One piece of writing getting a close look is a 2017 essay that Barrett penned for a Notre Dame Law School journal in which she argued that Chief Justice John G. Roberts Jr., who wrote the majority opinion when the Supreme Court upheld the constitutionality of the health-care law in 2012, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Sen. Christopher A. Coons (D-Del.), who talked by phone with Barrett on Wednesday, said he asked her about a pair of Supreme Court decisions upholding the ACA, as well as the 2017 essay. Barrett, Coons said, repeatedly declined to speak to the specifics of a case, saying “she wouldn’t get into the details of how she might rule.”
“The ACA is not just on the docket of the Supreme Court,” Coons, a member of the Senate Judiciary Committee, told reporters Wednesday. “It’s on the ballot this fall.”
White House spokesman Judd Deere responded to the Democrats’ line of questioning saying that “asking the nominee to pre-judge or promise a decision on a case — including the decision to take the case at all — violates the bedrock constitutional principle of judicial independence.”
The conversation between Coons and Barrett is part of a traditional Supreme Court confirmation process that has become anything but ordinary, with partisan tensions high over her pre-election nomination and the effects of the coronavirus pandemic altering business at the Capitol.
At least eight Democratic senators have met with Barrett — in person or via phone — while a host of others have refused the courtesy sit-downs, saying they do not want to legitimize a confirmation process they say should not occur.
Sen. Joe Manchin III (D-W.Va.) met with Barrett at the Capitol on Thursday and in a statement released the following day said her writings on the ACA “continue to give me serious concerns” about her confirmation.
An aide to Sen. Dianne Feinstein (D-Calif.), the Judiciary Committee’s ranking Democrat, confirmed that the senator spoke with Barrett on the phone Wednesday, but the aide declined to give further details.
Sen. Sheldon Whitehouse (D-R.I.) also had a phone conversation with Barrett. Spokesman Rich Davidson said Whitehouse walked her through “his concerns about dark-money influence around the Supreme Court, which he called ‘the scheme around the Court.’ ”
Deere said that during the calls, Barrett “emphasized the importance of judicial independence and spoke about her judicial philosophy and family.”
The meetings are also used to preview some of the lines of questioning from senators at the confirmation hearing. For Barrett, many of the questions from Democratic senators at her hearing starting Monday will center on health care and the fate of the ACA.
In her meeting with Coons, Barrett said that she has had no conversation with President Trump about any particular decision or case. She also made no commitment to recuse herself from any election-related disputes that may rise to the Supreme Court — something a slew of Democrats have called for because of the explicit link that Trump has made between potential election challenges and the need to have a full slate of nine justices to hear them.
Trump announced in a White House ceremony on Sept. 26 that he would nominate Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, to replace the Justice Ruth Bader Ginsburg, who died last month. Well over a half-dozen people known to have attended the Rose Garden event have tested positive for the coronavirus, which Coons said was “ironic bordering on the tragic.”
Coons said he also stressed to Barrett that squeezing her confirmation through the Senate before the Nov. 3 election “is divisive and has no precedent.”
“Judge Barrett possesses qualifications that I think are appropriate and relevant for a nominee for the most significant court in our country,” Coons said. “My concern isn’t her qualifications. It’s her judicial philosophy and her views.”