- The Washington Times - Monday, October 12, 2020

Senate Democrats, who have few chances to derail Judge Amy Coney Barrett’s elevation to the Supreme Court, sought to turn her confirmation hearings into a referendum on the fate of Obamacare, saying Monday that her vote in an upcoming case means “life or death” for millions of Americans who rely on the health care law.

In a coordinated attack, each Democrat on the Senate Judiciary Committee held up a photo Monday of an American who has health care coverage because of the Affordable Care Act and who could face financial ruin or even die should the law disappear.

They also insisted that Republicans are rushing Judge Barrett’s nomination so she can be a vote to strike down the law in a case scheduled to be heard Nov. 10.

“It is life or death for thousands if not millions of Americans,” said Sen. Richard J. Durbin, Illinois Democrat. “We believe the ACA is hanging in the balance. We will drive that issue home.”

It was a stark political argument, almost entirely divorced from the legal scholarship and constitutional debates that usually characterize high court confirmations.



But Democrats conceded that they have little chance to block Judge Barrett’s confirmation unless they can persuade some Republicans to defect and join them — or at least to have voters punish Republicans over Obamacare at the ballot box in November.

“We don’t have a clever procedural way to stop a sham,” said Sen. Amy Klobuchar, Minnesota Democrat. “It shows real messed-up priorities for the Republican majority.”

Sen. Sheldon Whitehouse, Rhode Island Democrat, said Judge Barrett would be a “judicial torpedo” aimed directly at what is left of Obamacare. The health care strategy paid big dividends for Democrats in the 2018 midterm elections, and they are hoping for a repeat this year.

But Republicans complained that Democrats were distorting the point of the hearings by trying to turn them into a health care scare tactic.

“Today, of every Democrat that has spoken, we have heard virtually not a single word about Judge Barrett,” said Sen. Ted Cruz, Texas Republican. “I think part of the reason for that is that on any measure Judge Barrett’s credentials are impeccable.”

Indeed, she received a “well-qualified” rating from the American Bar Association on Monday. In the past, Democrats have called that rating the “gold standard” to evaluate a judge.

Patricia O’Hara, the former dean of the Notre Dame Law School, delivered a fierce defense of the judge. She said she has met a number of Supreme Court justices and Judge Barrett possesses the same qualifications “in abundance.”

“She is brilliant but humble, fair and impartial but empathetic, open-minded and respectful of differences, a skilled listener and able to build consensus, generous especially to those who need,” said Ms. O’Hara, who hired Judge Barrett at Notre Dame nearly two decades ago.

Judge Barrett, wearing a black mask, sat at a socially distanced witness table as Democrats and Republicans sparred over her.

When it was time for her opening statement, she used the opportunity to reintroduce the country to her seven children and to defend her view of a judge as a neutral decider of law, not an ideological warrior.

“Courts have a vital responsibility to the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life,” she told senators. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”

She also thanked those who have been praying for her.

“I believe in the power of prayer, and it has been uplifting to hear so many people are praying for me,” she told the committee.

Judge Barrett’s 2017 confirmation to a seat on the 7th U.S. Circuit Court of Appeals was dominated by questions about her Catholic faith.

Mr. Durbin demanded to know whether she considered herself an “orthodox Catholic” and prodded her to opine on whether Pope Francis is a good Catholic. Sen. Mazie K. Hirono, Hawaii Democrat, called her a “Catholic judge,” and Sen. Dianne Feinstein, California Democrat, said “the dogma lives loudly within you.”

This week, with the country watching, Democrats insisted there won’t be a repeat of that line of attack.

“We have taken an oath to a Constitution which says no religious test. Enough said,” Mr. Durbin said.

Democratic presidential nominee Joseph R. Biden echoed the members of his party while on the campaign trail.

“No, [her] faith should not be considered,” Mr. Biden said while traveling to Ohio.

Mr. Biden, though, has blasted the Republicans’ rush to confirm Judge Barrett. He said whoever wins the Nov. 3 presidential election should make the nomination.

His nominee for vice president, Sen. Kamala D. Harris, is a member of the Senate Judiciary Committee and participated in Monday’s hearing by video.

She said the entire proceedings should have been delayed for health reasons.

“This hearing has brought together more than 50 people to sit inside of a closed-door room for hours while our nation is facing a deadly airborne virus,” she said, adding that senators should work instead on a coronavirus relief bill.

Ms. Harris predicted that Judge Barrett would “undo” the legacy of Justice Ruth Bader Ginsburg, whose death last month created the vacancy.

“Our voting rights are at stake. Workers’ rights are at stake. Consumers’ rights are at stake. The right to safe and legal abortion is at stake. Holding corporations accountable is at stake. And so much more,” Ms. Harris said.

Committee Chairman Lindsey Graham, South Carolina Republican, pushed back on demands for delays because of the coronavirus and rejected calls to have COVID-19 tests for those in the hearing room.

“There are millions of Americans going to work today, in restaurants, police officers, you name it, who can’t demand they won’t come to work unless everybody around them is tested, whether they need to or not,” he said.

Most committee members attended in person. They included Sen. Mike Lee, a Utah Republican who tested positive for COVID-19 a week after attending the Sept. 26 White House announcement of Judge Barrett’s nomination.

Sen. Thom Tillis, a North Carolina Republican, who also tested positive after attending the announcement, appeared by video.

The Obamacare case coming before the high court weighs whether the law is still legal after Republicans zeroed out the tax penalty for not having insurance, which the court ruled in 2012 made the law constitutional.

Four justices who backed that position are still on the court, and Ginsburg was a fifth. Judge Barrett criticized that 2012 ruling, and Democrats said that means she would strike down the law now, given the chance.

But Sen. Charles E. Grassley, Iowa Republican, said the attacks against the nominee’s record were “outrageous.”

“As a mother of seven, Judge Barrett clearly understands the importance of health care,” Mr. Grassley said.

President Trump weighed in on Twitter, complaining that Democrats were being given too much of a stage.

“The Republicans are giving the Democrats a great deal of time, which is not mandated, to make their self serving statements relative to our great new future Supreme Court Justice,” Mr. Trump tweeted. “Personally, I would pull back, approve, and go for STIMULUS for the people!!!”

Mr. Graham, though, said Americans deserved to hear from Judge Barrett and said Democrats deserved a chance to make their case. Each of the 22 senators on the committee were given 10 minutes to make opening statements Monday.

“I doubt it’s going to change any minds in terms of how we vote, but I like the idea that a lifetime appointee to the Supreme Court can be challenged, can be tested and can be understood by the public,” Mr. Graham said. “So we will proceed for the way we have in the past.”

Mr. Graham scheduled the committee vote for 9 a.m. Thursday, the morning of the last day of hearings.

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