Democrats Use Supreme Court Fight to Elevate Health Care in Campaign
Democrats Use Amy Coney Barrett Fight to Elevate Health Care in Campaign
(Bloomberg) -- Senate Democrats are prepared to lose the fight over Amy Coney Barrett’s nomination to the Supreme Court, but her confirmation hearings give them a platform to highlight a timely issue just before the election: health care.
More than almost any other issue, Democrats say the fate of the Affordable Care Act in the middle of a pandemic will drive home the stakes of GOP control of the White House and Senate.
If Republican plans for Barrett’s confirmation hold, she would be on the court when it hears arguments just one week after the Nov. 3 election in a case that could undo the law, which provides health insurance for 20 million Americans and other benefits -- like parents being allowed to keep children on their plan until they turn 26 -- for millions more.
Another issue that animates voters in both parties, abortion, also will be on the table. Yet Democrats on the Judiciary Committee that is holding hearings on Barrett beginning Monday will be moving carefully. They want to avoid any hint of making Barrett’s personal views as a Roman Catholic an issue or raising arguments that would alienate middle-of-the road voters.
Democrats are within striking distance of reclaiming the presidency and a Senate majority in the election, and health care ranks just behind the economy as an important issue for all voters, and ranks No. 1 for Democratic voters, according to Pew Research Center polling.
“It is the issue that is driving many people to the polls as we speak,” said Democratic Senator Amy Klobuchar of Minnesota, a member of the Judiciary Committee that is conducting hearings on Barrett. “It is the No. 1 issue for us is because it’s the No. 1 issue for Americans.”
Clear Road
The path to confirmation for President Donald Trump’s third Supreme Court nominee is all but certain. Judiciary Chairman Lindsey Graham, a South Carolina Republican, is set to use the panel’s 12-10 Republican majority to advance the nomination on Oct. 22. Senate Majority Leader Mitch McConnell has said he would bring it to the full Senate as soon as the panel’s work is done.
Barrett, 48, can be confirmed with just 51 votes, and only two of the Senate’s 53 Republicans -- Susan Collins of Maine and Lisa Murkowski of Alaska -- have objected to a pre-election vote.
Barrett has only a three-year tenure on the U.S. Court of Appeals for the Seventh Circuit, offering a more-limited catalog of past opinions for Democrats to draw from compared to many other high-court nominees. She also hasn’t held a federal job, leaving opponents without files and emails to scour like they did for recent nominees like Justices Neil Gorsuch, Brett Kavanaugh and Elena Kagan.
Yet the Supreme Court’s involvement in the future of the Affordable Care Act has handed Democrats an issue central to the election.
Republicans have tried unsuccessfully to kill the 2010 law known as Obamacare. The high court upheld its core in 2012 in a 5-4 decision written by Chief Justice John Roberts, who said the law’s individual mandate was a legitimate use of Congress’s taxing power. A Republican-controlled Congress later joined with Trump to zero-out the mandate’s tax penalty for those who don’t have health coverage, leaving it without any practical consequences.
In the case set to go before the Supreme Court on Nov. 10, 18 GOP-led states and the administration will argue for invalidating the Affordable Care Act, including its popular protections for people with pre-existing conditions.
Barrett in a 2017 paper published in the journal of the Notre Dame Law School criticized Roberts’s reasoning in the 2012 case as pushing the law’s text “beyond its plausible meaning to save the statute.”
“What I think matters most is that President Trump has repeatedly, publicly and sharply criticized Chief Justice Roberts for not overturning the Affordable Care Act, and President Trump who said he would only choose a judge who would overturn the ACA chose Judge Barrett,” said Democratic Senator Chris Coons of Delaware, another Judiciary member.
The future of Roe v. Wade, the 1973 Supreme Court ruling that established a right to abortion, won’t be far behind in importance during the hearings. A Democratic aide said that the issue could benefit the party because many of the suburban women who will help decide close elections support abortion rights.
Close Races
Three GOP members of the Judiciary Committee -- Graham, Joni Ernst of Iowa and Thom Tillis of North Carolina-- are in re-election contests considered “toss ups” by independent political analysts.
A devout Catholic who has written that the church’s teaching regards abortion as “always immoral,” Barrett has been outspoken about her personal views.
She wrote in a 2013 law review article that judges shouldn’t necessarily be bound by precedent when considering whether to overturn major decisions that conflict with their view of the Constitution.
In 2006, she signed on to an anti-abortion ad in the South Bend Tribune, where signatories contended “the right to life” begins at fertilization. The ad also called for “an end to the barbaric legacy of Roe v. Wade.”
Democratic Senator Mazie Hirono of Hawaii said Trump already made clear he wants a new justice who would overturn Roe.
“That right is on the line if Barrett is confirmed,” Hirono said.
The topic of Barrett’s religion arose during contentious hearings on her nomination to the Seventh Circuit in 2017. Senator Dianne Feinstein of California, the top Democrat on the Judiciary Committee, questioned whether her faith would unduly influence her rulings, at one point telling Barrett that “the dogma lives loudly within you.”
The comments drew accusations from Republicans that Feinstein was attempting to impose a religious test on Barrett, who testified she could set aside her personal views in her work on the bench. She was confirmed 55-43.
Senate Republicans and their allies cite earlier encounter to preemptively criticize Democrats for making religion an issue.
“You’re not suggesting pro-life people can’t be judges, are you?” Senator John Cornyn, a Texas Republican, said when asked about Barrett’s participation in the anti-abortion ad. “I mean that’s what the inference I think that people are making. It suggests she would violate her oath by imposing her personal views instead of making a decision on the law.”
Democrats say Barrett’s religious beliefs won’t be part of their questioning.
Separation of Powers
“I have no intention of asking Amy Coney Barrett about her religious faith or any issues concerning religion,” said Senator Richard Blumenthal of Connecticut, echoing comments this week by other Democratic Judiciary members. “I believe that the question should be directed to the nominee’s judicial philosophy and her positions on legal issues and I have no plan to ask questions about religious faith, which is a private matter.”
Democrats say they have numerous other lines of questioning for Barrett as well. That includes her views on workplace discrimination, gun rights, and the power of federal agencies to regulate. In one dissent she wrote for the appellate court, she argued against blanket bans on convicted felons possessing firearms, a view heralded by gun right backers and alarming to gun control advocates.
She also once wrote that Congress can’t delegate some of its constitutionally designated powers to the Executive Branch -- a reading of the so-called “non-delegation doctrine” that Democrats and environmentalists fear could make it harder for federal agencies to maneuver on climate change or other issues.
Democrats also will use the hearings to continue urging Barrett to recuse herself from future cases related to the 2020 election, after Trump said the court might decide the outcome and he expects her to break a tie. While there is virtually nothing Congress can do to force her to do so, it’s become a litmus test for her independence from Trump.
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