Obamacare posturing foreshadows intensity of Amy Coney Barrett confirmation

Schumer wants Barrett to recuse herself from ACA cases, but Dems opposed asking the same of Kagan.

Updated: October 12, 2020 - 10:45am

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Ahead of the first day of Amy Coney Barrett's Supreme Court confirmation hearings, the Senate's top Democrat is arguing the nominee should recuse herself from any case related to the Affordable Care Act if she is confirmed — although top Democrats rejected a similar argument made by Republicans during Justice Elena Kagan's confirmation process in 2010. 

"Judge Barrett should immediately do the bare minimum and pledge to recuse herself," Schumer said on Sunday, referring to an upcoming Affordable Care Act case, California v. Texas.

The Supreme Court is scheduled to hear oral arguments in the case in early November. According to the Kaiser Family Foundation, the plaintiffs are arguing that "the individual mandate requires them to purchase health insurance that they otherwise would not buy." 

In the past, Barrett has been linked to some criticism of the Affordable Care Act, including a petition that opposed requiring employers to offer health insurance plans that included access to birth control.

In 2010, during former President Obama's first term, Schumer and other Democrats did not agree with Republicans who wanted Obama Supreme Court nominee Elena Kagan to recuse herself from cases related to the Affordable Care Act. Kagan had celebrated the passage of Obamacare in an email while serving as the Obama administration's solicitor general.

"I hear they have the votes, Larry!! Simply amazing," Kagan wrote on the day Obamacare passed the House of Representatives. The email was sent to Laurence Tribe, a Harvard law professor who was working in the Justice Department.

Kagan went on to vote on several cases involving Obamacare, including voting to uphold the law's individual mandate The individual mandate refers to Obamacare's requirement that every American purchase health insurance or face a fine. 

Sen. Chris Coons, a Democratic member of the Senate Judiciary Committee, called the GOP's effort to fill the Supreme Court vacancy "court packing" on Sunday. He argued that Barrett's views are "extreme" and disqualifying.

"It constitutes court-packing," he said. 

The term "court packing" traditionally refers to one party's support for expanding the number of justices on the Supreme Court and filling the seats.

Nebraska Sen. Ben Sasse, a Republican member of the Senate Judiciary Committee, slammed Coons on Sunday for comparing court-packing to filling an open seat on the Supreme Court.

"Claiming that court-packing is filling open vacancies, that obviously isn't what court-packing means," Sasse said.

Democratic presidential nominee Joe Biden and his running mate, California Sen. Kamala Harris, have repeatedly dodged questions about their official position on expanding the number of justices on the Supreme Court.

Sasse criticized Biden for refusing to inform voters about his position on packing the Supreme Court.

"What they're really talking about is the suicide bombing of two branches of government," Sasse said on Fox News. 

Schumer told reporters on Sunday that Barrett should recuse herself from cases involving the presidential election results as well. He also said Senate Democrats "will not supply the quorum" whenever Barrett's nomination is brought to a vote in the committee and the full Senate.

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