Barrett Volleys Fire on Health Care Law as Democrats Highlight Pandemic Threat

Supreme Court nominee Amy Coney Barrett speaks during a confirmation hearing before the Senate Judiciary Committee on Tuesday. (Erin Schaff/The New York Times via AP, Pool)

WASHINGTON (CN) — Democrats drilling Supreme Court nominee Amy Coney Barrett buckled down Tuesday on their warnings that Republicans are commandeering the high court to overturn the landmark health care legislation that protects those with preexisting conditions, among the 7 million Americans who contracted Covid-19 this year.  

In lockstep, the Senate minority has defined Barrett as a President Donald Trump’s pick to overturn the Affordable Care Act by giving the Supreme Court a 6-3 conservative majority in time for a hearing next month where the Justice Department backs conservative states fighting the ACA.  

Before Trump nominated Barrett to the Seventh Circuit in 2017, the longtime professor had criticized Chief Justice John Roberts for pushing the Affordable Care Act “beyond its plausible meaning to save the statute.” 

Barrett refused Tuesday to recuse herself from ruling on the ACA, saying she has made no commitment on how she will decide that case, or any election challenges.  

“I have had no conversation with the president or any of his staff on how I might rule in that case,” she said. “It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how I would rule.”

The nominee also said she has never written on the issue at the heart of the case set for oral arguments on Nov. 10: whether the individual mandate is severable from the rest of the Obama-era law. 

Asked to share her views on the health care law, she defaulted to a frequently invoked response: “The canons of judicial conduct would prohibit me from expressing a view.”

Chairman Lindsey Graham later said that he also has never discussed the issue of severability with the president. 

Asked by Graham to define her originalist judicial philosophy, Barrett said she believes it is her duty to interpret the text of the Constitution as it is written. 

“That meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it,” Barrett said. 

She repeatedly denied coming to the Supreme Court with an agenda. Judges can’t “walk in like a royal queen and impose their will on the world. You have to wait for cases in controversies,” the nominee told the panel.  

The challenge to the ACA will hit the Supreme Court just one week after Election Day, a lineup that Democrats have heavily stressed. 

Senator Dianne Feinstein of California also asked the nominee whether she believes the Constitution gives Trump “the authority to unilaterally delay a general election under any circumstances?” 

Barrett said that she would need to hear the arguments, review briefs and consult with her fellow justices before deciding such a case. 

“If I give off-the-cuff answers, then I would be basically a legal pundit,” she said.  

The response echoed her answers to questions from Feinstein on the ACA, abortion, LGBT rights and gun control where Barrett said she would approach the issues with “an open mind, applying the law.” 

Feinstein, the top-ranking Democrat on the committee, pressed Barrett to provide direct responses, given what she called the “grave concerns” about the nominee’s views.  

“These are life-or-death questions for people,” Feinstein said.  

Same-sex marriage also arose in the early rounds of questioning, with Senator Patrick Leahy of Vermont asking Barrett if she believes the act should be a crime. 

Barrett responded in turn as she had most of the afternoon: Supreme Court precedent — in this case Obergefell v. Hodges — clearly holds that same-sex marriage is a constitutional right. But the nominee once again did not avail the committee of her opinion, saying it would jeopardize her judicial independence.  

“I’m not going to as Justice Kagan put it, ‘give a thumbs up or thumbs down to any particular precedent,’” Barrett said. “It’s precedent of the Supreme Court that gives same-sex couples the right to marry.” 

Republicans took offense at the Democrats’ line of inquiry, saying no one can know how Barrett will rule in the ACA challenge or any other case.  

“I find that terribly insulting,” said Texas Senator John Cornyn. “They suggest that you can’t be unbiased in deciding a case you haven’t even participated in yet.”

But Senator Dick Durbin of Illinois tied their concern to the president’s very words.  

“This notion that this whole idea of you’re being used for political purposes is a Democratic creation — read the tweets and you have plenty to work with,” Durbin said.  

If the Trump administration successfully does away with the landmark health care legislation, 135 million Americans with preexisting conditions will lose life-saving protections, while another 27 million will lose coverage entirely, Democrats have argued. 

Trump took to Twitter on Monday during day one of Barrett’s confirmation hearing to boast that his administration will provide Americans with “far better” health care than the so-called Obamacare plan, at a lower cost and with better protection for patients with preexisting conditions. He gave no indication of how he plans to make good on the promise or whether his health care plan is forthcoming. 

On Monday, Democrats said that the timing of Trump’s efforts to dismantle the ACA could not be more cruel, with the coronavirus infecting 7 million Americans and killing more than 215,000. 

They continue to call for the GOP to hold off appointing a justice to fill Ginsburg’s seat, saying Barrett’s nomination usurps the right of voters to choose a president to select the lifetime appointee to the high court.  

Late Monday, Graham scheduled the committee vote on Barrett for Thursday morning while the confirmation hearing is still underway. Feinstein called the move “unprecedented” in her more than 25 years on the committee. 

“It’s another example of Republicans ignoring rules and tradition so they can rush this nominee through before the election — and in time to supply a vote to strike down the Affordable Care Act,” the top-ranked Democrat on the committee said in a statement Monday.

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