Democrats zeroed in on key issues surrounding health care Wednesday on the third day of Supreme Court nominee Amy Coney Barrett’s confirmation hearings, as Republicans argued members of the other party have overblown their criticisms of a qualified judge.
Barrett, whom President Donald Trump nominated to her current post on the 7th U.S. Circuit Court of Appeals, would replace the late Justice Ruth Bader Ginsburg, a liberal legal icon.
Illinois Democratic Sen. Richard J. Durbin said there’s an “orange cloud” over her nomination because of Trump’s stated goal of overturning the 2010 health care law and selecting Supreme Court justices who would do so.
The current health care law case before the high court bears a resemblance to previous Supreme Court cases in which Barrett criticized the majority opinion’s reasoning. But it hinges largely on the legal concept of "severability," or whether a smaller part of the law that is found unconstitutional can be wiped out while leaving the rest of the law intact.
Trump and the challengers in that case say that the individual mandate is such a central provision to the whole 2010 law that if the Supreme Court finds it unconstitutional, it would mean the remainder of the 2,000-page law “must also fall.”
Traditionally the federal courts look at what Congress intended to accomplish with a law, and the House and other defenders of the law argue that the intent is clear. Congress, they say, eliminated the penalty for individuals who don’t purchase health insurance but left the rest of the law intact and operating for the past three years.
Durbin said Barrett had already tipped her hand in the case by pointing to the severability argument as “key” to the case when other issues are also at play.
“That's a legal opinion. But the court will only reach the severability question, if it first finds that eliminating the penalty for the individual mandate render the individual mandate unconstitutional. Isn't that right?” Durbin said.
Barrett argued that she was simply describing how much focus the litigants and press have put on the argument over whether the individual mandate can be severed from the rest of the law. She also argued the 2017 tax law changes the issues in the case from previous ones in which she has criticized the majority opinion.
“It's a descriptive. I didn't say how I would rule on severability and I didn't say … I would interpret the zeroed-out provision to be a penalty rather than a tax,” Barrett said.
The Supreme Court will hear oral arguments in the case the week after the election — leaving enough time for a Justice Barrett to participate. Senate Republicans have said they intend to hold a floor vote on her nomination before the end of the month.
Barrett analogized severability to a game of Jenga. If the Supreme Court finds one provision in a statute unconstitutional, Barrett said, the court has to analyze whether the rest of the pieces line up with what Congress intended or the whole statute must fall.
“I think insofar as it tries to effectuate what Congress would have wanted, it’s the court and Congress working hand in hand," Barrett said.
Republicans on the panel, who have frequently worked to overturn the health care law, argued that it is unlikely Barrett would vote to overturn the law. Sen. John Cornyn, R-Texas, facing a tough reelection race, questioned Barrett over whether she would have an open mind.
"I have certainly no agenda. I'm not on a mission, I'm not hostile to the ACA at all," Barrett said, referring to the law by its abbreviation.
Minnesota Democratic Sen. Amy Klobuchar pushed Barrett to go through the Trump administration’s argument in the Supreme Court case. Klobuchar said regardless of the consideration of the severability argument, the administration has pushed to tear the law down.
“I just wanted to make that clear to the chairman and to everyone out there that while there is this doctrine to separate stuff and to try to uphold part of the statue … the position of the Trump administration is to throw the whole thing out,” Klobuchar said.
Senate Judiciary Chairman Lindsey Graham framed Democratic criticism of Barrett as a reaction to the ascent of a conservative woman appointed by Trump.
“This hearing, to me, is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You're going to shatter that. I have never been more proud of the nominee than I am of you,” the South Carolina Republican said.
Durbin continued to press Barrett about her views on presidential power and the ability of Trump to pardon himself or delay November’s election. Barrett said she doesn’t believe anyone is above the law, but declined to engage Durbin on those potential cases.
"I really can't say anything more than I'm not going to answer hypotheticals,” she said.
Durbin also spotlighted a dissent she wrote while sitting on the 7th Circuit that would have allowed a man convicted of a felony to purchase a firearm because he had not been convicted of a violent crime. Durbin argued Barrett’s opinion treated the right to vote as a secondary one.
“I did not intend, and if my words communicated that, it was a miscommunication. I've never denigrated the right to vote,” Barrett said.
Sen. Chris Coons, D-Del., argued that Barrett has not gone as far as other sitting justices have in describing what cases were correctly decided.
He pointed to the Supreme Court’s Griswold v. Connecticut decision that married couples had a right to privacy in the use of contraceptives, and previous justices have said they agree with.
Barrett argued that Griswold would be “very very very very very very unlikely to go anywhere,” unless a state tried to ban contraceptives. But she said she would not weigh in on the case.
The Griswold case was later cited in the Supreme Court’s Roe v. Wade decision holding abortion restrictions unconstitutional, the Lawrence v. Texas decision holding laws against same-sex relations unconstitutional, and other decisions.
In a later exchange with Missouri Republican Sen. Josh Hawley, Barrett again said she would not comment on Griswold, citing ongoing litigation over privacy.
In the second round of questioning, Senate Judiciary members had only 20 minutes to ask questions and elicit answers from Barrett, down from 30 minutes during the first round Tuesday.
When Sen. Charles E. Grassley's turn came up, he asked to not start the clock yet.
"Don't stop — don't start the clock yet. He's not ready. For five bucks, I won't start the clock," joked Graham.
When Grassley began to address Barrett, Graham jumped in.
"Start the clock," he said, to laughter in the room.
As the third day wore on, Barrett, who has been stoic and seemingly indefatigable throughout the hearings, perhaps showed her first sign of tiring.
"I will approach every case with an open wine, er, mind," she told the panel.
Barrett’s public questioning concludes at the end of Wednesday’s hearing. On Thursday, the committee will hear from panels of witnesses from both parties.
Todd Ruger contributed to this report.