Sen. Patrick Leahy, D-Vt., continued to press Supreme court nominee Judge Amy Coney Barrett Wednesday on her legal opinion of the Affordable Care Act and whether she would rule to strike it down.
In the third day of Barrett’s confirmation hearing in the Senate Judiciary Committee, Leahy argued that Barrett has already made it clear she thinks the Affordable Care Act — known as Obamacare — is unconstitutional.
“It seems that every time you’ve weighed in on the statute, you come to one conclusion: The Affordable Care Act is unconstitutional,” Leahy stated Wednesday.
“Did you ever write or speak out in defense of the ACA?” Vermont’s senior senator asked Barrett.
Barrett responded that she had commented in the past about the Affordable Care Act as an academic, not as a judge.
“We all understand that, but that’s not my question,” Leahy cut in. “Did you ever write or speak out in defense of the ACA, whether as an academic or as a member of the judiciary? That’s a pretty simple question.”
Barrett responded that no, she had never had “occasion to speak on a policy question,” but it is untrue to say she has already stated she believes the statute violates the Constitution.
The back-and-forth between Leahy and Barrett was an example of the Democratic strategy to show how the judge’s legal views could affect the lives of people across the U.S. It’s estimated that, if Obamacare is struck down, 20 million Americans could lose their health insurance. In addition, Obamacare requires coverage of people with pre-existing conditions, which a government analysis in 2017 affects about 130 million people, roughly half the population under age 65.
On Tuesday, Leahy also questioned Barrett about the Affordable Care Act, saying it is clear that President Trump expects her to side with his view that the health care law should be struck down.
“I’m not suggesting that you’re callous or indifferent to the consequences if the Affordable Care Act is overturned,” Leahy told Barrett Tuesday. “But I do believe the president selected you because he wanted somebody with your philosophy and he had a reason for it.”
On Wednesday, the Vermont senator also asked Barrett if the president has the power to pardon himself of a crime.
“President Trump claims he has an absolute right to pardon himself,” Leahy said. “Would you agree, first, that nobody is above the law — not the president, not you, not me — is that correct?”
“I agree no one is above the law,” Barrett said.
Barrett also said she could not answer the question about a president’s pardon powers because “it had never been litigated.”
“That question has never risen. That question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is,” she said.
Leahy followed a similar line of interrogation during the confirmation hearing for Justice Brett Kavanaugh in 2018. During that hearing, Leahy asked Kavanaugh if the president has the authority to pardon someone in exchange for a promise that the individual wwil refuse to testify against him.
“Senator, I’m not going to answer hypothetical questions of that sort,” Kavanaugh responded at the time.
While Democrats have continued to protest Barrett’s confirmation — arguing the seat left vacant by Justice Ruth Bader Ginsburg should be filled after the November election — Senate Republicans have the numbers to confirm the judge to the nation’s highest court later this month.
The judiciary committee hearing will continue Thursday.
