Barrett Confirmation Escalates Into Crossfire on Health Care

(Bloomberg) — Democrats attacked the Supreme Court nomination of Amy Coney Barrett as a move to kill the Affordable Care Act in the midst of a pandemic and sharply shift the court to the right at a Senate hearing that’s all but certain to lead to her confirmation just days before the election.

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Amy Coney Barrett

© Photographer: Alex Edelman/AFP/Pool/Bloomberg
Amy Coney Barrett wears a protective mask during a Senate Judiciary Committee confirmation hearing in Washington, D.C. on Oct. 12, 2020.

Beginning four days of statements and questioning, members of the Senate Judiciary Committee clashed over the propriety of President Donald Trump’s nomination of Barrett just 38 days before Election Day and the impact she would have on a court that would have a 6-3 conservative majority.

“President Trump and Senate Republicans see the potential to wildly swing the balance of the court,” Democratic Senator Patrick Leahy of Vermont said. “They see the ability to take the courts from being independent to making them instead an arm of the far right and the Republican Party.”

Republicans called Barrett a worthy successor to Justice Ruth Bader Ginsburg, the liberal icon whose Sept. 18 death set off a historic pre-election battle over the future of the nation’s highest court. Republicans see a chance to cement a conservative majority for decades, even if the process carries political risks for the Nov. 3 election.

© Photographer: Alex Edelman/AFP/Pool/Bloomberg
Amy Coney Barrett wears a protective mask during a Senate Judiciary Committee confirmation hearing in Washington, D.C. on Oct. 12, 2020.

“There’s nothing unconstitutional about this process,” said Republican Senator Lindsey Graham, the chairman of the committee. “This is a vacancy that has occurred through the tragic loss of a great woman and we’re going to fill that vacancy with another great woman.”

Graham heralded Barrett, a 48-year-old appellate court judge, as a “gifted” academic and protege of the late conservative Justice Antonin Scalia. Barrett, a mother of seven and devout Catholic, sat in the hearing room surrounded by family members Monday. She wore a mask, as did lawmakers, staff and other attendees.

Coronavirus Protocols

The hearings come under extraordinary circumstances, as the nation grapples with a pandemic than has claimed the lives of almost 215,000 Americans. Two Republican senators on the panel tested positive for the coronavirus two weeks ago, sparking unusual safety precautions for the week of proceedings. One of them, Mike Lee of Utah, spoke without wearing a mask and posted a letter from his doctor saying he had met criteria to end his isolation.

Senator Kamala Harris of California, the Democratic vice presidential candidate, said the decision to hold the hearing was “reckless,” putting workers in the Capitol and senators at risk.

“Senate Republicans have made it crystal clear that rushing a Supreme Court nomination is more important than helping or supporting the American people who are suffering from a deadly pandemic and a devastating economic crisis,” Harris said. “Their priorities are not the American people’s priorities.”

No president has ever made a Supreme Court nomination so close to an election, no matter which party controlled the Senate. The previous record was President Millard Fillmore’s failed 1852 nomination of Edward Bradford, which occurred 78 days before the election.

‘Judicial Oath’

Republicans sought to draw attention to the refusal by Democratic presidential candidate Joe Biden to say whether he would support efforts in his party to add seats to the Supreme Court.

“When they want to try to change the outcome of what courts do in the future by trying to change the size and composition of the court, that is a bad idea that politicizes the judiciary and reduces public trust,” Republican Senator Ben Sasse of Nebraska said.

Democrats worked to put the focus on the future of the Affordable Care Act, also known as Obamacare, a leading issue in the presidential campaign. Each highlighted the personal stories of constituents who have obtained coverage through the ACA, or who have been affected by the spreading coronavirus.

The Trump administration’s latest effort to overturn the ACA is before the Supreme Court on Nov. 10, one week after the presidential election. “This well could mean that if Judge Barrett is confirmed, Americans could lose the benefits that the ACA provides,” said Senator Dianne Feinstein of California, the committee’s top Democrat.

Feinstein pointed to critical comments Barrett made about Chief Justice John Roberts’s pivotal 2012 opinion upholding the core of the ACA, which now provides health insurance for 20 million Americans and other benefits for millions more.

Overthrowing Precedents

Senator Ted Cruz, Republican from Texas, said Democrats are seeking a commitment from Barrett that she would uphold the ACA, something she can’t offer as a judge.

“Making that promise would be violating the judicial oath,” he said.

Barrett is set to portray herself later Monday as a restrained jurist committed to ensuring her personal views don’t interfere with her rulings.

“In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court and done my utmost to reach the result required by the law, whatever my own preferences might be,” she wrote in remarks prepared for Monday that were released Sunday by the White House.

Democratic Senator Chris Coons of Delaware said Barrett’s confirmation could endanger Supreme Court precedents that guarantee the right to use contraceptives, get an abortion and marry someone of the same sex.

The court “may overturn some of the very principles for which Justice Ginsburg fought her entire adult life, principles that protect settled, fundamental rights for all Americans,” Coons said.

Several Democrats criticized what they said was a “super-spreader event” at the White House on Sept. 26, when Trump announced Barrett’s nomination before a packed, mostly maskless Rose Garden crowd. At least 12 people who attended the event — including Trump, Lee and Tillis — later tested positive for the coronavirus. Photos showed Barrett, maskless, with Trump and others in the Oval Office and at a VIP reception inside the White House.

Some Democrats spoke directly to voters who might be watching at home.

“This isn’t Donald Trump’s country, it’s yours,” Senator Amy Klobuchar of Minnesota said, looking straight into a TV camera. “This shouldn’t be Donald Trump’s judge. It should be yours.”

Democrats haven’t been able to shake support for Barrett — or more generally, for the swift replacement of Ginsburg — among GOP senators. Only two of the Senate’s 53 Republicans — Susan Collins of Maine, who’s up for re-election, and Lisa Murkowski of Alaska — objected to considering a new justice so close to the election.

Judiciary panel Democrats say they’ll use various delaying tactics, but unless a few Republicans turn against her, they can’t stop the schedule set by Majority Leader Mitch McConnell and Graham, or keep Barrett off the court.

Barrett would cap the conservative transformation of the U.S. court system during the Trump years, with the GOP-led Senate already having confirmed Justices Neil Gorsuch and Brett Kavanaugh, along with 53 appellate court and 161 district court judges.

Democrats sought to avoid the suggestion that their questioning makes Barrett’s faith an issue. A backlash followed Barrett’s 2017 Circuit Court confirmation hearing when Feinstein suggested that the nominee’s religious “dogma” would guide her work as a judge.

Even though Democrats sidestepped the topic of religion, senior Republicans on the panel worked to put them on the defensive anyway.

“There’s no religious test to serve on the Supreme Court,” said Senator John Cornyn, a Texas Republican. “Why? Because the Constitution says so.”

“The pattern and practice of bigotry from members of this committee must stop,” added his colleague, Missouri Senator Josh Hawley.

(Updates with Harris comments starting in ninth paragraph. An earlier version corrected a reference to same-sex marriage in Coons’ testimony.)

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