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The Democratic case against Barrett should be the ACA


Eric Levitz is exactly right about the approach Democrats should take at the Barrett hearings:

This time, things are different. McConnell has two more votes to spare, no one has accused Barrett of a violent crime, and, of course, we now know that indicting Kavanaugh’s character didn’t work (even as the nominee did his best to make the case for Democrats by pitching a tantrum about being the victim of a Clintonian conspiracy). There is no reason to customize the case against her nomination to the tastes of moderate Republican senators. Instead, Democrats’ intended audience must be that idiosyncratic, endangered species of American we call “swing voters.” And that means focusing on policy, not personality.

Specifically, Democrats should put the pending legal challenge to the Affordable Care Act front and center. No major initiative of the Trump era has been more unpopular — or detrimental to the president’s approval rating — than his party’s 2017 attempt to repeal Obamacare. Recent polls have shown that only a third of the public supports ending the law, while a majority favors either expanding or maintaining it. And opposition to repealing the ACA’s Medicaid expansion or protections for those with preexisting conditions is even more overwhelming. What’s more, Democrats have long had more credibility with swing voters on health care, and polls routinely show that voters trust Joe Biden’s handling of the issue more than Donald Trump’s. For these reasons, it’s in the Biden campaign’s interest to increase the electoral salience of health-care policy as much as possible. In 2018, Democratic House candidates hammered the issue incessantly — and succeeded in winning backing a significant number of Obama-to-Trump voters who lean left on health care but right on immigration. This tiny but politically potent segment of the populace could play a decisive role in many Rust Belt battlegrounds.

Republican operatives recognize that their party doesn’t have a winning argument on health policy, which is why they spent the 2018 campaign either deliberately misrepresenting the actual GOP health-care agenda or trying to bury the issue in a manufactured “crisis” of migrant caravans. But the conservative legal movement retained hope of striking down the ACA by judicial fiat, and has therefore spent the past two years litigating a challenge to the law so juridically preposterous that it’s made the National Review blush. In a nutshell, the argument advanced by 20 red states is this: In 2012, the Roberts Court deemed the individual mandate constitutional on the grounds that it was a tax. But once Republicans lowered the penalty for violating the mandate to $0 in 2017, the mandate ceased to generate revenue for the government — and thus, ceased to be a tax, which means that this (functionally nonexistent) mandate is now an unconstitutional violation of Americans’ God-given right to forgo health insurance without incurring a $0 fine. And this means that the Supreme Court is constitutionally obligated to strike down the entirety of a health-care law that a majority of the U.S. public supports, and which Congress could not find the votes to repeal just three years ago.

This is why it’s important to be clear-eyed and ignored galaxy-brained One Magic Trick To Stop Barrett scenarios. Democrats can just ignore Republican senators and hammer Barrett again and again on the Republican legal efforts to kill the ACA and her own argument that “[t]o the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text,its approach is at odds with the statutory textualism to which most originalists subscribe.” Fortunately, this is the tack Biden is taking and everyone should follow his lead.

To state what should also be obvious, the precise mix of secular and religious motives underlie Amy Coney’s Barrett’s views as an utterly conventional product of the Federalist Society Orthodoxy Machine is completely immaterial, so there’s absolutely no reason to bring up her faith at all. Republicans are desperate to avoid discussions of her substantive views, and so their entire message has been preemptive attacks on imaginary anti-Catholic bias in the Democratic Party. They’re so desperate that they’ve tried to manufacture it out of…a single column written by a tradcath whose political identity is structured around despising the Democratic Party:

Not taking the bait on this should be the easiest thing in the world; her religious beliefs are irrelevant and since the only thing that matters is mobilizing opinion about the Court Dems need to be laser-focused on her extremely unpopular substantive views. That’s it.

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