Republicans served America a steaming pile of shit today. So Democrats decided to make a shit sandwich.
The pile, of course, is the illegitimate, dangerous, and so-hypocritical-it-is-literally-what-they-swore-not-to-do “confirmation hearing” of Judge Amy Coney Barrett for the Supreme Court. For a dozen reasons, this should not be happening. But the sandwich, Democrats decided, would be to use the entire hearing as a free campaign advertisement, highlighting two of their best-polling issues: COVID and the Affordable Care Act.
Taking a page from the GOP’s own playbook, Democrats disregarded the immediate subject of the hearing to pull on America’s heartstrings, showing big, poster-size photos of adorable kids whose moms and dads would lose their health care if Judge Barrett becomes Justice Barrett.
It was, perhaps, a disingenuous thing to do. Judges don’t decide whether a policy is good; they decide whether it’s constitutional. But given that the entire hearing is disingenuous in the first place, why not? Exploiting judicial hearings for political theater is totally respectable if the hearings are already political theater to begin with—and given what’s really at stake with Barrett’s nomination.
On Nov. 10, the Supreme Court will hear California v. Texas, a case about the constitutionality of the Affordable Care Act. Counting votes, with Justice Barrett replacing the late Justice Ginsburg, the ACA is headed for seriously rough waters if not outright repeal.
In any normal year, it’s unlikely that a Supreme Court confirmation could happen that quickly. But this, of course, is not a normal year.
Republicans know they’re likely to lose big next month, potentially the Senate as well as the White House. They also know that their party has a long-term demographic problem, as well as a short-term Trump one. This may be their last chance in decades to end abortion rights, voting rights, same-sex marriage, DACA, and other terrible things.
So they’re damn well going to take it.
Faced with that reality, what can Democrats do? They’re already threatening to increase the size of Supreme Court from nine to eleven justices. They’re already raising gajillions of dollars on the back of this preposterous process. And boycotting the hearing wouldn’t have changed anyone’s mind.
So, judging by today’s opening statements, they’ve opted to ignore the hearing’s ostensible reason—to evaluate the fitness of a judicial nominee—and make use of the free TV time.
It is perhaps surprising that the Democrats are focused so intently on the ACA, rather than, say, abortion rights (which a Justice Barrett will almost certainly vote to limit or overturn entirely) or the election.
But not when you check the numbers.
Support for requiring insurance companies to cover people with pre-existing conditions is now a political “third rail.” In a recent poll, 72% of respondents (including 62 percent of Republicans) said that the requirements should stay in place even if the ACA itself is repealed. And around 130 million Americans have pre-existing conditions, depending on how that term is defined.
Democrats ran hard on it in 2018, and won big.
In fact, the pre-existing conditions protection is so popular, no one disagrees with it anymore and even those who had fought tooth and nail against such a requirement—such as Donald Trump and every Republican Senator who voted against the ACA—now swear that they’re for it.
“There is unanimity in this chamber for protecting those with pre-existing conditions,” said Sen. Ted Cruz, who has led numerous efforts to repeal the ACA and offer nothing in its place.
Or in Trump’s words, “I will ALWAYS PROTECT PEOPLE WITH PRE-EXISTING CONDITIONS, ALWAYS, ALWAYS,ALWAYS!!!”
This despite the fact that the Trump administration is a party to California v. Texas and has argued that the court should strike down the ACA’s protections for those with preexisting conditions in particular.
Needless to say, Trump has offered nothing to replace the ACA, despite promising a “wonderful plan” for four years now.
No surprise, then, that Democrats were unusually unified in their messaging today—including their presidential candidate.
“Let’s keep our eye on the ball,” Vice President Joe Biden said Monday. “This is about whether or not, in less than one month, Americans are going to lose their health insurance.”
Finally, of course, there’s COVID.
Republican senators hardly mentioned the pandemic at all in the hearing, despite two of them still being in quarantine.
Meanwhile, Sen. Mike Lee, who was diagnosed with COVID-19 on Oct. 1, appeared in person at the hearing and spoke (loudly) without a mask, thus unconscionably exposing everyone in the room – including Judge Barrett (who had COVID in the summer and is thus possibly immune) and her children – to the coronavirus.
So much for “pro-life.”
Perhaps worst of all, Sen. LindsEy Graham has declined to even get a COVID-19 test, despite having been in close proximity to numerous infected individuals. That is in violation of CDC guidelines and the Christian morality which Judge Barrett is said to embody.
Of course, if Graham were to test positive, that might imperil the hearings, God forbid. Graham, too, did not wear a mask for most of the hearing.
Democrats, however, mentioned the pandemic repeatedly.
“This president can’t even keep the White House safe,” Sen. Sheldon Whitehouse said, addressing Barrett directly about her confirmation celebration being a “superspreader event.”
“The Senate is wearing blinders to the grim realities facing Americans,” said the 80-year-old Sen. Patrick Leahy, speaking remotely.
Also speaking remotely, Senator and vice presidential candidate Kamala Harris said that the hearing “brought together 50 people in a closed-door room for hours, while the nation is facing a deadline airborne virus.” Pointedly directing her remarks to Graham, she added that “the committee ignored recommendations to keep everyone safe, not even testing all members” for COVID-19.
In short, she said, “this hearing should have been postponed. The decision to hold it now is reckless, and places facility workers, janitorial staff, and capitol police at risk.”
Most vocal, perhaps unsurprisingly, was Senator Cory Booker.
“I am really glad that my colleagues in the room who contracted COVID-19 at the Rose Garden superspreader event had access to the health care that you and your families needed,” said Booker. “The problem is that the people who come here today to wipe down the desks and take out the garbage… don’t have direct lines to the nation’s top health experts. They can’t show up to work sick. And they might not have space to distance themselves at home to protect their families.”
That is the inescapable reality of this sham hearing, that it shouldn’t be happening at all. Yes, Democrats were grandstanding. Yes, they were deliberately confusing the roles of legislators and judges. But is it integrity to always take the high road, when one’s opponent continues to punch below the belt—or foolishness?
Indeed, as Booker concluded, “This is a charade. There’s nothing about this that’s normal… My colleagues have failed to take at this hearing the most basic safety protections to protect those around them. None of this is normal.”