Ms. Collins said she had reached no conclusions about Judge Barrett’s qualifications because she was categorically opposed to holding a vote before Election Day.

“What I have concentrated on is being fair and consistent,” she said. “I do not think it is fair nor consistent to have a Senate confirmation vote prior to the election.”

At 48, Judge Barrett would be the youngest justice on the bench, poised to put an imprint on the law for decades to come. An appeals court judge in Chicago and a Notre Dame law professor, she has been presented as an heir to former Justice Antonin Scalia, a towering figure of the court’s conservative wing for decades. Judge Barrett clerked for Justice Scalia and shares his strict judicial philosophy.

Mr. McConnell, the architect of Republicans’ blockade of Mr. Obama’s 2016 nominee, Merrick B. Garland, and the subsequent conservative stacking of the courts, called Judge Barrett the “perfect nominee to the Supreme Court.”

In her confirmation hearings this month, Judge Barrett repeatedly described herself as a true independent with “no agenda.” Neither party in the Senate, though, appears to believe she will be anything but a reliably conservative vote based on her academic writing and appeals court rulings. If that bears out, Judge Barrett would be the ideological opposite of her predecessor, Justice Ginsburg, who was the leader of the court’s now-diminished liberal wing.

Mr. Trump has promised to appoint justices who would chip away at or overturn abortion rights enshrined by the court in Roe v. Wade, and Democrats have spent weeks warning that Judge Barrett would do just that. They also say she would rule against the Affordable Care Act when the court hears a challenge to Democrats’ signature health care law just a week after the election.

“If qualifications are the only thing that matters, why did President Trump vow to pick only justices who would terminate our health care law?” asked Mr. Schumer, prodding Republicans who have tried to downplay the implications of Judge Barrett’s confirmation for policy by focusing almost solely on her pedigree.

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