- Jun 6, 2007
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I haven't watched much of the confirmation hearings for Judge Amy Coney Barrett for what's the point if Ms. Barrett has a pulse at the end of the hearings Senate Republicans will confirm her, what is clear is that President Trump is very partisan about filling Supreme Court seats and Senate Republicans are happy to oblige his efforts! I did catch most of the Tuesday questioning of Judge Barrett by Senator Kamala Harris and what I did find very telling about Judge Barrett is her refusal to indicate that she would consider the real world consequences of striking down the Affordable Care Act before she did so if she were to sit for and rule on the case before the U.S. Supreme Court this November. Senator Kamala did an excellent job of specifying the catastrophic consequences for the American people if the Court strikes down this law, the one hundred plus million people with pre-existing conditions who would lose the ACA's protection that their health insurance company has to cover treatment for their pre-existing health problem(s) if they need ongoing treatment and the twenty plus million Americans that get their health insurance directly as a result of the ACA law whether it be from the federal government subsidized health insurance offered on the state exchanges or from Medicaid expansion and numerous other consequences that would be seen from a domino effect of the law falling. What shocked me about this questioning was Judge Barrett's refusal to act like a mainstream Judge, a mainstream Judge would have said the issue of this ACA Supreme Court case is of course whether the individual mandate in the law absent the penalty provision (that being if one doesn't buy health insurance one has to pay a fine of $695) which was repealed by Congress is a constitutional mandate, in a prior Supreme court case it was found to be constitutional by the Taxing power of Congress which was triggered by the penalty no penalty now so it looks like the only consideration is whether the Commerce Clause justifies the mandate and right wing values are against the Federal government under any circumstances having the power to force an individual to buy a private product, the far-right doesn't believe Commerce Clause gives Congress the authority here, so goodbye mandate. The really super critical issue is whether the voiding of the mandate takes down the whole individual insurance market established by the ACA. A mainstream Judge would have responded to Senator Harris's question by saying something like the Court has to consider the intentions, theory, reasoning and the like of Congress with regard to the individual state exchange market established by the ACA and make a determination whether the voiding of the mandate invalidates or destroys the theory or reasoning of Congress in establishing that part of the law and since in effect we would be considering striking down a Congressional law we would be required to consider the practical implications of such striking and sometimes in deciding to leave a law or portions of a law intact we find that considering the totality of the circumstances, especially real live consequences, that if the Congress' intentions behind the law are so subverted by the portion of the law we took away with our finding of unconstitutionality that the integrity of the intentions no longer hold we will let Congress make that determination which they can do vis-a-vis additional legislation on this issue, there is a deference to Congress the Supreme Court should hold in staying within their constitutional role. Judge Barrett's answer was something like we consider the intentions of Congress on whether to strike down the ACA law and in regards to consequences that only comes up in a stare decisis context. In this Supreme court case what stare decisis means that in regards to the several ACA cases ruled on probably in no more than an eight year period we of course found the ACA law constitutional and we should consider now the consequences of reversing ourselves and how it violates the principles of the doctrine of stare decisis which tries to promote the principle of letting prior court decisions stand because people have a reasonable expectation that they can rely on Court's prior decisions and enabling people to do such reliance makes for a good legal system. Bringing up a stare decisis context consideration in this case is largely worthless the ACA law is only ten years old, stare decisis offers protection for like forty and fifty year Supreme Court rulings. Judge Barrett's comments don't bode well for the ACA being found constitutional because anyone who followed the legislative history of the ACA they would recall that the communal pricing of the individual insurance on the state exchanges was a really contentious issue the insurance industry was bucking this idea big-time the only thing that got them to go along and thereby let the legislation be enacted was a commitment by the White House and Congressional leaders to have an individual mandate in the law, if the Court throws out the mandate they are blowing up one of the key deals Congress made in enacting the law, the natural assessment would be that an originalist jurist would find Congress' intent violated here! In that response to Senator Harris, Judge Barrett revealed herself that she is a right-wing ideologue, specifically an originalist, not a fully good responsible Judge that tries to interpret the law with the frame of reference of doing what is optimally good. Judge Barrett revealed herself here not to be a mainstream type of Judge and make no mistake the rulings of a "far-right narrow view of a Judge" type like this if applied across America's laws would cause so much harm it would bring an abundance of good Americans to tears of sadness seeing the outcome! Judge Barrett is a bad candidate to be a Justice on the U.S. Supreme Court!
