The New York Times - USA (2020-10-15)

(Antfer) #1

A18 Y THE NEW YORK TIMES NATIONALTHURSDAY, OCTOBER 15, 2020


Judge Amy Coney Barrett, Pres-
ident Trump’s Supreme Court nom-
inee, pushed back on Wednesday
against Democrats’ charge that
she would be a certain vote to over-
turn the Affordable Care Act, sug-
gesting that she had no “animus to
or agenda for” the law.
On the final day of questioning at
her confirmation hearings, Judge
Barrett stopped short of directly in-
dicating how she might rule when
the court hears a challenge to the
health care law next month. But
she strongly suggested that she
might be inclined to leave portions
of it intact, despite Mr. Trump’s de-
sire for the court to strike it down.
The pushback stood out as a rare
window of potential insight into
Judge Barrett’s thinking in hear-
ings that otherwise consisted
mostly of evasions and nonre-
sponses to Democrats seeking to
portray her as a conservative ex-
tremist bent on catering to Mr.
Trump’s legal whims.
It came as Republicans and
Democrats began making what
amounted to their closing argu-
ments in the highly politicized fight
over elevating Judge Barrett, 48.
Members of both parties conceded
that her confirmation, and the es-
tablishment of a 6-to-3 conserva-
tive majority on the Supreme
Court, was now all but inevitable.
After days of downplaying Judge
Barrett’s lifestyle and legal views
as irrelevant, Republicans openly
lauded the ascension of the type of
unquestioningly conservative fig-


ure they have dreamed of since the
death of Justice Antonin Scalia in



  1. It promised a lasting legacy
    for Mr. Trump and held out the po-
    tential for a badly needed boost to
    their political campaigns and
    chances of holding the Senate.
    “This is the first time in Ameri-
    can history that we’ve nominated a
    woman who is unashamedly pro-
    life and embraces her faith without
    apology, and she is going to the
    court,” said Senator Lindsey Gra-
    ham, Republican of South Carolina
    and the committee’s chairman. “A
    seat at the table is waiting on you,
    and it will be a great signal to all
    young women who want to share
    your view of the world that there is
    a seat at the table for them.”
    Democrats took a far more sinis-
    ter view. They rejected Judge Bar-
    rett’s comments on the Affordable
    Care Act as misleading, but indi-
    cated they were beside the point
    anyway. By replacing Justice Ruth
    Bader Ginsburg, the leader of the
    court’s liberal wing, with a textual-
    ist and originalist in the vein of Jus-
    tice Scalia, the court’s direction
    would be clear and swift on health
    care access, abortion rights, gay
    marriage and questions of corpo-
    rate power.
    “My core concern here, your
    honor, is that your confirmation
    may launch a new chapter of con-
    servative judicial activism unlike
    anything we’ve seen in decades,”
    said Senator Chris Coons, Demo-
    crat of Delaware. “We’ve mostly
    been talking about the Affordable
    Care Act and privacy-related
    cases, but if that’s true, it could
    touch virtually every aspect of
    modern American life.”
    Republicans planned to move
    quickly on Thursday to begin ad-
    vancing her nomination, a process
    expected to culminate as soon as
    Oct. 26 with a vote to confirm her
    just about a week before Election
    Day — and two weeks before the
    court hears the case on Affordable
    Care Act.
    Democrats struggled again on
    Wednesday to move Judge Barrett,
    an appeals court judge and Notre
    Dame law professor, off carefully
    stated generalities. She batted
    away questions about Mr. Trump’s
    ability to pardon himself, about vot-
    ing by mail and about her views of
    politically charged Supreme Court
    precedent in cases involving abor-
    tion, gay marriage and voting
    rights.
    She would not share her views
    about climate change, calling it “a
    very contentious matter of public
    debate” — a position starkly at
    odds with the established scientific
    consensus — nor say whether she
    thought it was wrong to separate
    immigrant children from their par-
    ents at the border to deter unau-
    thorized entries.
    Each time, she cited a policy
    adopted by previous Supreme
    Court nominees not to comment in
    their confirmation hearings in any
    way that would tip their hand on fu-
    ture cases that might come before
    the court.
    “Judges do not have campaign
    platforms,” she said. “As I’ve said
    number of times through the hear-
    ing, judges should stay out of poli-
    tics. Their jurisprudential philoso-


phies are not designed to yield par-
ticular results.”
Democrats were visibly frus-
trated.
“It’s OK for a judge not to close
his or her eyes to reality,” an exas-
perated Senator Patrick J. Leahy,
Democrat of Vermont, said amid a
terse exchange over the impact of
the Supreme Court’s 2013 ruling
gutting the Voting Rights Act.
Senator Amy Klobuchar, Demo-
crat of Minnesota, let out an audi-
ble sigh when Judge Barrett re-
fused to take a position on whether
mail-in voting was “an essential
way to vote for millions of Ameri-
cans right now” amid a deadly pan-
demic.
Judge Barrett called it a “matter
of policy on which I can’t express a
view.”
“To me that just feels like a fun-
damental part of our democracy,”
Ms. Klobuchar shot back, before
moving on.
Senator Richard Blumenthal,
Democrat of Connecticut, pushed
hard to solicit Judge Barrett’s legal
assessment of Obergefell v.
Hodges, the 2015 decision that
granted same-sex couples the right
to marry. Justices Clarence Thom-
as and Samuel A. Alito Jr., who like
Justice Scalia dissented from the
decision, urged the court this
month to reconsider the ruling.
“Your honor,” Mr. Blumenthal
continued, “think of how you would
feel as a gay or lesbian American to
hear that you can’t answer whether
the government can make it a
crime for them to have that rela-
tionship, whether the government
can enable people who are happily
married to continue.”
Judge Barrett was not pleased.
“You’re implying that I’m poised
to say that I want to cast a vote to
overrule Obergefell, and I assure
you I don’t have any agenda,” she
said. “I’m not even expressing a
view in disagreement with Oberge-
fell. You’re pushing me to try to vio-
late the judicial canons of ethics.”
She made similar arguments
around the Affordable Care Act,
but in friendly exchanges with Re-
publicans that appeared intended
to allay voters’ fears about the fate
of the law, she was a bit more forth-
coming.
The case coming before the court
next month has to do with a single
provision of the sprawling law that
requires individuals to purchase in-
surance. Republicans who brought
the suit have argued that because
Congress zeroed out a penalty for
violating the mandate, it is now un-
constitutional and so is the whole
law.
But Judge Barrett implied on
Wednesday that she might be in-
clined to preserve the broader law
because of the legal doctrine of sev-
erability, which generally allows
the court to strike down a single
provision of a law and retain the
balance of it.
“The presumption,” Judge Bar-
rett said, “is always in favor of sev-
erability.”
Prodded by Mr. Graham, she
also agreed that the court’s prefer-
ence would always be to preserve a
statute enacted by Congress and
signed by the president.
Democrats remained unim-
pressed. They spent the day citing
academic articles and legal com-
mentary by Judge Barrett, includ-
ing a 2017 article in which she criti-
cized Chief Justice John G. Roberts
Jr. for his 2012 opinion upholding
the mandate and the health law.
And they once again pointed to re-
peated statements by Mr. Trump,
who has explicitly said he would
choose a nominee, in part, to take
down the law.
“There is a political agenda here,
and whether you are privy to it —
part of it — notwithstanding, it has
to do with the Affordable Care Act,”
said Senator Richard J. Durbin,
Democrat of Illinois. “Unfortu-
nately, that is the orange cloud over
your nomination.”
Republicans repeatedly came to
her defense.
When Democrats, in the face of
Judge Barrett’s evasive answers,
began drawing parallels to Justice
Scalia, her mentor, Senator Josh
Hawley of Missouri accused them
of trying to “Bork” her by tying her
to “the worst readings and most
draconian misinterpretations” of
Justice Scalia’s views. The refer-
ence was to Robert H. Bork, whose
1987 nomination to the Supreme
Court was brought down by Senate
Democrats.
“I was under the impression that
you were a different person than
Justice Scalia and that you have, in
your own words, ‘your own mind,’ ”
he said ironically. “Is that fair to
say?”
“That is fair to say,” Judge Bar-
rett replied.
For all the partisan wrangling,
there were human moments as
well.
As the hearing wound toward a
conclusion, Senator Joni Ernst, Re-
publican of Iowa, asked Judge Bar-
rett if she had advice for young
women.
“One thing I have often told my
own daughters is that you should
not let life just happen to you or
sweep you along,” Judge Barrett
said. “Make decisions. Be confi-
dent. Know what you want,” she
said. “And go get it.”

The 45th PresidentThe Supreme Court


Barrett Hints at Potential Stance on a Health Law Case


demic has hit home.
Just minutes after the start of
the second and final day of ques-
tions for Judge Barrett at her
confirmation hearings, Senator
Lindsey Graham, Republican of
South Carolina, invited her to de-
scribe the severability doctrine.
She knew why he was asking,
and she was ready to play ball.
“What it means,” she said, “is if
you have a statute — and the Af-
fordable Care Act is obviously a
very long statute — if there is one
provision within the statute that
is unconstitutional, the question
is whether that one section can
simply be rendered null and ex-
cised from the statute.”
That is the key issue in next
month’s case. After Congress ze-
roed out the penalty originally
imposed by the legislation for not
obtaining insurance under the
so-called individual mandate, Re-
publican state officials argued
that the mandate was now un-
constitutional. They added, more
significantly, that this meant the
entire law must fall.

WASHINGTON — Republi-
cans have been working for a
decade to destroy the Affordable
Care Act. Judge Amy Coney Bar-
rett has criticized Supreme Court
decisions that failed to do so. And
it looks like she will be on the
court next month for arguments
in a third major challenge to the
law pressed by Republican state
officials and the Trump adminis-
tration.
All of this, Democrats have
said, puts the law in grave peril.
But some Senate Republicans
had a surprising response on
Wednesday: They pointed to a
doctrine of statutory interpreta-
tion called severability. Because
of it, they suggested, their allies’
own case against the health care
law was a toothless exercise that
was likely to fail.
It was an admission that the fo-
cus by Democrats on attacking
Republicans — and Judge Bar-
rett — for threatening the future
of Affordable Care Act in the
midst of the coronavirus pan-

In legal terms, they argued
that the mandate was not sever-
able from the balance of the law.
In the Supreme Court, the Trump
administration filed a brief say-
ing precisely that: “The individ-
ual mandate is not severable
from the rest of the act.”
Severability is the legal equiv-
alent of a game of Jenga: If you
pull out one plank, will the entire
tower topple?
Judge Barrett did not say how
she would vote in the pending
case, but her summary sug-
gested that she was skeptical of
the maximalist arguments made
by the administration.
“The presumption is always in
favor of severability,” she said.
Mr. Graham summarized what
he had heard. “The main thing is

the doctrine of severability has a
presumption to save the statute if
possible,” he said. That was, he
said, a conservative approach
that allows Congress rather than
the courts make the key policy
decisions.
“I want every conservative in
the nation to listen to what she
just said,” Mr. Graham said.
“That is the law, folks.”
The senator, if not the nomi-
nee, seemed to say that the
health care law was not in real
danger next month and that
Judge Barrett’s presence would
not alter the calculus.
Legal experts were reluctant
to draw broad conclusions from
the exchange.
“Reading the tea leaves here is
hard,” said Nicholas Bagley, a
law professor at the University of
Michigan who filed a supporting
brief in the new Supreme Court
case along with scholars across
the ideological spectrum. The
brief argued that “the question
here is not debatable: The man-
date is severable from the rest of
the A.C.A.”
“To my eyes,” Professor
Bagley said, “the most telling
part of Barrett’s response is her
aside that ‘the Affordable Care
Act is obviously a very long stat-
ute.’ Her response suggests —
very weakly — that she may see
something anomalous about un-
raveling all of Congress’s handi-
work just because a toothless
mandate is constitutionally de-
fective.”
Judge Barrett also made more
general statements about the
health care law on Wednesday. “I
am not hostile to the A.C.A. at
all,” she said. But that was in
some tension with what she had
said over the years about earlier
Supreme Court challenges be-
fore she became a judge.
In a 2017 law review article,
Judge Barrett was critical of
Chief Justice John G. Roberts Jr.’s
2012 opinion sustaining the man-
date. “Chief Justice Roberts
pushed the Affordable Care Act
beyond its plausible meaning to
save the statute,” she wrote.
In an interview after the Su-
preme Court rejected a second
challenge to the law in 2015, this
one concerning tax subsidies to
help poor and middle-class peo-
ple buy health insurance, she

Judge Amy Coney Barrett’s comments on Wednesday about the A.C.A. were consistent with recent Supreme Court opinions.

‘Severability’ Could Save Health Care Law


By ADAM LIPTAK

ERIN SCHAFF/THE NEW YORK TIMES

A legal equivalent of


Jenga: Does losing a


plank topple a tower?


‘I am not hostile to the A.C.A. at all.’
JUDGE AMY CONEY BARRETT during her confirmation hearing on Wednesday

By NICHOLAS FANDOS

A muted assurance


under Republican


questioning.


Luke Broadwater and Adam Lip-
tak contributed reporting.

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