In the past five years, we have seen the Turtle (Senator Mitch McConnell) go from the unprecedented blocking consideration of a Supreme Court nomination made eight months before an election change into the Hare trying to force an unprecedented vote on a Supreme Court nomination made after Labor Day prior to the election. While the Senate did not have to approve the nomination of Merrick Garland in 2016, the very rules that the Republicans are relying on now to justify their consideration of Amy Coney Barrett mandated giving Judge Garland a hearing and a vote (at least a procedural vote). And given the modern procedures, giving Judge Barrett a vote before the election requires cutting the process short. The simple fact is that conservative Republicans are trying to pack the court. While, barring some type of miracle, Democrats will not be able to prevent a vote from taking place before the election, there are some issues that should be front and center at the confirmation hearings that will take place this week.
At the top of the list is health care. While the nominee will probably try to evade the question, it is important to make crystal clear that — if confirmed on the current schedule — Judge Barrett may be the one vote that removes the current protection for people with preexisting conditions. In the November argument session, the Supreme Court will consider the constitutionality of the Affordable Care Act. This case arises from the 2012 decision upholding the Affordable Care Act. In that decision, after rewriting the law to avoid finding that the Affordable Care Act was authorized by the impact on interstate commerce, the 5-4 majority found that the individual mandate was authorized as a tax. When the Republican Congress failed to repeal the entire act but did repeal the tax, Texas and other red states filed the current suit alleging that the repeal of the tax also repealed the individual mandate and the rest of the Affordable Care Act.
While Judge Barrett will probably try to avoid talking about the merits of the case (as she will be sitting on the Supreme Court when this case is heard), she should be at least forced to explain her approach to one of the key issues in the case. That issue is “severability.” Stripped of legal jargon, severability is about whether one invalid clause in a bill or statute requires the courts to reject the entire bill. Under most of the recent decisions, there is no plausible basis for the Supreme Court to strike the entire Affordable Care Act because Congress expressly decided to repeal one part and leave the rest intact.
The second issue is whether people should be able to claim a religious exemption from civil rights laws. Again, this issue is coming before the Supreme Court. While Judge Barrett will thus try to avoid committing on the specific issue of gay rights vs. religious freedom, she should be pressed to address it at a more general level (e.g. race, gender). Simply put, even though there have been religious objections to racial equality and gender equality (including the group that Judge Barrett belongs to), nobody is willing to say that there should be an exemption to racial equality and gender equality. Those ships have long sailed. It’s anti-gay bigotry that is still acceptable to the far right and that has to be made clear.
The final issue is abortion. This issue is tricky. It is highly unlikely that the Supreme Court will ever expressly overrule Roe. The dirty secret is that the Casey decision in 1989 while nominally reaffirming Roe also substantially modified Roe. Instead of the bright line trimester analysis put forth in Roe, Casey created a fuzzy “substantial burden” test. Because substantial burden is a fuzzy test, the conservative majority can uphold almost every statute restricting abortion without ever formally overruling Casey or Roe. While there is no case presently before the Supreme Court, there are so many state restrictions passed in the last four years working their way up that it will almost be impossible to get Judge Barrett to commit on any particular restriction. However, Judge Barrett should not be allowed to get away with a token commitment not to reverse Roe. Instead, she should be pressed to put some meat on the bones of what she views as a substantial burden.
Of course, it is going to be hard to get any firm answers. The questioning format makes it easy for a nominee to evade the hard questions. Whether the Democrats on the committee choose to cede their time to one questioner (to assure follow-ups and prevent evasion) or simply work out a strategy in advance, Democrats need to put ego to the side. This nomination is not the time for Democratic Senators to try to gain personal attention. Instead, it is necessary to make clear how far out of the mainstream Judge Barrett is so that every GOP Senator in a swing state who forces the nomination through — Senator Tillis, Senator Ernst, Senator Gardner, Senator McSally, Senator Laffler, Senator Perdue, we mean you — has to pay the price the following week at the polls.
