In Amy Coney Barrett’s America, the Supreme Court will take health care away from millions of people during a deadly pandemic. That is inevitable, at least, if you believe what Democrats had to say on the first day of Barrett’s confirmation hearing.
Democrats had plenty of visual props to reinforce this point: Photos of people with pre-existing conditions on easels, which had the effect of making this confirmation hearing look more like a murder trial.
Despite all of this, Barrett wasn’t explicitly cast as the villain, but rather, as a pawn. In fact, while invoking the horrific outcomes that would surely follow her confirmation, Democrats rarely said her name. This was presumably because they don’t really want this to be about Barrett—they don’t want to risk turning a villain into a victim. Instead, they attempted to scaremonger the concept of her on the bench, without taking the time to demonize her as an individual.
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Republicans, meanwhile, spent their time highlighting Barrett’s qualifications and preempting attacks on Barrett’s Catholic faith that, happily (unless you count suggestions that Barrett’s Supreme Court would put married couples in jail for using contraception as an attack) never came. Instead, Democrats largely focused their attention on the allegedly unfair nomination process, as well as imminent threats to the Affordable Care Act.
This was not a complete non-sequitur. The court will hear a case this November, seeking to overturn the ACA, and Barrett has previously questioned Chief Justice John Roberts’ dubious notion that the individual mandate constitutes a tax, instead of a penalty.
But there’s also no reason to believe Barrett would agree with the forthcoming lawsuit. That’s because, as Ramesh Ponnuru writes at Bloomberg, “The lawsuit has to overcome several hurdles. One is the question of the standing to sue: Plaintiffs have to show that they’ve been injured, and if the tax is zero [which it currently is], who is the victim? Another is a technical question known as ‘severability’: Why should the whole law go because of a portion of it that Congress has already effectively repealed?”
Donald Trump, to be sure, is obsessed with overturning Obamacare, at least partly because it is Obama’s signature achievement. But what about the implicit assertion that Barrett’s nomination is fundamentally about the vast right-wing conspiracy’s obsession with wanting to overturn the ACA?
I just don’t see the same passion amongst my fellow conservatives these days. Since conservatives have utterly failed to craft a coherent alternative, and with even Trump conceding the premise that the government must protect anyone with pre-existing conditions, overturning Obamacare now would make Republicans the dog who caught the car. It’s just hard to fathom why they would want that legacy, especially since the most egregious part of the law, the individual mandate, has (for the time being) been rendered moot.
To be honest, I was slightly relieved to see that Democrats had decided to primarily focus on the ACA instead of even more contentious issues like Roe v. Wade (which was invoked, but clearly took a back seat to the ACA). That’s because health care, though a life or death issue, is still less incendiary than abortion.
I was also happy to see that (so far) Democrats have decided not to try and assassinate Barrett’s character, having presumably conceded her confirmation as a fait accompli. Their strategy is ostensibly aimed at helping defeat Trump on Nov. 3, plus maybe a couple more GOP senators, not to destroy Barrett, a Midwestern mom, who is obviously a more sympathetic figure.
For her part, Barrett was compelling, but not too compelling. She came across as likable and serious, but in a way that didn’t invite much attention. In a word, she was boring. But boring is good. The one interesting flourish in her brief statement was the line, “I believe in the power of prayer, and it's been uplifting to hear of so many praying for me.” Maybe this was sincere, or maybe it was an attempt to troll progressives who won’t be able to resist attacking her “unscientific” belief in prayer.
One thing is for sure, the job of a nominee isn’t easy. On Monday, she was forced to sit quietly while senatorial gasbags droned on. On Tuesday and Wednesday, she will be subjected to approximately 20 hours of questioning. This, of course, is all coming just three weeks ahead of a presidential election. From where I sit, we could all use a few prayers right about now.
Day one involved a lot of preemptive scaremongering about Barrett’s alleged plans to overturn the ACA, but largely avoided nasty personal attacks on Barrett’s faith or family. It wasn’t exactly Leave It To Beaver, but that made this opening salvo less heated than I had feared. That’s good. Let them fight about issues, not identity. Being a conservative Catholic, last time I checked, is not covered as a pre-existing condition.
One of the ironies of Trump’s presidency is that he’s such an egregious clown that he often serves as a lightning rod, diverting attention away from other conservative advances, including the confirmation of judges. It would be altogether fitting if Trump’s presidency ends in similar fashion, with Trump crashing to the ground because of his chaotic and insane behavior, while a conservative Supreme Court Justice skates into a lifetime appointment because her enemies would rather train their fire on him. For all the talk of a devil’s bargain with conservatives, the lightning- rod effect was always an underrated benefit. I’m not saying ACB’s confirmation will have made it all worth it. But with time running out on the scoreboard, it sure wouldn’t hurt.
