Bench Memos

Law & the Courts

Democrats Confuse Supreme Court Hearing for Policy Debate

Supreme Court nominee Amy Coney Barrett is sworn in during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill, October 12, 2020. (Greg Nash/Pool via Reuters)

Senator Ben Sasse summed up the first day of the Senate Judiciary Committee’s Supreme Court nomination hearings for Judge Amy Coney Barrett when he pointed out that “huge parts of what we’re doing in this hearing would be really confusing to eighth graders. . . . [L]ots of the discussions we’ve had in here today fit better in a Finance Committee hearing than in a Judiciary Committee hearing.”

This was an apt summary of the ten Judiciary Committee Democrats’ opening statements, in which they all seemed to coordinate on a single point—the claim that Judge Barrett would strike down Obamacare and jeopardize healthcare for millions of Americans. As a vice presidential nominee, Senator Kamala Harris likely drew more attention than the others, but as the last committee Democrat to speak, she gave what sounded more like a Democratic broken record than a compelling summation. Like the others in her party, she charged Republicans with “trying to get a justice onto the Court in time to ensure they can strip away the protections of the Affordable Care Act, and if they succeed, it will result in millions of people losing access to healthcare at the worst possible time.”

Democrats baldly made such statements with remarkably little analysis of the nominee’s record. They opted instead to invoke the moving stories of ill constituents and others, often with blown up photos in the background, as arguments for Obamacare—indeed, as if they were the Finance Committee hammering out its details.

Their lack of attention to Barrett’s actual record reveals that they are engaging in a baseless and false attack. The nominee has never said that she would vote to strike down Obamacare. Perhaps Democrats thought that if they spoke enough about the Affordable Care Act, viewers would conclude that Barrett was truly threatening to stand in the way—while not so subtly hinting she would be insensitive to the plight of the people in the photos. But to direct such innuendo toward the mother of seven children, one of whom has special needs, is itself insensitive and absurd.

Democrats can’t attack Judge Barrett’s qualifications, so they are falling back to pure scare tactics—the same thing they do every time they have no good argument. Several Republicans besides Sasse pointed out that they were making what Senator Mike Lee called “essentially policy arguments” that confused the role of courts with that of legislatures.

Even retired Senator Orrin Hatch, who sat on the Judiciary Committee to consider every Supreme Court nomination from Sandra Day O’Connor to Brett Kavanaugh over nearly four decades, tweeted, “Democrats’ focus on healthcare policy instead of a judicial philosophy is a GREAT reminder that Democrats see judges as legislators.”

Judge Barrett’s opening statement, delivered after all of the senators were done, reminded anyone confused by the Democratic detours of what the Court’s role is—and by inference why so much of the hot air was a giant red herring:

Courts have a vital responsibility to the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.

Barrett also manifested both sensitivity and seriousness about her task as a judge:

When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how I would view the decision if one of my children was the party that I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in law? That is the standard that I set for myself in every case, and it is the standard that I will follow so long as I am a judge on any court.

There can be little doubt that this is a careful and fair-minded judge who has demonstrated that she will apply the law to the facts in every case. That’s what the Democrats are afraid of.


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