On the opening day of the Senate Judiciary Committee’s Supreme Court confirmation hearings, Democrats seemed to want to avoid talking about nominee Amy Coney Barrett.
Evidently, polling showed Democrats that their scorched-earth tactics against Brett Kavanaugh backfired in the 2018 Senate races. And they got the memo that the attacks on Barrett’s religious beliefs that they deployed during her appellate court confirmation hearings were likely to go over about as well as a Yankees parade in South Boston. Furthermore, they cannot question the credentials of Barrett, who is widely respected by lawyers regardless of their ideology and earned the American Bar Association’s highest “well qualified” rating.
As a result, Democrats have decided to use the hearings as another platform for their 2020 campaign. Their opening statements were treated simply as another forum for peddling predictable attacks on President Trump and on his administration’s handling of the COVID-19 pandemic. But more than anything, Democrats talked about threats to Obamacare and individuals with preexisting conditions.
Recycling one of their favorite tactics, several Democrats on the committee, including vice presidential nominee Sen. Kamala Harris, spoke in front of large photos of children who have suffered illness, warning that Republicans want to rip health coverage away.
Ostensibly, this was supposed to be tied to the Barrett nomination because on Nov. 10, the Supreme Court is set to hear oral arguments in a case concerning the constitutionality of Obamacare. As a result, the way Democrats presented it, confirming Barrett would be tantamount to eliminating the law as well as its requirement that insurers cover those with preexisting conditions.
In reality, there is zero evidence that Barrett would rule that way if confirmed — and very little reason to believe that the pending challenge to Obamacare will be successful.
The current case, Texas v. California, stems from the interaction between the 2012 Supreme Court decision upholding Obamacare’s individual mandate as a constitutional exercise of congressional taxing power and the 2017 tax law, which repealed the penalties for going uninsured.
Republican state plaintiffs, joined by the Trump administration, argue that because the 2017 law eliminated the tax penalties that were the basis of Chief Justice John Roberts’s 2012 opinion upholding the law, that means it is no longer constitutional.
To strike down Obamacare, the suit would have to win on several levels. One, states will have to prove that they have the standing to sue and thus show injury despite the fact that violating the individual mandate carries no financial punishment. If they pass the standing threshold, states will have to then prove that the individual mandate, which the court ruled constitutional because it was a tax, is now unconstitutional just because the tax was lowered to $0. Even if they get the justices to agree to that, however, to strike down all of Obamacare, they also have to convince them that the law cannot otherwise function without the mandate penalties intact — despite the fact that in 2017, Congress voted to keep the law in place and eliminate the penalties. Given that the three liberal justices and Roberts are never going to vote to strike down the entire law, the plaintiffs would have to get all five remaining justices to agree (assuming Barrett is even confirmed in time to participate in the case).
In an effort to bolster their claim that Barrett would overturn the entire law, Democrats pointed to comments Barrett made that were critical of the 2012 Supreme Court decision. However, many legal scholars who criticized that decision have been blistering in their critique of the current case, which is much weaker and raises separate legal questions.
Democrats clearly see Barrett’s confirmation as a fait accompli. Without the ability to stop it or make a compelling argument for why she lacks the qualifications to be on the Supreme Court, they are clearly attempting to turn the hearings into a campaign rally.
