Barrett confirmation hearing may pressure Feinstein, Harris to subdue their political instincts
California Sens. Dianne Feinstein, left, and Kamala Harris. (Mark Wilson / Getty Images)
California Democratic Senators forged their political tokens in high profile Supreme Court confirmatory hearings scheduled for next week with Judge Amy Coney Barrett.
However, as they prepare to put President Trump's third candidate on the bench just three weeks before the presidential election, Sens. Dianne Feinstein and Kamala Harris face particular challenges that may force them to curb their natural political instincts.
Feinstein, the top Democrat on the Senate Judiciary Committee, has to prove to skeptical progressives that their preference for bipartisanism and compassion does not prevent them from adopting an aggressive stance on Republicans - not just during a validation process that most Democrats see as illegitimate also as chairman of the body next year, when the Democrats take over the Senate majority in 2021.
In contrast, Harris, now the Democratic vice-presidential candidate, may be tempted to tone down her law enforcement style. Known for his tough questioning of lawyers and other Senate witnesses, Harris has to balance expectations for a gotcha viral moment with the requirements of a presidential ticket that leads the polls and is intent on avoiding missteps or undue risk to avoid.
For Feinstein, the challenge is how much sand needs to be thrown into the gears of the Barrett validation process. She is being pressured by those who say Democrats need to do more than just voice their objection to the GOP push to fill the vacancy, as the presidential vote is already underway.
"If you make a litany of statements that the trial is unlawful but you are proceeding as normal for your actions, the record reflects that you consider the trial to be legitimate," said Adam Jentleson, former aide to Majority Leader Harry Harry Reid.
One possibility would be for the Democrats to boycott the committee vote expected on October 22nd. If some Republican senators are absent from COVID-19 quarantines - currently three GOP senators have tested positive - Democrats could contest whether they have a quorum on the Senate committee or on the committee.
Other Democrats on the committee have refused to meet with Barrett in protest. But Feinstein and six other Democrats on the committee held telephone meetings with her, some as recently as Wednesday.
Feinstein, who was re-elected into her sixth term in 2018, is increasingly being scrutinized by other Democrats for her work on the committee. It remains frustrated with how she handled the Kavanaugh hearings, including agreeing to Christine Blasey Ford's request for anonymity after the Palo Alto professor privately disclosed claims that Kavanaugh attacked her when she was both teenagers were, a charge he denied. Ford eventually stepped forward to volunteer.
Feinstein is also widely accused of ill-treated questioning Barrett's religious views during Barrett's 2017 confirmatory hearing as an appellate judge. Feinstein told the candidate, "The dogma lives out loud within you," a phrase that roused conservative Catholics and opened the door to GOP complaints that Democrats rejected them because of their religion.
Some Democrats have tacitly reached out to Senate minority leader Charles E. Schumer (DN.Y.) over the past few months to replace Feinstein on the Justice Committee with a Senator younger and more aggressive than Politico im next year reported for the first time last month. The ordinary members have had private discussions about whether seniority is the best way to choose the heads of the committees. If the Democrats won a majority in the Senate in 2021, Feinstein would be the next to lead the powerful body. She refused to say if she would look for the job.
Feinstein declined an interview request, but in response to written questions, she pushed back the idea of being meek.
"I have neither seen nor learned what steps we have not taken that we should take," she wrote. “Anything that can be done. we're doing it. And I'll keep fighting to keep Justice [Ruth Bader] Ginsburg's seat open until after the inauguration so that the American people have a voice in choosing our next justice. "
She declined to release details of the Democrats' procedural strategy. She linked up with the opposition to Barrett's endorsement at the grassroots level but said there are limits to what she and Democrats can do when Republicans have the votes.
"I share the passion that we see. There is a lot at stake for the American people with this nomination," she said. "Unfortunately, the Senate ultimately does not allow any real tools to stop this process while the majority side has the vote to get it through. It really shows why elections are so important. "
Progressive Democrats insist that Barrett's fate is not sealed. They cite earlier examples when Republicans theoretically had the votes but collapsed under public pressure, such as the GOP's unsuccessful efforts to overturn Obamacare in 2017.
During the Barrett Hearing, Democrats plan to argue that they would almost certainly vote in favor of invalidating the Affordable Care Act and revoking abortion rights.
"What we are looking for in the Senate hearings is that the Senators behave in a way that really highlights the problems with the Supreme Court candidate," said Amar Shergill, chairman of the California Democratic Party's Progressive Caucus.
As the youngest Democratic Senator on the Justice Committee, Harris is likely to be the last one on the list of questioners. But it will undoubtedly be one of the most closely watched.
During Justice Brett M. Kavanaugh's affirmation battle, she had outstanding moments such as an abortion-related question whether he could cite a law that "gives government the power to make decisions about the male body." She had similar tough encounters at hearings with Atty. General William Barr, his predecessor Jeff Sessions, and John Kelly, then Chief of Staff of the White House.
However, at times Harris' interrogation has been criticized for going too far, leading to a backlash that it harassed witnesses, cut them off, and implied misconduct by asking them without providing actual evidence. For example, she asked Kavanaugh if he had ever spoken to any law firm about the Special Envoy Robert S. Mueller III's investigation into Russian election interference and obstruction of justice. Those specific questions suggested that she had evidence of this. Kavanaugh seemed surprised. But nothing was more public about it.
Less than a month before the election, Camp Biden undoubtedly wants to avoid high profile gaffes during the Barrett hearing. Supporters, on the other hand, cite Harris' strong interviewing skills as one of the reasons she is the vice presidential candidate.
"Her entire career is about taking risks," said Steve Haro, former Feinstein chief of staff, who is now a lobbyist. "She'll show why Joe Biden picked her as our vice presidential candidate."
This story originally appeared in the Los Angeles Times.
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