It’s time to face a hard truth about the Supreme Court fight that begins this week. There is no secret trick to stopping President Donald Trump and Senate Republicans from jamming through Judge Amy Coney Barrett as a replacement for Justice Ruth Bader Ginsburg.
There is no secret trick to stopping President Donald Trump and Senate Republicans from jamming through Judge Amy Coney Barrett.
There is no last-minute magic parliamentary maneuver that Minority Leader Chuck Schumer, D-N.Y., can use to stop the process. The rules allow him to slow it down a little, but that’s it.
And there’s no argument that’s going to be persuasive enough to shame Senate Republicans to look within themselves and do the right thing.
They know that Trump was hospitalized with the coronavirus and that they are potentially risking the health and safety of the Judiciary Committee during confirmation hearings this week. Chairman Lindsey Graham, R-S.C., said just this weekend that testing every person in the committee room would be unreasonable.
Republicans are also well aware that they’re being hypocrites by violating the precedent they set in 2016 when they refused to consider President Barack Obama’s nominee, Judge Merrick Garland, during an election year.
They just don’t care.
No, the only thing that can stop Barrett’s nomination now is if we make a vote to confirm her so toxic that senators worry about dooming the Republican Party if they go through with it.
That requires strict message discipline focused on the issue that will hurt her chances the most: the fact that she will likely be the deciding vote on the Supreme Court in the case to overturn the Affordable Care Act in the middle of a pandemic that has already killed more than 210,000 people in the United States.
Of all the reasons to oppose her, this is by far the most powerful.
Recent polling commissioned by the health care advocacy group Protect Our Care concluded that the majority of voters chose health care or the coronavirus as one of the two most important issues in their votes for president and Congress in November. Furthermore, the study found that the Affordable Care Act is widely popular. (Full disclosure: I work for Protect Our Care.)
This is reflected in other publicly available polls, which consistently show that health care and the coronavirus top the lists of voters’ most important issues.
These numbers clearly show that the best way to make any senator reconsider carrying Barrett’s banner is to focus the court fight on how she would endanger families by destroying a very popular health care program at a time when most Americans are very worried about a killer virus.
It’s not a hard argument to make. On Nov. 10, the Supreme Court will hear oral arguments in the case to overturn the Affordable Care Act. With Ginsburg gone, there is growing consensus that the vote would stand at 4-4, with the three remaining liberal justices being joined by Chief Justice John Roberts, who has already voted to preserve the law.
Given Barrett’s record criticizing the 2012 court decision upholding the law, there can be little doubt about how she would vote. She wrote in 2017 that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
That means any senator who votes for her will be at least partly responsible for more than 20 million people’s losing their health insurance. And they’ll be responsible for insurance companies’ once again being allowed to discriminate against people with pre-existing conditions.
The coronavirus could be considered one of those pre-existing conditions — especially since so many survivors continue to suffer debilitating symptoms months after having become infected. Let’s not forget that more than 7 million people have contracted the coronavirus in the United States, which would create a major wave of people who may be barred from insurance if protections are stripped away.
If there’s anything that we learned from the last presidential campaign, it’s that it’s easier to define your opponent if you have one message instead of two dozen.
Of course, just because an argument is accurate doesn’t mean it will prevail. And there will be a burning desire to point out the many other ways Barrett’s nomination is objectionable and could do lasting legal damage. But if there’s anything that we learned from the last presidential campaign, it’s that it’s easier to define your opponent if you have one message instead of two dozen.
Every day in 2016, Trump seemed to do something crazier and more extreme than the last. Instead of being a blessing, it ended up luring us into a game of self-defeating political whack-a-mole, pushing dozens of different messages against Trump that never really had a chance to take hold with the public. On the other side, Republicans were able to prosecute a single message that involved Hillary Clinton’s emails. And we all know which one proved more effective.
We need to apply the lessons from 2016 to this fight and hit Senate Republicans where it hurts — over and over again. That means pushing a single, clear message that anyone who votes to confirm Barrett is really voting to take away millions of Americans’ health care in the middle of a pandemic.
If we make it that simple, we can make it really difficult for Trump and Mitch McConnell to desecrate Justice Ginsburg’s seat and cement a right-wing supermajority on the Supreme Court.