Good judges see questions of law. ACB’s Democratic critics see only policy outcomes.

Sometimes Democratic senators tell on themselves. In today’s Amy Coney Barrett nomination hearing, many Democrats made it clear that they see the role of judges as passing or killing policy based on whether they like or dislike the policy.

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That’s not what judges should do, and nobody has presented an ounce of evidence Barrett has or would. But Democrats, by basing their entire argument against Barrett on the Affordable Care Act, basically admitted that their vision of a judge is as a superlegislator.

Democratic senator after Democratic senator appeared with a picture of a constituent and a story of how that constituent benefited from Obamacare. This is the core of their planned partisan attack against Barrett.

The assertion: Barrett would strike down the Affordable Care Act if confirmed to the Supreme Court. This is very unlikely, as the ACA case on the docket is unlikely to overturn Obamacare. See my colleague Phil Klein’s explanation.

Where do they get this idea? Democratic presidential nominee Joe Biden falsely states, “This nominee has said she wants to get rid of the Affordable Care Act.” That’s simply not true. Biden either made that up or misspoke badly and didn’t correct himself. Democrats might just view this as a useful message.

What do the Senate Judiciary Committee Democrats rely on for evidence? They point to a law review article in which Barrett expressed a mainstream opinion that does not bear on the current case.

Barrett criticized Chief Justice John Roberts in his case upholding Obamacare’s requirement that everyone buy health insurance. Here’s what Barrett wrote:

“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. 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.”

She’s exactly right. Barrett knows that Roberts couldn’t stomach the Democrats’ argument — that a person not buying health insurance, which can’t be purchased across state lines anyway, counts as interstate commerce. She also says that the law didn’t create a “tax,” as Roberts asserts, but it created a mandate with a penalty.

It takes a creative or activist judge to swallow either (a) the Democrats’ argument that intrastate non-commerce is interstate or (b) Roberts’s argument that the mandate isn’t a mandate, but merely its penalty is a tax.

As Sen. Chuck Grassley said in his opening statement: “Even the Democrats who forced it through Congress insisted it wasn’t a tax. Jeffrey Toobin wrote that Roberts’s tax argument was ‘not a persuasive one.’ President Obama even said, ‘I absolutely reject that notion that it was a tax.’”

Barrett was taking the same side as Obama there.

More importantly, what bearing does this have on the current ACA case? None. It’s just that for Judiciary Democrats, there aren’t questions of Interstate Commerce, taxes, or strict scrutiny — there’s merely pro-Obamacare or anti-Obamacare, pro-legal-abortion or anti-legal-abortion, et cetera. That is, they want judges to affirm the policies they like and strike down the policies they don’t like.

Barrett, by all appearances, doesn’t think that way. Some Democrats can’t fathom that, apparently.

Tags: Opinion, Beltway Confidential

Original Author: Timothy P. Carney

Original Location: Good judges see questions of law. ACB’s Democratic critics see only policy outcomes.