Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
Senate Democrats are losing the battle, but they’re aiming to win the war.
We learned on day one of the confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett that Senate Democrats have accepted reality. Barrett will be confirmed, the Supreme Court will soon consist of six conservative justices and three liberals, and there’s nothing Senate Democrats can do to stop it. That’s the battle — undoubtedly an enormously important one.
This isn’t about principle or consistency or fairness. It’s about cold, hard math. Republicans hold a 12-10 majority on the Judiciary Committee, and a 53-47 margin in the Senate as a whole. Even a Covid-19 outbreak in the Senate itself couldn’t delay the start of the hearings by a single day. That’s how determined Senate Majority Leader Mitch McConnell, Judiciary Committee Chairman Sen. Lindsey Graham, and their Republican colleagues are to get Barrett confirmed.
Part of the Republican urgency is pragmatic. The Supreme Court will hear oral arguments on the Affordable Care Act (ACA) case on November 10. If Republicans can confirm and seat Barrett before then, she will likely participate in the decision, and her vote could be decisive.
President Donald Trump’s administration has taken the position in the Supreme Court that the entire ACA must be invalidated, and they just might get their way. Back in 2012, the ACA barely survived by a 5-4 vote in the Supreme Court. Chief Justice John Roberts unexpectedly provided the decisive vote upholding the ACA, crossing over to join with the Court’s four liberal justices. (In a separate 2015 decision upholding a key aspect of the ACA, Roberts and then-Justice Anthony Kennedy joined the liberal justices for a 6-3 ruling).
Since the 2012 ACA decision, two justices who voted to strike down the law have been replaced: Justice Antonin Scalia, who passed away and was replaced by Neil Gorsuch, and Kennedy, who retired and was replaced by Brett Kavanaugh. Gorsuch and Kavanaugh, both reliable conservatives, seem likely to vote the same as their predecessors, to strike down the ACA (though both showed independent streaks this past term — Gorsuch on a LGBTQ case and both on the Trump tax returns case).
If confirmed, Barrett will take the seat of the late Justice Ruth Bader Ginsburg, who voted to uphold the ACA in 2012. If that vote flips, the ACA could be a goner.
Another part of the Republican strategy is political. Right or wrong, Republicans have calculated that it benefits them to get Barrett confirmed before the November 3 general election. The Republican hope appears to be that Trump’s selection of Barrett will energize their base and rally conservative voters.
But that could backfire. While conservative voters typically are more motivated than liberal voters on the courts and selection of judges, polling indicates that this trend could be reversed this year.
And that’s where it seems that Democrats are trying to focus on the bigger picture and win the war. If they can’t stop Barrett’s confirmation, they can at least make Republicans pay at the ballot box.
Democrats sounded that theme throughout day one of the hearings by focusing on the ACA. Right off the bat, Sen. Patrick Leahy pointedly noted that Americans are “scared that your confirmation would rip from them the very health care protections that millions of Americans have fought to maintain, and which Congress has repeatedly rejected eliminating.” Other Democratic members followed suit. Sen. Mazie Hirono made it personal, explaining that “access to health care saved my life.”
By speaking about the ACA repeatedly not in legal terms but in practical terms — stressing the visceral fear felt by millions of Americans who could lose coverage rather than the statutory nuances — Democrats aimed their message at an audience beyond the Judiciary Committee chamber. They’re using these hearings to appeal directly to the American public.
Senate Democrats understand they can’t prevent Barrett from taking her next job with the Supreme Court. But they’re trying to use the opportunity to convince voters to throw Trump out of the White House.
