(CNN) — Democrats and Republicans both sought to get a better understanding about how Supreme Court nominee Amy Coney Barrett may rule on a challenge to the Affordable Care Act that the high court will hear next month, dancing around the key legal issues surrounding the case.
For the second day of Barrett’s questioning in the Senate Judiciary Committee, the health care law was a dominant topic on both sides of the aisle thanks to the looming November case the Supreme Court will hear on a Republican effort to strike down the law — not to mention Election Day less than three weeks away.
The Senate Judiciary Committee is moving briskly through Barrett’s confirmation hearings, which will conclude on Thursday, putting the GOP-led panel on track to vote on her nomination next week. The Senate is planning to vote on her nomination by the end of the month.
Both Judiciary Chairman Lindsey Graham and Sen. Dianne Feinstein, the panel’s top Democrat, asked President Donald Trump’s Supreme Court nominee about the legal doctrine of “severability,” or whether the entire law can stand if one part of it is deemed unconstitutional, during Barrett’s second day of questions before the committee on Wednesday.
It’s a concept that could play a key factor in the case from Republican attorneys general and the Trump administration that seeks to strike down the Affordable Care Act case next month. They argue the entire law, commonly known as Obamacare, should be struck down because the law’s individual coverage mandate is unconstitutional.
Barrett explained to Feinstein, a California Democrat, that severability was like a game of “Jenga.”
“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett asked. “Severability is designed to say well would Congress still want the statute to stand even with the provision gone?”
Graham, during his questioning of Barrett, seemed to suggest he thought that the Affordable Care Act could be saved because of severability, saying the doctrine’s “goal is to preserve the statute if that is possible.”
“From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges,” Graham said, before asking Barrett, “Would it be further true, if you can preserve a statue you try to, if possible?”
“That is true,” Barrett said.
“That’s the law folks,” Graham responded.
The challenge to President Barack Obama’s health care law from Republican state attorneys general and the Trump administration has become a central issue in this year’s election in part due to Barrett’s confirmation. Democrats have focused their arguments during Barrett’s confirmation hearings on the way the law has provided care for individuals.
Graham, who is facing a tough reelection fight this year, raised the severability argument as part of his criticism of the health care law, while noting overtly that “Obamacare is on the ballot.”
But Senate Republicans, who back the lawsuit to kill the law, have backed away from that implication in the lead-up to Election Day. Senate Majority Leader Mitch McConnell, who is also up for reelection, said during his debate Monday that “no one believes” the Supreme Court will strike down the entire law.
Back and forth on abortion
Sen. Amy Klobuchar, a Minnesota Democrat, noted at Wednesday’s hearing that the Trump administration’s legal position is for the court to throw out the entire law.
At the start of Wednesday’s hearing, the third in the four days scheduled, Graham noted the fact that Barrett’s confirmation is on a fast-track. He compared Barrett to Obama’s Supreme Court nominees, Justices Sonia Sotomayor and Elena Kagan, saying Barrett was an historic pick for conservative women as the first female nominated to the high court who is “unashamedly pro-life.”
Just as they did during Tuesday’s lengthy questioning, Democrats sought to pin down Barrett on a number of topics she could hear in the future, including voting rights and even the prospect that Trump could try to pardon himself.
Democrats again tried to pin down Barrett’s views on abortion and the legal issues surrounding Roe v. Wade. Several Democrats asked Barrett whether she agreed with the 1960s Supreme Court case Griswold v. Connecticut, which struck down a Connecticut law that made it a crime to provide contraception to married couples. The ruling that personal decisions between spouses were covered by a constitutional right to privacy was cited in Roe v. Wade.
Sen. Chris Coons, a Delaware Democrat, pressed Barrett on the ruling, but she said she couldn’t discuss it, while arguing it was nevertheless settled law that no legislature would seek to change.
“I think that it’s an academic question that wouldn’t arise but it’s something that I can’t opine on particularly because it does lie at the base of substantive due process doctrine which is something that continues to be litigated in courts today,” Barrett said.
Several Democrats pushed Barrett on whether she agreed with notable dissents from the late Justice Antonin Scalia, whom Barrett clerked for and has called a mentor.
Barrett argued on Tuesday she shared Scalia’s philosophy but would be a different judge, though she declined to engage on whether she agree with Scalia’s writings on several occasions.
Sen. Josh Hawley, a Missouri Republican, came to Barrett’s defense during his questioning of the nominee, accusing Democrats of demeaning her by suggesting she agreed with all of Scalia’s opinions.
“Maybe we can put to rest this attempt to constantly leverage the worst interpretations of Justice Scalia’s philosophy, misrepresentations, and attribute them all to you, as if you are the same person,” Hawley said.
Barrett declines to wade into contentious issues
For the second day, Democrats continued with their questions of Barrett on numerous contentious legal issues, questioning her positions and writings on gun rights, voting rights and whether she would recuse herself on election disputes involving the President that might reach the high court.
Repeatedly, Barrett declined to engage with the senators on key issues, citing a standard named for the confirmation hearing of the justice she would replace, the late Ruth Bader Ginsburg, not to discuss cases that she could be hearing in the future.
Sen. Pat Leahy, a Vermont Democrat, asked Barrett about whether a president has an “absolute right” to pardon himself.
Barrett said she agreed that “no one is above the law,” but she declined to discuss the prospect of a self-pardon.
“As far as I know, that question has never been litigated. That question has never arisen,” Barrett said. “That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question, when I haven’t gone through the judicial process to decide it, it’s not one in which I can offer a view.”
She once again avoided answering a question on whether the President could delay the date of the November election, arguing it was a hypothetical.
“I’ve given that response to every hypothetical that I’ve been asked in the hearings and as I said yesterday, I do that regardless whether it’s easy or hard,” Barrett told Democratic Sen. Dick Durbin of Illinois.
Klobuchar touched on another legal controversy ahead of the election, asking Barrett whether mail-in voting was essential for millions of Americans in the middle of the pandemic.
Barrett did not engage, also saying she did not recall if she had previously voted by mail. “That’s a matter of policy on which I can’t express a view,” Barrett said.
Health care and the election
On questions about health care, Democrats have focused on Barrett’s criticisms of Chief Justice John Roberts’ 2012 ruling to uphold Obamacare, which she made before she was appointed to the federal appeals bench in 2017, arguing they are a sign that she would try to overturn it.
Barrett insisted on Tuesday that was not the case, saying she had no agenda when it came to the health care law.
Leahy pushed Barrett on her writings further on Wednesday, asking whether she had ever spoken out or written in defense of the Affordable Care Act, given her well-documented criticisms.
“No, I’ve never had occasion to speak on a policy question,” Barrett responded.
Democrats also criticized the President and Senate Republicans for rushing through Barrett’s confirmation in the middle of the presidential election and the Covid-19 pandemic.
Republicans have defended Barrett and her qualifications for the high court, accusing Democrats of trying to score political points by attacking her over health care.
Barrett said she had not discussed any potential Supreme Court cases with the President, his advisers or Senate Republicans during the nomination process. “I’ve made no commitment to anyone, not in this Senate, not over at the White House, about how I would decide any case,” she said.
Republicans hit back at Democrats over the calls to respond to Barrett’s confirmation occurring so close to an election by adding seats to the Supreme Court next year, should Joe Biden win the White House and Democrats take control of the Senate.
“We have seen repeatedly Joe Biden and Kamala Harris refuse to answer whether they would pack the court,” said Sen. Ted Cruz, a Texas Republican.
This story has been updated with additional developments Wednesday.