When news broke that Justice Ruth Bader Ginsburg passed away on September 18, there were many predictions that an effort to fill the Supreme Court vacancy with an originalist nominee would result in the ugliest confirmation battle in American history.
Those predictions were reasonable and may yet be proven right. But so far they’ve been wrong. And the looming election may be the very reason elected Democratic officials have been reluctant to personally attack Amy Coney Barrett over the last week.
“I’m not opposed to the justice, she seems like a very fine person,” Joe Biden said at the presidential debate in Cleveland on Tuesday night.
Biden stuck to his 2020 talking point that the winner of the 2020 election ought to pick the next justice, glossing over his 2016 claim that there is a “constitutional responsibility” to hold a Senate vote on a Supreme Court nominee, even after the election in a lame-duck session of Congress.
Biden mostly focused on the process argument, but he did raise the possibility that Obamacare and Roe v. Wade could be overturned.
Biden went on to say that Barrett has “written, before she went in the bench, which is her right, that she thinks that the Affordable Care Act is not constitutional.”
As Ramesh Ponnuru wrote yesterday about the current lawsuit attempting to strike down Obamacare: “There is no evidence that Barrett looks positively at this lawsuit. Biden’s statement insinuates that we can take her comments about previous cases against Obamacare to indicate her support for it. She has said that Roberts stretched the meaning of the ACA to uphold it as a tax. She’s right about that. But that view doesn’t imply that the current lawsuit should prevail.”
After raising the issue of Obamacare last night, Biden said: “The other thing that’s on the court, and if [the Affordable Care Act is] struck down, what happens? Women’s rights are fundamentally changed. Once again, a woman could pay more money because she has a pre-existing condition of pregnancy. They’re able to charge women more for the same exact procedure a man gets.”
Biden later said that Roe v. Wade was on the ballot, and Trump responded by saying: “You don’t know her view on Roe v. Wade.” Trump glossed over his 2016 statement that Roe would be overturned and abortion policy set by the states if he appointed a few Supreme Court justices.
In Tuesday night’s heated, chaotic, and ugly debate, the conversation about Amy Coney Barrett was surprisingly civil.