Senate Democrats reimagine the Supreme Court confirmation process

Day 1 of the Senate Judiciary Committee confirmation hearing for Judge Amy Coney Barrett’s nomination to the U.S. Supreme Court is in the bag, and one thing seems apparent. As our friends at The Dispatch put it, her confirmation “appears inevitable”. So inevitable, in fact, that Senate Democrats, who oppose her nomination, spent the whole day talking about something else – the Affordable Care Act, or “Obamacare”.

Obamacare is up before the Supreme Court once again this year, as it has been a half dozen times before. California v. Texas will ask the Justices to decide whether the whole ACA must fall if the individual mandate to carry health insurance is held unconstitutional. It’s highly unlikely that the Court will affirm the result below and bring down the healthcare system created by the ACA like a house of cards, but that doesn’t stop the Democrats from using that scenario as a political hobby horse. One presumes that the pro-abortion senators have concluded that health care polls better than abortion on demand.

Seeking to score points ahead of the election in November, the Democratic members of the committee pounded on her supposed views on the ACA, so much so that Senator Marcia Blackburn (R-TN) accused Democrats of “trying to create a panic” over health care. Democrats appeared on camera with giant posters behind them of “real people” from their states whom they say have been helped by the healthcare law. They charged that Barrett was intended as a “judicial torpedo” fired by the White House against the ACA (Sheldon Whitehouse of Rhode Island). Senator Richard Blumenthal of Connecticut assured Barrett that he would oppose her nomination as an “extremist ideological judge.” Barrett’s nomination, he said, was the result of “special interests who want an activist – someone who will legislate from the bench.”

The result may have been passable courtroom TV, but in terms of what the Judiciary Committee is supposed to be doing it was a train wreck. Democratic senators condemned Barrett for being “political” and results-oriented in her views while at the same time several of them called on her to commit to upholding the law even before the Court has heard the case – something that, as Judge Barrett has pointed out to the committee, the canons of judicial ethics forbids her from doing. The irony appears to have been lost on them.

Senator Ted Cruz (R-TX) called the Democrats’ focus on the ACA “the dog that didn’t bark,” harkening to Arthur Conan Doyle’s metaphor in Hound of the Baskervilles. Democrats were avoiding the real question that the committee was constitutionally charged with considering – Judge Barrett’s qualifications – because they know her credentials are “unassailable”, Cruz said.

Judge Barrett concluded her opening statement yesterday with the words, “I believe in the power of prayer.” She may need to call on a higher power this week for the patience to endure a barrage of questions that are not about her or her qualifications for the Supreme Court, but to attack the President and boost the Democratic Party’s chances at regaining control of the Senate.