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I listened to the first day of Senate confirmation hearings today for SCOTUS nominee Amy Coney Barrett. Today was just the opening statements by all the members of the Judiciary Committee, and nothing that was said was unexpected: Democrats repeated their complaints about the hypocracy of rushing this confirmation process after blocking Obama's nomination in the last year of his term, and decried that the GOP is trying to get her on the bench so she can be the deciding vote in an upcoming challenge to the Affordable Care Act; while Republicans pointed out that it's their duty and right to confirm a nominee, and Barrett is a highly qualified judge.

There are three more days of committee hearings, and then there's going to be a vote in the full Senate, which I think will also allow Senators to make speeches. It all seems like an incredible waste of time. Everyone knows each party's arguments, and her confirmation is pretty much a foregone conclusion. The votes will be mostly along party lines -- only two GOP Senators have raised any objections to proceeding with the process, and that's not enough to swing the vote. It was similar during the Kavanaugh confirmation, and he was a much more controversial nominee, as well as the Trump impeachment hearings. US politics is incredibly polarized, there's almost no hope of convincing the opposition to change their mind about something (Lindsey Graham admitted as much during his opening remarks). And a Supreme Court nomination is not like a bill that allows amendments and negotiation -- she's either in or out (even if there were some back room deals where Senators changed their votes in exchange for concessions on some other measures, there would be no way to enforce it).

So is there any point to this other than for all the committee members to put on a show for their constituents? Is the process perverted because the hearings are public?

I realize there's always going to be some grandstanding when politicians are speaking in public. The question is whether there's anything substantive to the process as well, or is it all just for show? Am I being totally naive in expecting them to use some of this process for substantive inquiry?

UPDATE:

I wasn't listening to the hearing much on October 14, but I heard on the news that there were some actual substantive questions about judicial philosophy that day. But there was also the usual dance of Democrats trying to get Barrett to admit how she would vote on likely challenges to ObamaCare (coming up next month) and Roe v. Wade (they come up regularly), and her defly refusing to answer hypotheticals like every other SCOTUS nominee has done in the past.

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    A number of republicans have also taken time to attack Democrats by suggestion they won't confirm a Catholic. A point which no Democrat has raised, so let's not pretend one side is being unconstructive and the other is just doing their job. – Jontia Oct 12 at 21:41
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    I was just mentioning the most obvious examples of the expected comments by each side, not trying to be exhaustive. The Republicans still can't get over a comment Diane Feinstein made during Barrett's confirmation to the appellate court. – Barmar Oct 12 at 21:45
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    Of course they're going to grandstand. Both sides are going to grandstand. The election is a mere three weeks away, and the country is extremely divided. For even better grandstanding, I suggest you watch Prime Minister's Questions, or the equivalent, that many parliamentary systems use. Question Time can be amusing from a foreign perspective, multiple bags of popcorn level of amusing. At least fisticuffs have not yet broken out over ACB's appointment. Fisticuffs (and worse) have broken out in the US House of Representatives and in the US Senate. – David Hammen Oct 12 at 23:21
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    Grandstanding is a key part of legislating, and has been a key part of legislating for a long, long time. It works, at least some of the time. A jaded view of the Gettysburg Address is that Abraham Lincoln traveled from Washington to Gettysburg so he could grandstand. It worked. Joseph Welch grandstanded to ask Joseph McCarthy whether McCarthy had any sense of dignity. It worked. Grandstanding works, at least some of the time, and some of the time it works phenomenally well. – David Hammen Oct 12 at 23:45
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    Is my question just betraying total naiveté, expecting anything of substance from the US Congress these days? – Barmar Oct 12 at 23:56
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Question: The votes will be mostly along party lines -- only two GOP Senators have raised any objections to proceeding with the process, and that's not enough to swing the vote.

The nature of the confirmation is directly related to how large, disciplined, and motivated the senate majority is in supporting the candidate. A 4 seat majority in this senate is a pretty large margin and makes confirmation likely and boring. No not all confirmations are this straight forward, likewise the senate minority party has already said they are going to insert some excitement into the confirmation hearing using loopholes in the senate rules still available to them. ( deny the committee and maybe even the full senate a quorum ).

Question: There are three more days of committee hearings, and then there's going to be a vote in the full Senate, which I think will also allow Senators to make speeches.

It doesn't look like there will be a vote in the full senate, this week nor immediately following the committee hearings. The Democrats still have some cards to play. Senate rules require their be a quorum to vote the nomination out of the committee. The Republicans need 2 Democrats to attend the final vote in order to have a quorum and send the nomination to the senate floor.

Here is the article I was reading:
Schumer says Democrats won't give GOP quorum to advance Barrett nomination

The Democrats are going to deny the Republicans that quorum, which means the Republicans will need to pass a rule change prior to the nomination coming out of the committee, amending or removing the quorum requirement. That will easily push the full senate deliberations back a few days. Once out of committee, the Democrats can try the same trick on the floor of the senate, but there they will need some Republican help. The GOP has a four vote majority on the senate floor. The Republicans only need 51 votes to achieve quorum on the floor. Here the 2 GOP senators who have expressed objections about the nomination as well as the 4 GOP senators who are currently under coronavirus quarantine come into play. Here again the GOP will either change the rules to allow their Senators to vote remotely while in quarantine, or wait the week or two until out of quarantine. The Democrats are trying to push the confirmation back until after the election; where they might have a majority. They will be able to push it back some, but beyond a week or two they will probably need some further help. The really interesting thing though is we are less than 4 weeks away from the election. Any delay beyond two weeks could really put the nomination in doubt.

The Republicans could conclude the confirmation after the election. But that's problematic too. No lame duck president has had a supreme court nomination confirmed after he lost an election since John Adams did it in 1801. 220 years.

So, no solid slam dunk strategy to stop the nomination; but there is enough there to potentially make this nomination interesting.

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  • As you say, they may only be able to push the vote back a week or two. And even if they lose seats in the election, they could vote during the lame duck period. If they do it in the week after the election, it will be in time for ACB to hear the Obamacare case. – Barmar Oct 13 at 14:28
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    @Barmar, Perhaps however one would have to go back to 1801 and President John Adam's appointment of John Marshal to site the last time the Senate confirmed a lame duck president's appointee. The Senate did confirm Lincoln's ( Salmon P. Chase) and FDR's (Frank Murphy) in 1864 and 1940 respectively; but only after both won their prospective elections in 1864 and 1940, so neither were a lame duck. – JMS Oct 13 at 15:09
  • .@Barmar adding a justice to the supreme court during a lame duck session where both the presidency and the senate have been lost would be a very risky political proposition. The fallout could not be predicted in advance. – Jontia Oct 13 at 15:11
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    Senate quorums aren't really gameable like you seem to think. SCOTUS precedent says that if the Senate, by its log, says it had a quorum, then it had a quorum, even if it very definitely and provably did not. And the rules for the Senate log say that a quorum is assumed unless somebody moves that one be verified. So basically a Democrat, or conspiring Republican, has to show up to the chamber to demand the check, while there still being a minority of members left after the rest of the minority party bailed. That requires some Republican absences. Are there committee republicans out sick? – zibadawa timmy Oct 14 at 0:51
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    @zibadawatimmy 3 Republican senators are in isolation with covid 19. politico.com/news/2020/10/03/… – Jontia Oct 14 at 12:13
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Pretty much.

As I've written in a different question, it is the judicial philosophy that Democrats and Republicans disagree about, not the qualification of the candidate. Potential candidates are vetted so extensively that it is quite obvious beforehand that they are qualified.
This, however, doesn't make for a good political argument, which is why both parties still have to do their respective performance: Democrats have to show that they are sufficiently resisting, Republicans have to show a modicum of restraint and respect for the process by not rushing through it at warpspeed.
In the end it simply amounts to the fact that Republicans have the means to confirm their candidate and will do so, the rest is politics, especially in an election year.

Just for comparison:
In Germany the political parties simply make a deal based on the majorities in both of our legislative chambers that assigns the respective parties a certain amount of candidates based on their percentage of seats.

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    Trump has defied the "extensively vetted" presumption, having nominated several would-be jurists rated "not qualified" by the ABA, not all of which got appointed (sadly some did), as well as several jurists (and other officers) who were quickly immersed in scandals that even half-arsed vetting should have found ahead of time. – zibadawa timmy Oct 14 at 0:55
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A Congressional hearing is a bit like a President or cabinet member offering up a trial balloon. Normally, it doesn't change the result. But every now and then it does. (There is also some room for political gamesmanship to run down the clock, especially when he clock is ticking and a new Congress with a different partisan makeup with take office on January 3, 2021.)

If there is a sudden outpouring of mass opposition from some unexpected quarter that matters to the majority (e.g. immense and rapid opposition from the Chamber of Commerce and Evangelical Christians for some unanticipated reason), or information disclosed in the hearing does something to change the majority's mind such as a disclosure that the nominee has terminal cancer and has just six months to live (which perhaps even causes the President to withdraw the nomination), it could change the outcome.

If, on the other hand, the hearing provides no surprises, it rarely changes the outcome.

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  • Has there ever been a Jack Nicholson "You can't handle the truth" moment, when a nominee mistakenly said something which made their nomination impractical? I suspect that by now they are well-coached, and that goading or hectoring a nominee, especially a woman, would not look good, but has this happened in the past? – Italian Philosophers 4 Monica Oct 13 at 22:37
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    @ItalianPhilosophers4Monica You'll want to read about the nomination of Bork, which one could say set the stage for the sort of hyper-partisan bickering we see today in SCOTUS confirmations (though don't forget that many nominees after him were still confirmed with massive majorities, with single digit no voters). He answered a question in a way that made it clear he found the intellectual aspects of a SCOTUS seat to be the most compelling and interesting to him, which was then used to paint him as an elitist disconnected from the millions whose daily lives could be affected by his decisions. – zibadawa timmy Oct 14 at 0:58
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    @zibadawatimmy interesting, there's a writeup about that aspect. thing to note however is that 2 Dems voted for him and 6 Reps against him, in a Dem-controlled Senate so things weren't quite so lined up in Rep vs Dem yet. – Italian Philosophers 4 Monica Oct 14 at 1:16
  • @ItalianPhilosophers4Monica Yes, I said "set the stage for", not "immediately transformed into the exact likeness of". Point is he was expected to be a sure thing, like such nominees normally were, then he said something that torpedoed his chances. You might say Harriet Miers (nominated by the second Bush) also answers your question, as her answers to questions in her hearings made it clear she was pretty painfully uneducated on a large number of legal matters and procedures. There was a lot of bipartisan opposition to her, or at least concerns about her, even before that, though. – zibadawa timmy Oct 14 at 1:45
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    @ItalianPhilosophers4Monica Kavanaugh's hearings made his confirmation impractical, although the Republicans went ahead and did it anyway because reasons. – Acccumulation Oct 15 at 3:20
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Even if it is all about pre-set partisan agendas, then open public hearings that show only that serve a purpose to show the citizens and the public the level of disfunction, who is or isn't willing to step up and be public servants, and how much individuals and parties are willing to serve the public and try to make their lives better, versus being strictly about exercise of political power for partisan purposes.

In a democracy, citizens need to know. If they're unwilling to be informed and understand, that's their own fault, but the opportunity to observe has to be available to We The People.

If it seems frustratingly pointless and only angers the observer, then that's an indication that the voter needs to change their behavior and punish the status quo.

To quote the fake American President "Democracy isn't easy. You have to want it."

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  • Quite true. Lindsey Graham is facing a real challenge in his reelection bid, and I like to think that his flip-flopping on what he said a couple of years ago about not voting for a SCOTUS confirmation in an election year is part of the reason. – Barmar Oct 15 at 23:24

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