Eric Shawn: Previewing judge Amy Coney Barrett's Senate confirmation hearings
Angelo Genova says abortion and health care will take center stage.
As confirmation hearings begin for Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg, it’s important to remember what’s at stake. Barrett would shift the balance of the court significantly, tilting what is already a 5-4 right-leaning court to a stronger 6-3 conservative majority.
As a Democrat, here’s my view both on this nomination and the fight that will ensue.
Barrett’s nomination is loved by many on the right and hated by many on the left. The reasons for those passions boil down to a few key issues: health care, and of course, the big one, abortion.
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Republicans have been trying to overturn the Affordable Care Act aka “ObamaCare” since the legislation passed. There have been numerous legal challenges to the law or part of it. With over 20 million Americans relying on the ACA for their health coverage, there are literally millions of Americans (Republicans included) who would stand to lose their health insurance if the law were overturned.
That is a major concern among voters, especially those with preexisting conditions who would find it much more difficult to obtain insurance in the private sector. Barrett’s legal writings and public statements indicate she would be hostile to the Affordable Care Act. If she is confirmed, it dramatically increases the chances that the ACA will be struck down.
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It is perhaps Barrett’s position on abortion that is the most applauded or booed by the voting public. And it is on this issue that she will undoubtedly be questioned the most. And rightly so considering her record. Barrett has been quite vocal in her opposition to abortion and her presence on the court would mean it’s possible that Roe v. Wade could be overturned.
Two years ago, a three-judge panel ruled that laws in Indiana requiring funerals for fetal remains after an abortion or miscarriage and bans on abortions because of the sex, race or developmental disability of the fetus were unconstitutional. Barrett was among four judges who wanted the full court to weigh in and suggested the laws might be constitutional.
Regarding Roe v. Wade Barrett stated in a 2013 Texas Law Review article: “If anything, the public response to controversial cases like Roe (v. Wade) reflects public rejection of the proposition that (precedent) can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging. Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”
Barrett’s ability to rule impartially when matters that challenge her faith as a Catholic are certainly to arise.
And two recent revelations have raised more eyebrows. On her pre-confirmation hearing paperwork, she initially failed to disclose two talks she gave in 2013 that were hosted by two anti-abortion student groups and the National Review reported that Barrett signed a letter on a "right to life" ad in 2006 that called for the end of the landmark legal decision.
However, also in 2013, during a lecture at Notre Dame on the 40th anniversary of the Roe ruling, she said: “I think it is very unlikely at this point that the court is going to overturn (Roe v. Wade). ... The fundamental element, that the woman has a right to choose abortion, will probably stand.”
So it’s not certain where she would stand or which way she would rule.
Sen. Chris Coons, D-Del., said Judge Barrett repeatedly declined during a phone call he had with her to share her views of legal issues around abortion rights or the Affordable Care Act, citing the need to maintain impartiality on the bench.
And Barrett’s ability to rule impartially when matters that challenge her faith as a Catholic are certainly to arise as well, especially as a law article that she co-authored concluded that Catholic judges are “morally precluded from enforcing the death penalty.”
So now there’s the fight.
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Supporters and opponents of Barrett’s nomination wasted no time launching a high-pitched battle over her confirmation. Interest groups representing pro- and anti-abortion rights, gun issues, health care and more pledged to fight hard – making the Supreme Court an issue that could be front and center in the closing days of this presidential election. And in key Senate races as well. So Barrett’s nomination (and the line of questioning by both Republicans and Democrats) could certainly help or hurt either presidential candidate.
Considering that nearly eight in 10 Americans believe abortion should be legal to some degree and a majority don’t want the landmark legislation overturned, according to Gallup polling, raising the issue in the Barrett hearings could prompt voters, especially women, to come out and show their support for Joe Biden and the Democratic ticket.
Recent polls show Biden ahead of Donald Trump, with the focus largely been on the president’s handling of the coronavirus pandemic, but if the subject is changed to the Supreme Court and the prospect of a 6-3 conservative majority, that could help energize Republican voters, especially in key swing states.
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In 2018, after the confirmation hearing of Justice Brett Kavanaugh, Democrats won the House but didn’t gain a majority in the Senate. In fact, at least three red state Democrats who voted against Kavanaugh lost their seats, in what’s been called the “Kavanaugh effect.”
The bottom line is, Democrats need to tread lightly. Senate Majority Leader Mitch McConnell, R-Ky., has the support of Republicans to move forward with the confirmation process and confirm Barrett on the Senate floor before Nov. 3, barring any development in her vetting. Democrats don’t want to create a “Barrett effect” and lose their chance of winning a Senate majority in 2020.
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