For the second day of Barrett’s questioning in the Senate Judiciary Committee, the health care law was a dominant topic on both sides of the aisle thanks to the looming November case the Supreme Court will hear on a Republican effort to strike down the law.
Both Judiciary Chairman Lindsey Graham and Sen. Dianne Feinstein, the panel’s top Democrat, asked President Donald Trump’s Supreme Court nominee about the legal doctrine of “severability,” or whether the entire law can stand if one part of it is deemed unconstitutional, during Barrett’s second day of questions before the committee on Wednesday.
It’s a concept that could play a key factor in the case from Republican attorneys general and the Trump administration that seeks to strike down the Affordable Care Act case next month. They argue the entire law, commonly known as Obamacare, should be struck down because the law’s individual coverage mandate is unconstitutional.
Barrett explained to Feinstein, a California Democrat, that severability was like a game of “Jenga.”
“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett asked. “Severability is designed to say well would Congress still want the statute to stand even with the provision gone?”
Graham, during his questioning of Barrett, seemed to suggest he thought that the Affordable Care Act could be saved because of severability, saying the doctrine’s “goal is to preserve the statute if that is possible.”
“From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges,” Graham said, before asking Barrett, “Would it be further true, if you can preserve a statue you try to, if possible?”
“That is true,” Barrett said.
“That’s the law folks,” Graham responded.
The challenge to President Barack Obama’s health care law from Republican state attorneys general and the Trump administration has become a central issue in this year’s election in part due to Barrett’s confirmation. Democrats have focused their arguments during Barrett’s confirmation hearings on the way the law has provided care for individuals.
The South Carolina Republican praised Barrett’s record, comparing her to Obama’s nominees Justices Sonia Sotomayor and Elena Kagan, calling Barrett the first woman nominated to the high court who is “unashamedly pro-life.”
Just as they did during Tuesday’s lengthy questioning, Democrats sought to pin down Barrett on a number of topics she could hear in the future, including voting rights and even the prospect that Trump could try to pardon himself.
Sen. Pat Leahy, a Vermont Democrat, asked Barrett about whether a president has an “absolute right” to pardon himself.
Barrett said she agreed that “no one is above the law,” but she declined to discuss the prospect of a self-pardon.
“As far as I know, that question has never been litigated. That question has never arisen,” Barrett said. “That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question, when I haven’t gone through the judicial process to decide it, it’s not one in which I can offer a view.”
On Wednesday, the 22 senators on the Judiciary Committee get a second round of 20 minutes for more questions to the nominee. The committee has scheduled a hearing Thursday to hear from outside witnesses and then is expected to vote on Barrett’s nomination next week, putting her on pace for a Senate floor vote by the end of the month — and ahead of the November 3 election.
Barrett made few missteps during the first round of questions Tuesday, while frequently declining to answer questions about potential cases or past rulings — citing a standard named for the confirmation hearing of the justice she would replace, the late Ruth Bader Ginsburg.
Barrett insisted that was not the case, saying she had no agenda when it came to the health care law. “I am not here on a mission to destroy the Affordable Care Act,” she said. “I’m just here to apply the law and adhere to the rule of law.”
Democrats also criticized the President and Senate Republicans for rushing through Barrett’s confirmation in the middle of the presidential election and the Covid-19 pandemic.
Republicans have defended Barrett and her qualifications for the high court, accusing Democrats of trying to score political points by attacking her over health care.
Barrett said she had not discussed any potential Supreme Court cases with the President, his advisers or Senate Republicans during the nomination process. “I’ve made no commitment to anyone, not in this Senate, not over at the White House, about how I would decide any case,” she said.
Democrats sought to tease out more about her views on a number of issues, raising concerns that a high court with Barrett on the bench would endanger abortion rights, gun control laws, voting rights and same-sex marriage, noting that her mentor, the late Antonin Scalia, was in the minority for the Supreme Court’s 5-4 decision in 2015 legalizing same-sex marriage.
Barrett largely avoided commenting on those topics, saying they were issues that could be heard before the high court so it would be inappropriate for her to discuss them.
This story has been updated with additional developments Wednesday.