This will get hailed as a leadership move only if Senate Democrats manage to restrain themselves. In reality, though, Joe Biden’s only following along with the prevailing wisdom within his party. This morning, Biden told reporters that questions about Amy Coney Barrett’s faith should be off limits in her Senate confirmation hearing this week.
Instead, Biden wants his fellow Democrats to stay more on message. Never mind that this message is even more off base than questions about her faith, even if it’s a far more legitimate topic:
— Bo Erickson CBS (@BoKnowsNews) October 12, 2020
Presidential candidate Joe Biden says Senate Democrats should make health care the focus of Amy Coney Barrett’s Supreme Court confirmation hearings, not the conservative judge’s Catholic faith.
Biden is also a practicing Catholic. He told reporters ahead of a campaign trip to Ohio on Monday he doesn’t think “there’s any question about her faith.”
Biden says the more important matter is that “this nominee says she wants to get rid of the Affordable Care Act.”
Before Barrett was a federal judge, she questioned the reasoning behind Chief Justice John Roberts’ majority opinion upholding the 2010 health care law. The law is being challenged again, with oral arguments set for Nov. 10, a week after the election.
Just because she questioned Roberts’ reasoning doesn’t mean that she “wants to get rid of the Affordable Care Act.” For example, even pro-abortion lawyers have questioned the reasoning behind Roe v Wade while supporting its outcome. Even Ruth Bader Ginsburg questioned the reasoning behind Roe, calling it faulty and expressing unhappiness that it short-circuited the political process:
For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.
Ginsburg and Professor Geoffrey Stone, a longtime scholar of reproductive rights and constitutional law, spoke for 90 minutes before a capacity crowd in the Law School auditorium on May 11 on “Roe v. Wade at 40.”
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
So questioning the reasoning of a Supreme Court decision does not equate to a determination to overturn it. Besides, this is hyperbole anyway; no one really expects the upcoming case of California v Texas to provide that pretext anyway. It’s a Hail Mary play by the Trump administration based on a severability argument that conservatives have lost before. The part of the law that Roberts’ reasoning explained was the individual mandate, which now carries no enforcement mechanism at all, which means no one has standing to challenge it even setting aside stare decisis.
Andy McCarthy provided a clear-headed analysis of California v Texas two weeks ago, in which he declared his doubts that “a single justice will vote to hold the whole of the ACA unconstitutional.” (Andy re-upped the argument today, in fact, in reaction to the hearing.) He counts at least five votes to uphold severability arguments that would moot this challenge, and Barrett’s more likely than not to defer to Congress as well. Barrett’s previous writings on stare decisis and the requirement of the judiciary to defer to Congress in all but explicitly unconstitutional actions would suggest a far different outcome than Biden hyperbolizes here. If Republicans want to repeal ObamaCare, they’ll have to do it in Congress — and the next time, they should have a plan to replace it first.
Still, it makes for a tasty way for Democrats to frame the election, if not Barrett’s nomination. CBS’ Nancy Cordes reported this morning that Democrats will use the hearing to push their election-cycle health-care messaging, exploiting the national coverage for hours of earned-media advantage … even though they know Barrett won’t be able to commit one way or the other on policy choices:
.@nancycordes reports Democrats in Amy Coney Barrett's confirmation hearings intend to stay focused on Obamacare, and whether Barrett supports Trump administration's attempts to end it: "Those are the real stakes here. They don't want to get distracted" https://t.co/uScvfX9o80 pic.twitter.com/fVZRafG6S4
— CBS News (@CBSNews) October 12, 2020
That’s what makes Biden’s call today nothing more than a rubber stamp rather than leadership. Senate Democrats, or at least most of them, reached this conclusion two weeks ago. At the same time, they also crafted this strategy, recognizing that they couldn’t derail the confirmation but instead needed to find ways to benefit from it. This strategy might be their smartest decision yet on the Barrett nomination, and far better than their shameful character assassination of Brett Kavanaugh.
That doesn’t mean Republicans have to ignore previous Democratic attacks on Barrett over her faith. More than one Senate Republican on the Judiciary Committee reminded viewers of that history. Josh Hawley delivered this slam on their “bigotry,” for which Senate Democrats would prefer not to add more fodder. Or should.
Sen. Josh Hawley criticizes Democrats in opening statement at Amy Coney Barrett hearing: “When you tell somebody that they’re too Catholic to be on the bench, when you tell them they’re going to be a Catholic judge, not an American judge, that’s bigotry.” https://t.co/mUCa1XcbGy pic.twitter.com/7EfLYGCTbT
— ABC News (@ABC) October 12, 2020