Democrats decided that their focus would be the potential real-world effects of Barrett ascending to the court and creating a bulletproof 6-3 conservative majority. While there are many issues they could have discussed — Roe v. Wade, the Voting Rights Act, workers’ rights — they chose to stick with the Affordable Care Act, which the court could strike down in a case it will hear right after the election.
Unlike Republicans, Democrats had no need to conceal their policy intentions or their hopes and fears about the court. The ACA has never been more popular, and if the GOP lawsuit — supported by nearly every Republican-run state government and the Trump administration — succeeds, the result will be nothing short of a health-care cataclysm, with an estimated 23 million Americans losing health coverage and all of us losing protections for preexisting conditions.
So Democrats adorned the hearing room with posters of individual Americans who could lose their coverage if Barrett does what Republicans ask of her and votes to strike down the ACA. One after another told the heartbreaking stories of their constituents whose futures are at stake.
Republicans knew this was coming, and their strategy is familiar to anyone who watched the confirmation hearing for any Republican nominee in the past few decades. It’s pretty much the only response available to a party that 1) is eager to install judicial activists on the bench who will advance its policy agenda, but 2) knows that agenda is extraordinarily unpopular.
What it requires is a series of lies: lies about how the judiciary works, about what Republicans know and believe, and what they fervently hope that Barrett and all Republican-appointed judges will do once they’re on the bench.
The most overarching lie Republicans told is that they want judges who understand that politics have no role in judging. They lamented the fact that we no longer simply accept that if a judge is qualified, no matter their political beliefs, they should be confirmed (Merrick Garland can testify to how sincere Republicans are about that).
“You and I both know that judges should not be policymakers,” said Sen. John Cornyn (Tex.). “Judges should not be unelected super-legislators, giving their political allies wins they could not secure through the rough-and-tumble of the political process.”
Why, Republicans would be heart-stricken if a court ever gave them a win they could not obtain through the political process!
“Democrats view the court as a super-legislature,” agreed Sen. Ted Cruz (Tex.). “Who in their right mind would want the United States of America ruled by five unelected lawyers in black robes?”
If you don’t recall Cruz raising this objection when the court’s conservative majority eviscerated the Voting Rights Act, for instance, that’s because he didn’t.
Some went even deeper, their voices dripping with fake sincerity. “Politicizing the courts,” said Sen. Ben Sasse (Neb.), “is a violation of our oath to the Constitution.”
Barrett knows exactly the part she is to play in this ridiculous farce. In her opening statement — with text no doubt approved by the White House — Barrett insisted that there is no policy preference that might infect her unsullied thinking on every constitutional question.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People,” it reads. “The public should not expect courts to do so, and courts should not try.”
To make it clear, the case all the Democrats were talking about is one in which Republicans are demanding that the court overrule Congress to give Republicans a win they could not obtain via ordinary politics. And when in previous cases the Supreme Court declined to strike down the ACA, Republicans didn’t breathe a sigh of relief that the court stayed out of such a political question. They filed more lawsuits.
But now they claim that they neither know nor care how Barrett might rule on the ACA, Roe v. Wade or any other case. “I will object anytime anyone tries to attribute to you a policy position,” said Sen. Mike Lee (Utah).
And Sen. Charles E. Grassley (Iowa) said of the assertion that Barrett would strike down the ACA, “That’s outrageous. As a mother of seven, Judge Barrett clearly understands the importance of health care.”
In other words, no one who has family members she loves could possibly be so callous, so villainous, so monstrous as to agree with the position of the entire Republican Party and rule the way Republican states and a Republican administration demands. How could you even suggest such a thing?
Every Republican in that room shares a determination to pack the courts with as many far-right judges as possible, to move American law in a radically more conservative direction. Yet they pretend that they find the very idea of politics coming into play in any judicial decision terribly offensive to their high-minded ideals about the proper role of the judiciary.
Is it any wonder that a party so spectacularly dishonest from top to bottom chose President Trump as its champion?
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