Barrett confirmation hearing heats up with more tense exchanges over ObamaCare

October 14, 2020 

The Supreme Court confirmation hearings for Judge Amy Coney Barrett heated up Wednesday afternoon with more tense exchanges over the Affordable Care Act (ACA), specifically with Sen. Amy Klobuchar, appearing to suggest that Barrett was publicly lobbying for a judicial job from Trump by writing a law review article that expressed suspicion of a past ACA ruling.

Meanwhile, Barrett continued to tell Democrats she couldn't answer many of their questions on policy, something that Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., defended her on.

"Sen. [Kamala] Harris mentioned about how much more candid Justice Ginsburg was... I don't agree with that," Graham said. "I think Justice Ginsburg established the Ginsburg for a reason, but what she cited in terms of evidence of candor was a really articulate statement by Justice Ginsburg as to why she embraced the pro-choice point of view."

Graham added: "I think it's been clear to everybody who's been watching these hearings that you and your family are pro-life. That you are a practicing Catholic and you adhere to the tenents of your faith. But I hope people also understand that you have made a pledge to the committee and the country at large that you will set aside whatever religious views you have when it comes time to decide the law."

Klobuchar, D-Minn., after the hearing's lunch break picked up on a point hammered by Sen. Kamala Harris, D-Calif., Tuesday. She asked about a 2017 law review article in which Barrett criticized the reasoning of the majority opinion in NFIB v. Sebelius, the original Supreme Court ruling that upheld the ACA's constitutionality by reading the fine associated with the individual mandate to purchase health insurance as a tax. Klobuchar implied the article was some sort of signal to Trump that he should select her for a judgeship.

"The position of the Trump administration is to throw the whole thing out," Klobuchar said of the administration's stance in the California v. Texas case set to be argued before the Supreme Court on Nov. 10. The was referencing talk of the "severability doctrine" that went on earlier in the hearing, in which Barrett made clear she would consider leaving most of the ACA in place if the Supreme Court rules the individual mandate unconstitutional.

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"There have literally been hundreds of statements," by Trump and Republicans opposing the ACA, Klobuchar said. She continued to point out that Trump has openly favored the repeal of the ACA since at least 2015, then began harshly questioning Barrett on the timing of her 2017 law review article.

"You're suggesting that I have animus or that I cut a deal with the president," Barrett shot back. "I was very clear yesterday that isn't what happened."

When Klobuchar drilled down further on the timing of the article, Barrett said she believed she wrote it before Trump was even set to be the president.

"I suspect that if the article was published in January that I wrote it sometime before the presidential election. And again I want to stress I have no animus to or agenda for the Affordable Care Act. So to the extent you're suggesting this was like an open letter to President Trump, it was not."

The exchange continued an intense focus by Democrats on the ACA both Tuesday and Wednesday morning, For much of Wednesday morning the focus was on "severability," and a definition of the term by Barrett prompted committee Ranking Member Dianne Feinstein, D-Calif., to tell Barrett, "I'm really impressed, thank you."

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"So if you picture severability being like a Jenga game, it's kind of if you pull one out ... will it all stand or if you pull two out will it still stand?" Barrett said. "I think the doctrine of severability as it's been described by the court serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work. Severability strives to look at a statute as a whole and say 'would Congress have considered this provision so vital that kind of in the Jenga game, pulling it out, Congress wouldn't want the statute anymore?'"

Graham also asked Barrett about severability, and Barrett said that when judging cases "the presumption is always in favor of severability."

A number of other hot-button issues were also discussed on Wednesday, with Barrett largely passing on weighing in, citing her obligation to remain neutral in any potential Supreme Court case.

"Are absentee ballots ... an essential way for millions of Americans to vote right now?" Klobuchar asked Barrett. Barrett declined to weigh in.

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"That's a matter of policy of which I can't express a view," Barrett said.

Sen. Patrick Leahy, D-Vt., asked Barrett about the Emoluments Clause -- under which President Trump has been criticized -- and whether she could express an opinion on it. Barrett responded that "The Emoluments Clause, it's under litigation ... as a matter that's being litigated it's very clear that it's one I can't express an opinion on."

Sen. Dick Durbin, D-Ill., asked Barrett about her non-response to the possibility Trump could claim the right to delay an election.

"I've given that response to every hypothetical I've been asked," Barrett said. "I do that because it would be inappropriate for me to make a comment."

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Barrett also declined to weigh in on a case about whether states can ban contraceptives, saying that because the substantive due process right to privacy at the base of that case and many others is still being litigated in courts.

"It's something that I can't opine on, particularly because it does lie at the base of substantive due process doctrine, which is something that continues to be litigated in court today," Barrett said.

Sen. Chris Coons, D-Del., meanwhile worried about Barrett's identification as an originalist, saying it would make her more likely to overturn precedent.

"You've also recognized originalists like yourself are more likely to overturn precedent," Coons said. "The disturbing picture to me overall ... about precedent is that I think there's been a movement amongst originalists ... 'that they've abandoned the claim that one should be an originalist because originalism produces more restrained judges.'"

Barrett replied that her record as a judge currently on the 7th U.S. Circuit Court of Appeals respects precedent and added that she believed Coons was taking some of her past statements out of context.

But despite all the hammering of Barrett's potential ACA stance by Democrats, and their emphasis that they believe she will be a much different justice than late Justice Ruth Bader Ginsburg, Republicans continue to say they are highly supportive of Barrett and there has been no major moment where Barett appeared stumped or appeared out of her comfort zone.

Also of note on Wednesday was a recess due to technical difficulties right at the beginning of the questioning from Sen. Richard Blumenthal, D-Conn. It was the only major technical issue of the third day of hearings for Barrett after the first two days saw feedback from the audio of some of the senators attending the hearing remotely and instances of those senators' phones dinging with texts while they were speaking.

The recess followed potentially the most Kavanaugh-esque moment of the hearings. "I did have a glass of wine, I'll tell you that I needed that at the end of the day," Barrett said of Tuesday's proceedings.

I did have a glass of wine, I'll tell you that I needed that at the end of the day

-- Judge Amy Coney Barrett

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With Wednesday likely to be the final day the Senate Judiciary Committee will hear from Barrett before quizzing outside panels on Thursday, Barrett is nearing the finish line of her part in the confirmation process. Graham plans to begin the markup of her nomination on Thursday and hold it over for a committee vote on Oct. 22. After that, the nomination will go to the Senate floor where barring any surprises -- in particular, another coronavirus breakout in the Senate GOP caucus -- it appears Senate Majority Leader Mitch McConnell has the votes to confirm Barrett before October is out.

"I believe she will be confirmed no later than Tuesday, a week before the election," Graham said earlier this week on "Sunday Morning Futures."

"That's my hope," Graham added. "It will be up to Senator [Mitch] McConnell what do after the 22nd, but we can easily get her confirmed before the election."

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