The Senate Democrats’ strategy of framing Judge Amy Coney Barrett as a stealth weapon of President Trump to kill Obamacare in an upcoming case is disingenous, contends former federal prosecutor Andrew McCarthy.
Sen. Chris Coons, D-Del., claims Barrett has publicly criticized the Affordable Care Act, but this is false, McCarthy writes in a column Monday for National Review, calling it an “absurd attack.”
“As a judge, Barrett has not ruled on Obamacare. As a scholar, she has taken the firm position that a judge’s important but modest role is to say what the law is, not to formulate public policy,” he points out.
Coons, McCarthy says, is apparently referring to a book review, “Countering the Majoritarian Difficulty,” that Barrett wrote as a Notre Dame Law School professor.
The article, for a scholarly publication of the University of Minnesota Law School in 2017, was not specifically about Obamacare as a policy.
“It was a matter of statutory interpretation: the collision between textualism and judicial restraint – somewhat ironic, in that textualism is generally thought of as a restraint against improper judicial legislating,” McCarthy writes.
“For Barrett, the pressing question was whether legitimacy calls for a judge always to interpret the law with fidelity to the original public meaning of the text.”
Judicial restraint, he argues, “would not allow a court to rewrite the law in order to save it,” which is what Chief Justice John Roberts chose to do.
In his opening statement Monday at the Barrett confirmation hearing, Sen. Sheldon Whitehouse, D-R.I., used the Democrats’ Obamacare attack line, McCarthy noted in another National Review piece.
But McCarthy contends the Obamacare case brought by Trump’s Justice Department has little or no chance of prevailing. And it makes the president “vulnerable to the false charge that he favors eliminating coverage for pre-existing conditions at a time when COVID-19 and high unemployment have intensified voter concerns about access to health insurance.”
“Naturally, since one of the Democrats’ main campaign themes is that Trump is bent on eliminating Obamacare, they are telling people that getting Judge Barrett on the Court is part of that plan,” McCarthy points out.
But Barrett does not believe it is the federal judiciary’s role to make health-care policy.
“There is scant reason to presume that she would invalidate the ACA,” concludes McCarthy, “and every reason to suspect she’d point out that doing so is up to Congress, which could have repealed it but opted not to.”
