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Facing Re-Election, Republican Senators’ Political Agendas Shape Supreme Court Hearing


A version of this article first appeared in The D.C. Brief, TIME’s politics newsletter. Sign up here to get stories like this sent to your inbox every weekday.

Sen. Joni Ernst began her questioning of Judge Amy Coney Barrett not with queries about precedent or hot-button legal issues, but with a defense of her fellow Republicans’ choice to move forward so quickly with the nomination of a potential Supreme Court justice. It was a posture of confidence that many of her colleagues have been trying to project since the hearing started on Monday. It comes despite most voters’ wishes that Washington had kept its focus on pandemic-relief efforts.

“The Senate GOP did bring up a relief bill a number of weeks ago,” Ernst said during the second day of hearings for Barrett’s potential lifetime appointment to the High Court. She noted that the Republican proposal, which Senate Democrats blocked, would have helped farmers and ranchers, picked up small-business loans and money for schools. “It was a very, very good bill,” she said yesterday, blaming Democrats and ignoring her own party’s dismissal of another, larger House-passed bill.

Ernst’s message was aimed more at her constituents in Des Moines than the 48-year-old federal judge who sat before the panel. She and three fellow Republicans on the panel face tough re-elections back home. Ernst used much of her allotted 30 minutes to appeal to her home state: she introduced letters from local papers and “48 Christian women scholars” into the Congressional Record, talked about their shared “pro-life” stance and the perennial boogeyman for Iowans, the Water of the United States rule.

“We are all too often perceived and judged based on who someone else needs or wants us to be, not on who we actually are,” Ernst said on the opening day of hearings, a naked appeal to female voters who consistently outnumber men at the polls in her state and on her state’s voting rolls. “I cannot speak for those that would attempt to undermine your nomination, but as a fellow woman, a fellow mom, a fellow Midwesterner, I see you for who you are.”

It was a stark reminder that, while we watch what could be among the quickest confirmations on record, the rest of the country is probably more occupied thinking about the pandemic, the economy and a reckoning on justice — and, like Ernst, Election Day. The race to find someone for liberal icon Ruth Bader Ginsburg’s seat is a hot topic in D.C., but not in the socially distanced pumpkin patches around this country. Polls show a majority of Americans would have preferred for lawmakers to wait until after the election to hold the hearing, and instead focus on a relief package for the coronavirus pandemic. Americans by an 8-percentage-point margin would have preferred a delay until they know who will be taking the oath of office come Jan. 20, 2021.

Four Republicans on the Senate Judiciary Committee are locked in tight re-election fights: Ernst; Sen. Thom Tillis of North Carolina; Sen. John Cornyn of Texas and the panel’s chairman, Sen. Lindsey Graham of South Carolina. For them and other GOP senators facing serious challenges, including Sen. Cory Gardner of Colorado, Sen. Martha McSally of Arizona and Sen. Steve Daines of Montana, avoiding this election-eve rush may not help their cases back home. As much as Barrett’s potential shift in the balance of the court may fire up President Donald Trump’s base, it burns just as hot among his critics.

So far, Senate Majority Leader Mitch McConnell appears to have an unstoppable battery of votes to confirm Barrett. That is on track to come the week of Oct. 26. A week later, voters will render their verdict on that choice and decide whether McConnell keeps hold of power in the Senate. And a week after that, the court will hear arguments about the fate of the Affordable Care Act, better known as Obamacare.

McConnell is facing his own re-election fight back in Kentucky, though polls show McConnell with an advantage in polling, if not fundraising. The bigger risk for McConnell is Democrats from coast to coast. If they can net three or four seats, Democrats could pick up the chamber’s majority, depending on which party captures the Vice Presidency, which breaks Senate ties.

The incumbent Republicans are trying to turn the hearings from a potential liability into a political advantage. As Graham himself mused as he opened the hearings on Monday with a plea for civility and decorum, no one’s mind is going to be changed by them and the outcome is pretty well set. A day later, as Graham opened the second day of hearings, he spent a full five minutes criticizing Democrats for pursuing “single-payer health care” and Democratic states like New York, California and Massachusetts for receiving an uneven share of federal health care dollars.

(Some necessary fact-checking is needed here. First of all, Democratic Presidential nominee Joe Biden has not called for a single-payer plan. Secondly, federal spending hinges on the local costs, and those liberal states spend more per patient than, say, South Carolina. On top of that, South Carolina opted not to participate in an optional Medicare expansion that brought with it — you guessed it — more federal dollars.)

By this morning, Graham was leaning full-tilt into an appeal for conservative women to come home to his re-election bid. “I have never been more proud of the nominee than I am of you,” he told Barrett. “This is history being made, folks.”

Graham is in the fight of his life back home. A Quinippiac University poll released last week shows Graham tied with Democratic nominee Jamie Harrison. The fact that South Carolina — which voted for Trump by 14 percentage points four years ago — could retire the President’s golfing buddy speaks to the volatility of the electoral map, less than a month out from Election Day.

So rather than give Barrett an immediate chance to make the affirmative case for herself — which he eventually did — he took up his time on Tuesday with a direct-to-camera plea to his base. “I don’t know what’s going on out there, but I can tell you there’s a lot of money being raised in (Harrison’s) campaign. I’d like to know where the hell some of it’s coming from,” Graham said. Harrison’s reported $57 million third-quarter haul is a national record. All of it will be detailed in a publicly available federal report that is due on Thursday.

For his part, Cornyn used his time to take a shot at Biden for his vote for the Defense of Marriage Act. And when his turn came, Tillis opened with a warning that cities were burning and law enforcement was under attack, echoing key points of Trump’s 2020 campaign.

To be fair, Democrats, too, have brought plenty of politics to the hearing. But other than the Vice Presidential nominee, Sen. Kamala Harris, none of the Democrats face any real nail-biters in November. Reporters after the 11-hour second day of hearings caught Graham in the hallway late Tuesday and asked what effect, if any, he thought these sessions would have on the races around the country.

“In my state, conservative judges are preferred over liberal judges,” a masked Graham said. “In terms of how this affects the election, time will tell. In terms of (Barrett’s) qualifications to be on the Supreme Court, I think it’s beyond questioning that she’s qualified.”

If only lawmakers had spent more time letting Barrett herself make that case.

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Write to Philip Elliott at philip.elliott@time.com.

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