Amy Coney Barrett won confirmation to the Supreme Court before she was even nominated. In the immediate wake of Ruth Bader Ginsburg’s death, Senate Republican after Senate Republican vowed to support Donald Trump’s handpicked replacement, no matter whom that happened to be. Had the president picked his old friend Gary Busey, it is possible Mitch McConnell’s caucus would not have reneged on this pledge. Now that he has selected the party’s 2018 runner-up — an impeccably pro-life woman with an immaculate résumé — a six to three conservative court is a foregone conclusion.
This reality has implications for how Democrats should message Barrett’s confirmation. In 2018, McConnell had a mere two-vote majority, which included the (relatively) moderate pro-choice members Susan Collins and Lisa Murkowski. In this context, it was conceivable that Brett Kavanaugh’s nomination could actually fall through — and, given the close proximity of the midterm elections, and theoretical possibility of Democrats retaking the Senate — that Chuck Schumer could prevent that seat from being filled until 2021.
Since the goal was to try to bring about this long-shot hypothetical — rather than to leverage the confirmation hearings for electoral advantage — Democrats had reason to focus their case against Kavanaugh on “character” grounds, even before Christine Blasey Ford’s allegation became public. Kavanaugh’s views on consumer rights, workplace safety, voting rights, and the government’s capacity to regulate private industry might have been unpopular with the general public. But they were inoffensive to the (business-friendly) Collins and Murkowski. As for choice, if those two senators wished to put Roe’s survival above partisan loyalty, they wouldn’t be Republicans to begin with. Thus, it was plausible that Democrats’ goal was to indict Brett Kavanaugh as an individual, rather than the conservative legal movement as a project.
This time, things are different. McConnell has two more votes to spare, no one has accused Barrett of a violent crime, and, of course, we now know that indicting Kavanaugh’s character didn’t work (even as the nominee did his best to make the case for Democrats by pitching a tantrum about being the victim of a Clintonian conspiracy). There is no reason to customize the case against her nomination to the tastes of moderate Republican senators. Instead, Democrats’ intended audience must be that idiosyncratic, endangered species of American we call “swing voters.” And that means focusing on policy, not personality.
Specifically, Democrats should put the pending legal challenge to the Affordable Care Act front and center. No major initiative of the Trump era has been more unpopular — or detrimental to the president’s approval rating — than his party’s 2017 attempt to repeal Obamacare. Recent polls have shown that only a third of the public supports ending the law, while a majority favors either expanding or maintaining it. And opposition to repealing the ACA’s Medicaid expansion or protections for those with preexisting conditions is even more overwhelming. What’s more, Democrats have long had more credibility with swing voters on health care, and polls routinely show that voters trust Joe Biden’s handling of the issue more than Donald Trump’s. For these reasons, it’s in the Biden campaign’s interest to increase the electoral salience of health-care policy as much as possible. In 2018, Democratic House candidates hammered the issue incessantly — and succeeded in winning back a significant number of Obama-to-Trump voters who lean left on health care but right on immigration. This tiny but politically potent segment of the populace could play a decisive role in many Rust Belt battlegrounds.
Republican operatives recognize that their party doesn’t have a winning argument on health policy, which is why they spent the 2018 campaign either deliberately misrepresenting the actual GOP health-care agenda or trying to bury the issue in a manufactured “crisis” of migrant caravans. But the conservative legal movement retained hope of striking down the ACA by judicial fiat, and has therefore spent the past two years litigating a challenge to the law so juridically preposterous that it’s made the National Review blush. In a nutshell, the argument advanced by 20 red states is this: In 2012, the Roberts Court deemed the individual mandate constitutional on the grounds that it was a tax. But once Republicans lowered the penalty for violating the mandate to $0 in 2017, the mandate ceased to generate revenue for the government — and thus, ceased to be a tax, which means that this (functionally nonexistent) mandate is now an unconstitutional violation of Americans’ God-given right to forgo health insurance without incurring a $0 fine. And this means that the Supreme Court is constitutionally obligated to strike down the entirety of a health-care law that a majority of the U.S. public supports, and which Congress could not find the votes to repeal just three years ago.
Thanks to conservative judicial activism, this case has managed to wind its way up to the Supreme Court, which will entertain the argument for throwing millions of people off of Medicaid and discontinuing regulatory protections for Americans with preexisting conditions, so as to free Americans from the tyranny of a $0 mandate, one week after November’s election.
With a pandemic, economic crisis, and presidentially directed conspiracy to disenfranchise mail-in voters dominating headlines, turning the mundane question of health-care policy into a voting issue has been an uphill battle for the Biden campaign. Barrett’s nomination gifts Democrats an opportunity to raise awareness of the fact that — for millions of Americans — access to basic medical care in the middle of a pandemic may be on the ballot this November.
In 2012, four of the court’s five conservative justices voted to effectively veto a landmark health-care reform law that had been enacted by Congress after decades of advocacy and failed bills. Had there been one more Republican justice — who was exactly as radical on economic issues as the putative “moderate” Anthony Kennedy — the ACA would no longer exist. And there is every reason to believe that Barrett is such a Republican justice. In a 2017 book review, Barrett wrote that John Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Of course, Democrats must also give due emphasis to Barrett’s jurisprudence on abortion rights. Although the Trump campaign has convinced itself that a fight over Roe v. Wade will redound to their benefit — by guiding Trump-to-Biden Catholic voters back home — the truth is that opposition to legal abortion is a minority position, however ambivalent the public is on the finer details of the reproductive-freedom debate. Further, a key segment of Trump’s 2016 coalition was secular white non-college-educated voters in the North, who had previously found the GOP’s Bible-thumping alienating, and assumed that a libertine like Trump wouldn’t actually implement the Christian right’s agenda. (Democratic senator Tammy Baldwin — a woman who knows a thing or two about winning swing voters in Wisconsin — has already made the stakes of Trump’s appointment for both health-care and abortion policy the centerpiece of her messaging on the nomination, saying this week, “The courts are the lynchpin in the Republicans’ anti-health-care and anti-choice agenda.”)
This said, Democrats may be well-advised to make the ACA their number-one issue in the confirmation fight. The conservative legal challenges to Obamacare don’t just constitute an attempt to strip millions of potentially life-saving insurance subsidies, or change health-care policy in a toxically unpopular manner; it also represents an assault on democracy itself. The American people’s democratically elected representatives entertained the question of whether this law should exist twice, first in 2009 and then in 2017. The verdict is clear. The unpopularity of the conservative alternative is unmistakable. Nevertheless, the right has refused to take the electorate’s “no” for an answer, and is now seeking to use its influence over the judiciary to override the will of the people. In this way, the Obamacare case conveniently weds the threat that Trump poses to the material interests of working people with the threat he poses to democracy itself.
Democrats may have no real chance of blocking Barrett’s confirmation. But the Senate’s hearings will provide the party an opportunity to clarify the stakes of the impending vote that they can still win.