Hearings show division over Supreme Court

The Senate confirmation hearings for Amy Coney Barrett may lack for political drama, but they are still instructive. They are revealing deep fault lines over the Supreme Court, and how Democrats view it as a minilegislature, rather than a judicial body.

Democrats are asking very little about the actual law or Judge Barrett’s jurisprudential thinking. Instead, one after another, Democrats have used their time to focus on a parade of policy horribles if she is confirmed. And for emotional effect, they brought along photo displays of children and women who would supposedly be her victims on health care, abortion, gun violence and more.

All of this distorts the role of a judge, who has to rule based on what the law is, not on what she would want it to be. “Judges can’t just wake up one day and say ‘I have an agenda. I like guns. I hate guns. I like abortion, I hate abortion’ and walk in like a royal queen and impose their will on the world,” Judge Barrett said Tuesday. But that is lost on Democrats, who are treating the hearings like a campaign rally.

Start with their focus on Judge Barrett as a threat to health insurance. Republican state attorneys general, joined by the Trump Administration, argue in a case that the Court will hear on Nov. 10 that the Affordable Care Act should be struck down. Recall that Chief Justice John Roberts in 2012 upheld the individual mandate to carry health insurance as a tax. But the 2017 tax reform zeroed out the financial penalty for not being insured. The AGs say that because there now is no tax, the entire law should be struck down.

As we’ve argued, the AG suit is political and legal malpractice because the lawsuit has almost no chance of success.

Yet Democrats assert that Judge Barrett’s appointment to the Court would threaten protections for millions of Americans with pre-existing conditions, insurance coverage for young adults, free mammograms and birth control as well as lead to higher prescription costs for seniors.

Imagine if GOP Senators displayed photos of crime victims for a Democratic nominee who had overturned a conviction on appeal? They would be skewered as demagogues.

California Sen. Dianne Feinstein asked how Judge Barrett would handle the ACA’s lifetime coverage caps. Judge Barrett duly noted she would consider this like any “issue that would arise under the Affordable Care Act or any other statute should be determined by the law—by looking at the text of the statute, by looking at precedent.” Good answer.

Coverage caps are a policy issue for Congress.

Democrats also flogged Judge Barrett for criticizing the Chief Justice’s creative interpretation of the individual mandate as a tax. She joins a long queue there. But Judge Barrett replied: “I am not hostile to the ACA. I am not hostile to any statute that you pass. ... I apply the law. I follow the law. You make the policy.” She also said “reliance interests,” such as the number of people who gained insurance under ObamaCare, have to be considered now that the law has been in place for six years.

Democrats also distorted the risks that the Court will overturn Obergefell v. Hodges that divined a right to samesex marriage in the Constitution because Justice Antonin Scalia dissented and Judge Barrett was his clerk. Yet Justice Scalia dissented because the Court was imposing policy preferences by diktat.

As he explained, “the substance of today’s decree is not of immense personal importance to me,” but the judiciary’s hubris in divining a new right signified “that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

He was right then, but tens of thousands of same-sex Americans have been married since. This is the definition of a “reliance interest,” and conservative judges take it seriously. There is no way a conservative Court is going to invalidate those marriages.

The current “conservative” Court has already shown it is more heterodox than one dominated by liberals. That’s because originalists seek to interpret laws based on the text and the Constitution. Everything we know suggests Judge Barrett will rule in the same way, and this should reassure the public that the Court will be properly modest in interpreting the law as it is.

Democrats are doing a great disservice to the law and judiciary by treating these hearings like an emotive political ad. They are telling voters that the courts are nothing more than another arena for political disputes. Keep doing that and soon the Supreme Court will be as unpopular as Congress — which may be their real goal as they prepare the ground to pack the Court next year.