WASHINGTON — Senate Democrats came to the first day of the Supreme Court hearings Monday with a singular message: Health care coverage and protections for millions of Americans are at risk if Amy Coney Barrett is confirmed.
Like a choir singing in unison, Democrats carried the same tune, in different vocal ranges. Each showed photos of constituents who have battled illness and stand to lose potential lifesaving treatment if the Affordable Care Act were axed, demonstrating an unusual level of harmony for a party not known for message discipline.
The relentless attacks were aimed at exploiting the GOP's Achilles' heel in the election — a pandemic-weary public that continues to cite health care as a top issue and trusts Democrats more on the topic. Without the votes to stop Republicans from confirming Barrett, 48, to a lifetime appointment on the court, Democrats are seeking to maximize their revenge at the ballot box.
Republicans struggled to offer a coherent response, at times saying they were uninterested in eroding the ACA's protections, and at other times arguing that a mother like Barrett wouldn't vote to diminish health care access, even as they insisted she'd keep personal preferences out of her judicial rulings.
But Democrats continuously drove the message.
They noted that President Donald Trump, who nominated Barrett, has said he'd pick judges to rule against the Affordable Care Act. They noted that he’s supporting a lawsuit headed to the Supreme Court one week after Election Day to invalidate the ACA. They noted that Barrett, like Trump, has criticized Chief Justice John Roberts for voting to uphold the ACA in 2012.
And they noted that Trump, after picking Barrett to replace the late Justice Ruth Bader Ginsburg, tweeted that it’d be “a big WIN for the USA” if the ACA is “terminated by the Supreme Court.”
Sen. Kamala Harris, D-Calif., the Democratic vice presidential nominee, accused Senate Republicans of “rushing” to confirm Barrett in order to “get a justice on to the court in time to ensure they can strip away the protections in the Affordable Care Act.”
“If they succeed, it will result in millions of people losing access to health care at the worst possible time in the middle of a pandemic,” she said, speaking via videoconference.
Sen. Chris Coons, D-Del., told the nominee that she was picked to advance the conservative policy goals: “Judge Barrett, I’m not suggesting you made some secret deal with President Trump, but I believe the reason you were chosen is precisely because your judicial philosophy, as repeatedly stated, could lead to the outcomes President Trump has sought.”
The issue appears to be driving Joe Biden's lead in the presidential race. An NBC/Wall Street Journal poll released this month found that voters trust Biden over Trump by 19 points on dealing with health care.
In 2018, health care was the top issue for voters nationally, and those who cited it preferred Democrats by 52 points, according to exit polls. Biden and the Democrats are hoping for a repeat.
'MOTHER OF SEVEN'
Republicans responded with indignation, accusing Democrats of favoring judges who prejudge outcomes and make policy. Some delivered civics lessons on the role of an independent judiciary.
Senate Judiciary Chairman Lindsey Graham, R-S.C., said after the first day of the hearing that Democrats wanted to discuss the ACA as a policy issue, but added: "The judge will decide the merits based on the laws."
"Her job will be to talk about the law and how you would apply the law to any litigation — whether it be guns, health care, abortion, campaign finance, and I think she'll do a good job," Graham, who faces a tough re-election race and is being attacked on health care, told reporters.
Sen. Chuck Grassley, R-Iowa, argued that because Barrett has children, Democrats' arguments about the ACA were invalid.
“The left is also suggesting Judge Barrett's confirmation would be the demise of the ACA and the protection for pre-existing conditions. That's outrageous,” Grassley, a former chairman of the committee, said. “As a mother of seven, Judge Barrett clearly understands the importance of health care.”
Sen. Ted Cruz, R-Texas, sought to defuse the issue by vowing that “every single member of the Senate agrees that pre-existing conditions can and should be protected. Period. The end. There is complete unanimity on this.”
But there is deep disagreement between the parties over policy regarding pre-existing conditions. The ACA, which Cruz and most of his colleagues have fought to repeal, required insurers to accept all customers, barred them from charging higher prices to people with past illnesses, and required plans to cover a minimum set of benefits.
Trump appeared aware of the role the ACA was playing in the hearing.
During the lunch break, he posted a message for his party on Twitter: “Republicans must state loudly and clearly that WE are going to provide much better Healthcare at a much lower cost. Get the word out! Will always protect pre-existing conditions!!!”
Trump and his party have failed to offer a replacement plan that would protect pre-existing conditions while repealing the ACA. The Trump-backed GOP legislation in 2017, which failed, included state waivers that would allow insurers to charge higher prices for sicker people.
For the most part, Republicans and Democrats spent the first of three days of confirmation hearings talking past each other.
Many of the Republicans focused on defending Barrett's Catholic faith against ostensible attacks — even though none of the Democrats mentioned her religion in a calculated decision to deprive her allies of the narrative they wanted.
The first day featured five hours of opening statements from senators on the Judiciary Committee, a panel introducing Barrett, and the nominee herself, who pledged to leave “policy decisions and value judgments” to the political branches.
The questions for Barrett are set to begin Tuesday, and a Senate Democratic aide familiar with party strategy said they will focus heavily on the ACA.
They expect her to avoid revealing how she would rule, as Supreme Court nominees typically do when asked about cases that could come before them.
“We’re all operating on the understanding that she will not provide fruitful answers,” the Senate Democratic aide said. “If she refuses to say she won’t strike down the ACA, that’s useful.”