Democrats zeroed in on key issues surrounding health care in the third day of Judge Amy Coney Barrett’s Supreme Court nomination hearing Wednesday, as Republicans argued members of the other party have overblown their criticisms of a qualified judge.
Barrett, who was nominated to her current post on the 7th Circuit by President Donald Trump, would replace the late Justice Ruth Bader Ginsburg, a liberal legal icon.
Illinois Democratic Sen. Richard J. Durbin said there’s an “orange cloud” over her nomination because of Trump’s stated goal of overturning the ACA and selecting Supreme Court justices who would do so.
The current ACA case before the court bears a resemblance to previous Supreme Court cases where Barrett criticized the majority opinion’s reasoning. But it hinges largely on the legal concept of “severability,” or whether a smaller part of the law that is found unconstitutional can be wiped out while leaving the rest of the law intact.
Trump and the challengers say that the individual mandate is such a central provision to the whole 2010 law that if the Supreme Court finds it unconstitutional, that in turn means the remainder of the 2,000-page law “must also fall.”
Traditionally the federal courts look at what Congress intended to accomplish with a law, and the House and other defense of the law argue that the intent is clear. Congress, they say, eliminated the penalty for individuals who don’t purchase health insurance but left the rest of the 2010 law intact and operating for the past three years.
Durbin said Barrett had already tipped her hand in the case by pointing to the severability argument as “key” to the case when other issues are also at play.
“That’s a legal opinion. But the court will only reach the severability question, if it first finds that eliminating the penalty for the individual mandate render the individual mandate unconstitutional. Isn’t that right?” Durbin said.
Barrett argued that she was simply describing how much focus the litigants and press have put on the argument over whether the individual mandate can be severed from the rest of the law. She also argued the 2017 tax law changes the issues in the case from previous ones where she has criticized the majority opinion.
“It’s a descriptive. I didn’t say how I would rule on severability and I didn’t say ... I would interpret the zeroed-out provision to be a penalty rather than a tax,” Barrett said.
The Supreme Court will hear oral arguments in the case the week after the election – leaving enough time for a Justice Barrett to participate. Senate Republicans have said they intend to hold a floor vote on her nomination before the end of the month.
Barrett analogized severability to a game of Jenga. If the Supreme Court finds one provision in a statute unconstitutional, Barrett said, the court has to analyze whether the rest of the pieces line up with what Congress intended or the whole statute must fall.
“I think insofar as it tries to effectuate what Congress would have wanted, it’s the court and Congress working hand in hand,” Barrett said.
Republicans on the panel, who have frequently worked to overturn the health care law, argued it is unlikely Barrett would vote to overturn the law. Sen. John Cornyn, R-Texas, facing a tough reelection race, questioned Barrett over whether she would have an open mind.
“I have certainly no agenda. I’m not on a mission, I’m not hostile to the ACA at all,” Barrett said.
Judiciary Chairman Lindsey Graham, R-S.C., framed Democratic criticism of Barrett as a reaction to the ascent of a conservative woman appointed by Trump.
“This hearing, to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You’re going to shatter that. I have never been more proud of the nominee than I am of you,” Graham said.
Durbin continued to press Barrett about her views on presidential power and the ability of Trump to pardon himself or delay November’s election. Barrett said she doesn’t believe anyone is above the law, but declined to engage Durbin on those potential cases.
“I really can’t say anything more than I’m not going to answer hypotheticals,” Barrett said.
Durbin also spotlighted a dissent she wrote while sitting on the Seventh Circuit that would have allowed a man convicted of a felony to purchase a firearm because he had not been convicted of a violent crime. Durbin argued Barrett’s opinion treated the right to vote as a secondary one.
“I did not intend, and if my words communicated that, it was a miscommunication. I’ve never denigrated the right to vote,” Barrett said.
In the second round of questioning, Judiciary Committee members had only 20 minutes to ask questions and elicit answers from Barrett, down from 30 minutes in the first round on Tuesday.
When Sen. Charles E. Grassley’s turn came up, he asked to not start the clock yet.
“Don’t stop – don’t start the clock yet. He’s not ready. For five bucks, I won’t start the clock,” joked Graham.
When Grassley began to address Barrett, Graham jumped in.
“Start the clock,” he said, to laughter in the room.
As the third day wore on, Barrett, who has been stoic and seemingly indefatigable throughout the hearings, perhaps showed her first sign of tiring.
“I will approach every case with an open wine, er, mind,” she told the panel.
Barrett’s public questioning ends with Wednesday’s hearing. On Thursday, the committee will hear from panels of witnesses from both parties.