In one of the Democrats’ more effective lines of attack on Supreme Court nominee Amy Coney Barrett, Sen. Kamala Harris, the Democratic nominee for vice president, charged that Barrett had been picked by President Trump solely because she would vote to repeal the Affordable Care Act.
“Prior to your nomination, were you aware of President Trump’s statements committing to nominate judges who will strike down the Affordable Care Act?” Harris asked Barrett. “And I’d appreciate a yes or no answer.”
Barrett said she wanted to “be very careful” with her answer because she was under oath. “As I’m sitting here, I don’t recall seeing those statements, but if … let’s see, I don’t recall seeing or hearing those statements, but I don’t really know what context they were in, so I guess I can’t really definitively give you a yes or no answer,” Barrett responded.
The back-and-forth between the two women came late in the first day of questioning before the Senate Judiciary Committee. It was significant because, if both presidential polls and congressional vote tallies hold, Harris will be the next vice president of the United States and Barrett will assume a seat on the high court.
A week after the presidential election that has the Biden-Harris ticket winning by a significant margin, the Supreme Court will rule in Texas v. California, a case that, if decided in favor of Texas, could nullify a key provision of the Obama-era health law, which extended insurance coverage to millions.
All day, Barrett — currently a federal appellate judge — resisted saying how she would rule in Texas v. California or any other case related to Obamacare, as the Affordable Care Act is informally known. More such cases are bound to come, as Republican attorneys general have consistently challenged the law’s constitutionality.
It fell to Harris, a former San Francisco prosecutor and, later, the attorney general of California, to tightly tether Barrett to the repeal effort. “Since President Obama signed the Affordable Care Act into law, Senate Republicans’ number one priority has been to tear it down,” Harris said. As other Democrats have pointed out, there have been 70 such legislative efforts in Washington. All of them have come to naught.
That “decade of failure,” as Harris called it, has left the federal courts as Republicans’ best recourse to eviscerate the law. Though much of her allotted half hour was given over to the kind of speechifying that tends to mark high-profile hearings, Harris did ask a brutally simple question that seemed to throw Barrett off guard.
In 2017, while she was teaching at Notre Dame, Barrett published a book review in which she said that in a ruling that protected part of the Affordable Care Act, Chief Justice John Roberts — a George W. Bush appointee who has been a disappointment to conservatives — “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Harris wondered how long after the publication of that opinion she was first nominated by Trump (at that time, the nomination was for the Seventh Circuit of Appeals, where she currently sits).
“I don’t remember the timing of that article,” Barrett said. Harris quickly reminded her that it was published in January 2017, just five months before she was selected for the federal bench by Trump, who has taken advice on judicial nominations from the Federalist Society and Heritage Foundation.
The obvious implication was that Barrett’s anti-ACA stance made her attractive to conservatives. Democrats had similar concerns about Brett Kavanaugh, who appeared on a list of potential Supreme Court nominees shortly he issued a ruling in an abortion-related case known as Garza v. Hargan.
Despite the protestations Barrett had been making for two days running about her loyalty to a rigorous judicial constitutionalism, Harris neatly tied her to a policy outcome Republicans are desperate to achieve. “The Affordable Care Act and all its protection hinge on this seat, and the outcome of this hearing,” she argued.
The point was not necessarily original, but either because of her national prominence or her history as a prosecutor, Harris seemed to break through where other Democrats could not.
Later, as she was being questioned by Harris about immigration, Barrett said “every case has consequences on peoples’ lives,” and that considering those real-life consequences was “part of the judicial decision-making process.” That was at odds with her oft-repeated promise to consider only the original meaning of the Constitution when deciding cases.
Harris pounced, noting that among these consequences of repealing the Affordable Care Act would be the loss of coverage for millions. Barrett said she would “consider” the issue, were things come to that.
Effective as Harris have been, she is not likely to convince any Republicans to vote against Barrett. At the same time, relentless reminders that Trump and Trump-appointed judges want to repeal the Affordable Care Act could prove deleterious to Republican prospects on Election Day.