“That is a question for the political branches.” These were the words of Amy Coney Barrett far too often during her confirmation hearing today. This was not her fault, she was completely correct to answer questions in this way. It was the ridiculous line of questioning that was out of place.
First, some background.
Roe v Wade
One primary subject, as expected, was Roe v Wade. This has been referred to inaccurately by pro-choice groups as well as Vice Presidential Candidate Kamala Harris as a “constitutional right.” Regardless of your personal stance on the issue, it is not a constitutional right as it is not in either the constitution or bill of rights. It is, however, a landmark decision that many laws have been stricken down by the courts naming Roe v Wade as the precedent to do so. However, it is equally as arguable that the court overstepped its boundaries as the argument for the ruling falls largely under the 14th Amendment and right to privacy.
The 14th Amendment says the state may not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This language has been used as the premise to argue a plethora of topics, from race and gender discrimination, to election disputes, and reproductive rights – specifically Roe v Wade.
Affordable Care Act aka Obamacare
Secondly, the contention of the Affordable Care Act (Obamacare) in the courts has also been repeatedly mischaracterized. While there have been rulings on the law by the Supreme Court, and a new hearing over funding may put it at stake. Basically, the court upheld the mandate as a tax rather than a penalty, putting it under the authority of congress to levy taxes.
Since then, the penalty has been lowered to zero, initially voiding the penalty and individual mandate. The problem, and why it is returning to the Supreme Court, is that this mandate actually provided the funding required for the law. Without the funding, the entire law comes into question.
Politics over Constitution
So, the first thing that needs to be addressed is the fact that a Supreme Court nominee cannot comment on how they would rule in a specific case that is already set to appear before the court. In the event of the Affordable Care Act, this should have prevented Representatives from pressing on how Barrett would rule, but instead it just made them distort their questioning. Assertions of how she feels about stripping millions of Americans of health insurance, long-winded protest speeches that lack questioning altogether, and a focus on political interest over constitutional authority dominated the scene.
For example, Sen. Klobucher (D-Minnesota) asserted that Trump promised on Twitter that the Supreme Court would overturn the ACA. She then asked Barrett if we can take Trump at his word, attempting to subvert rules on discussing upcoming cases.
“I can’t speak to what the president said on Twitter,” Barrett rightly proclaimed.
When pressed on her previous disagreements with Chief Justice Roberts to justify the insurance mandate as a tax, Barrett was accused of having criticized Roberts.
“I don’t attack people, just ideas,” she answered.
Then there were the moments that simply made no sense, such as Sen. Hirono (D-Hawaii)
Someone might have forgot to mention that this was a confirmation for Amy Coney Barrett, Justice Kavanaugh’s was completed, and we were talking to someone new.
We’ve discussed before, and referenced many times, the importance of the Supreme Court. It belongs to the constitution, not to the political agenda of any party.
However, the political makeup of the Senate committee seems to care very little about the fact that they are confirming someone who is meant to hold them accountable, and care far more about confirming someone who will agree with them politically. This is ironic, seeing how when they weren’t asserting their will they were questioning the ability of Barrett to separate her faith from her rulings. A true oxymoron that would be lost if pointed out to them in black and white.
So the Barrett confirmation process will continue, with a strictly partisan vote expected to be completed by Oct 26. As one of the few people concerned with the fate of the constitution, the rhetoric of Barrett thus far has been appealing. However, as we said before, judgement will be reserved until actions have been taken.