The Sept. 18 death of Supreme Court Justice Ruth Bader Ginsburg kicked off what may soon be known as the most bitterly partisan battle Capitol Hill has seen in decades.
On Tuesday night at the first of three 2020 presidential debates, however, Democratic challenger and former Vice President Joe Biden unknowingly revealed exactly the reason conservatives cannot allow the American left to win out on that front — the utter disregard its members have for proper constitutional law.
Asked by Fox News moderator Chris Wallace to explain his opposition to recently tapped Trump administration Supreme Court nominee Amy Coney Barrett, Biden addressed nothing of substance with regard to the U.S. Court of Appeals for the Seventh Circuit judge’s fitness to serve in the role, instead highlighting concerns her confirmation may impede and roll back progressive policy-making efforts.
“What’s at stake here is the president has made it clear he wants to get rid of the Affordable Care Act. He’s been running on that. He ran on that and he has been governing on that,” Biden said at the first presidential debate Tuesday. “He’s in the Supreme Court right now trying to get rid of the Affordable Care Act, which will strip 20 million people from having insurance.”
“I’m not opposed to the justice. She seems like a very fine person. But she’s written before she went on the bench, which is her right, that she thinks that the Affordable Care Act is not constitutional,” he added.
“And if it’s 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.”
Joe Biden argues for waiting until after the election to fill Supreme Court vacancy, and focuses on Amy Coney Barrett’s opposition to the Affordable Care Act: “The insurance companies are going to love this” https://t.co/XoIMrd5i2b pic.twitter.com/buGqza5uCk
— CBS News (@CBSNews) September 30, 2020
The claim epitomized a variety of previous remarks made by Biden and his Democratic allies, many of whom have already promised to oppose the nomination of Barrett over its proximity to the presidential election or partisan policy disagreements with the judge.
Of course, the figures opposing on policy grounds have almost all managed to misunderstand or misconstrue Barrett’s judicial public positions on previous Supreme Court rulings.
Take, for instance, Barrett’s apparently controversial and allegedly partisan opinion on the Affordable Care Act, which she voiced in a 2017 legal review published by Notre Dame Law School. It had not been a distaste for the legislation itself, but the grounds upon which it was upheld by the Roberts court in “National Federation of Independent Business v. Sebelius” that led the legal scholar to argue the court ruled incorrectly.
“[Chief Justice John] Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett wrote. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress’s commerce power.”
Such a position falls comfortably under the umbrella of Barrett’s self-described reverence for originalism — a judicial philosophy in which the original text of the Constitution and intent of the Founding Fathers is deemed the highest value when assessing the constitutionality of legislation.
Coincidentally, therein lies the problem.
Democrats adherent to current party orthodoxy have no understanding or respect for the original intent of the Founding Fathers, nor do they care to discuss law or judicial decision on legal merit alone.
The modern Democratic policymaker looks at Barrett’s opposition to their favored legislation and sees not judicial principle, but the prospect of yet another opposing partisan and conservative roadblock on the nation’s highest court — a reality exemplified in recent comments from by Sens. Elizabeth Warren of Massachusetts and Kamala Harris of California, as well as Senate Minority Leader Chuck Schumer of New York.
I will not be meeting with Donald Trump’s Supreme Court nominee. We need to treat this nomination like the illegitimate power grab it is. pic.twitter.com/KwmtQ27miP
— Elizabeth Warren (@SenWarren) September 29, 2020
“Because of Justice Ginsburg, people could get the job of their dreams, earn equal pay for their work, marry the person they love, and enjoy the full rights and privileges of citizenship that they deserve — free of discrimination,” Harris tweeted Tuesday.
“Her legacy is at stake.”
Because of Justice Ginsburg, people could get the job of their dreams, earn equal pay for their work, marry the person they love, and enjoy the full rights and privileges of citizenship that they deserve—free of discrimination.
Her legacy is at stake.
— Kamala Harris (@KamalaHarris) September 29, 2020
The statement was quickly followed up by Schumer, who similarly wrote, “If Judge Barrett is confirmed, a far-right majority on the court could turn back the clock on health care, women’s rights, workers’ rights, voting rights, civil rights, LGBTQ+ rights, environmental protections, DACA, and more. Democrats are fighting for the American people.”
If Judge Barrett is confirmed, a far-right majority on the court could turn back the clock on health care, women’s rights, workers’ rights, voting rights, civil rights, LGBTQ+ rights, environmental protections, DACA, and more.
Democrats are fighting for the American people.
— Chuck Schumer (@SenSchumer) September 29, 2020
That Senate Democrats remain unanimous in suggesting the stoppage of this nomination will make or break their policy efforts going forward is incredibly telling, however, revealing just how distorted the left’s view of the Supreme Court really is.
For them, the federal judiciary is nothing more than another avenue by which to move the political football.
Previous efforts to ensure the confirmation of activist judges — like Sonia Sotomayor and Elena Kagan — and recent threats to pack the court only serve to solidify the notion that, when Democrats consider court appointments, judicial philosophy is not on the table so much as implications for policy.
Should Senate Republicans blink and fail to confirm Judge Barrett this fall, such is the future of the federal judiciary: a distorted purpose, a disregard for the law and a deep-seated politicization of the dignified third branch of government.
Truth and Accuracy
We are committed to truth and accuracy in all of our journalism. Read our editorial standards.