Judge Amy Coney Barrett didn’t invent the art of judicial nominees giving evasive answers at Senate confirmation hearings. That has been par for the course since Supreme Court nominee Robert Bork’s ill-fated hearings, in 1987.
But Barrett’s refusal to clearly answer Senate Judiciary Committee members’ questions about her views on crucial issues that affect Americans’ lives — including health care, reproductive rights, and voting rights — makes it clear that too much is at stake to rely on these performative guessing games.
Barrett is right that “policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people.” Indeed, Congress can and must act to protect essential rights and services rather than leaving them vulnerable to the ideological shifts of the unelected members of the nation’s highest court.
There is no clearer example than the Affordable Care Act, which Republicans — unable to repeal or replace the law legislatively — have attacked with legal challenges in the courts for nearly a decade.
Barrett predictably declined to give any opinion about the third challenge seeking to invalidate the ACA to reach the Supreme Court — despite having previously criticized Chief Justice John Roberts’s decision upholding much of the ACA. Barrett would play a part in deciding on the latest challenge to the health care law should she be confirmed before arguments are heard in the case on Nov. 10.
“It’s a case that’s on the court’s docket, and the canons of judicial conduct would prohibit me from expressing a view,” Barrett told Senator Dianne Feinstein on Tuesday.
But Congress has a clear opportunity to protect the health care law. It can nix the current Supreme Court challenge by passing an amendment to the ACA that clearly states that future challenges to its individual mandate penalty, even if successful, would not invalidate the entire law. Lawmakers can go further to strengthen the act, including its protections for preexisting conditions, which Republicans continually attack despite their election-season claims of support. These actions can and ought to be separated from starting an acrimonious legislative and political debate over the merits of other health care reforms, such as Medicare for All, so as to make sure Americans have access to the care they need now — particularly with no end in sight for the coronavirus pandemic.
Lawmakers also have a host of ways to protect reproductive health care and abortion access rather than leaving it in the hands of nine justices. Congress could codify Roe v. Wade’s protection of the right to abortion access in federal law. It could also limit states’ ability to pass restrictive Targeted Regulation on Abortion Providers (TRAP) laws, which curtail accessibility to abortion care and have served as the basis of legal challenges designed to give the Supreme Court opportunities to overturn Roe.
The need is clear. Though Barrett, as expected, declined to say if she’d vote to overturn Roe, she said it does not enjoy the status of a “superprecedent” that cannot be overturned. Barrett’s past condemnation of Roe, and her comment at her hearing that abortion rights is an issue that “continues to be pressed and litigated,” suggests that she doesn’t see Roe as the law of the land. But survey after survey shows that most Americans do, and lawmakers should act according to their wishes.
Barrett’s views of the right to vote, which she described in a dissent as a “civic right” that enjoyed less protection than individual rights like gun ownership, also speaks to the need for Congress to restore the Voting Rights Act, which was gutted by a 2013 Supreme Court decision. Lawmakers can reinstate the enforcement mechanism that required voting districts with a demonstrated record of past voter suppression to seek pre-approval from the Department of Justice before enacting new restrictive laws. Congress could also boost voting access with measures like automatic voting registration and early voting in federal elections, and boost election protection and polling security measures to restore Americans’ faith in the integrity of our election systems.
Moreover, President Trump’s statement that he wanted Barrett’s swift confirmation to ensure any election challenges would be decided in his favor, coupled with Barrett’s refusal to commit to recuse herself from any such case as a result, make clear that Congress must expand the federal law governing judicial codes— which includes ethical rules that require most federal judges recuse themselves from cases with such conflicts of interests — to apply to Supreme Court justices too.
If lawmakers use these hearings as a roadmap for action, then they can be more than a futile exercise in political theater. Barrett’s confirmation is all but certain. But just as Justice Ruth Bader Ginsburg used her dissents as demands for Congress to act, the rush by Senate Republicans to fill her seat should serve as the same clarion call.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.