WILMINGTON, Del. – Democratic presidential candidate Joe Biden wants voters to see Republicans’ push for a speedy Supreme Court confirmation as an end-run of Congress and the 2010 health care law.
In remarks on Sunday, the former vice president sidestepped any talk of expanding the court to counter conservative gains should he defeat President Donald Trump in November and Democrats regain a Senate majority. Biden called that scenario a distraction from the practical effects that Trump’s nominee, conservative federal judge Amy Coney Barrett, could have if she succeeds the late liberal Justice Ruth Bader Ginsburg.
“They see an opportunity to overturn the Affordable Care Act on their way out the door,” Biden said, speaking near his Delaware home. “The Trump administration is asking the Supreme Court right now, as I speak, to eliminate the entire Affordable Care Act.”
Trump, speaking at the White House later Sunday, did not necessarily dispute Biden's characterization.
“She's gonna be a great justice” who will “rule (based on) the law,” Trump said of Barrett. But, he added quickly that “Obamacare is terrible” and repeated his promise, now more than four years old, to scrap the law and replace it with a Republican plan.
Biden repeated his calls that the Senate delay confirmation proceedings until after the Nov. 3 election, moving ahead then if Trump wins another term or awaiting a nomination from Biden if the Democrat prevails.
Democrats' focus on health care reflects a larger strategy that's emerged in recent days. They tacitly concede Republicans are likely to confirm Barrett, giving conservatives a 6-3 court majority. So, rather than fight a losing battle, as they did with Justice Brett Kavanaugh’s 2018 confirmation, Democrats want to raise the pressure on Republicans by focusing on how a conservative supermajority of justices might affect Americans’ everyday lives.
Justices are scheduled on Nov. 10, a week after Election Day, to hear another challenge of the 2010 health care law. Biden noted the court has twice upheld the law, a signature achievement of President Barack Obama’s and Biden's White House tenure. But those were divided rulings, with Ginsburg in the narrowest of majorities.
“President Trump could claim all he wants that he is going to protect people with preexisting conditions. But the fact is he’s already fighting to take those protections away,” Biden said, later reading from the administration’s brief before the court.
He listed several common conditions, including heart damage and other effects from the coronavirus that is still spreading, that could keep millions of Americans from qualifying for coverage if the law is gutted completely.
Trump told reporters Sunday it's going to be hard for Democrats “to dispute her qualifications or anything about her.”
Like Biden, House Speaker Nancy Pelosi declined to criticize Barrett directly earlier Sunday on CNN's “State of the Union.”
Biden’s only direct critique of Trump's nominee referred back to her writings as a University of Notre Dame professor, before she ascended to the federal bench in 2017.
“Prior to going on the bench, she publicly criticized Chief Justice Roberts’ opinion upholding the law,” Biden noted.
Barrett questioned John Roberts’ reasoning that Congress’ constitutional power to tax gave it authority to pass most of the law's provisions, especially the IRS penalty on individuals who didn’t buy health insurance. Conservatives insist the legislation was not reasonably a taxation bill. Congress has since, while under Republican control, scrapped the tax penalty, hoping to undercut Roberts' hook that upheld much of the statute.
Some progressives want Biden to threaten Republicans with scrapping the Senate filibuster altogether and expanding the Supreme Court with a slate of liberal appointees. Republicans have tried to use the issue in competitive Senate races and against Biden.
Trump seized on that tactic Sunday, offering a caricature of a hypothetical liberal Supreme Court hours after Biden spoke.
“If they win they will nominate justices who will destroy the American way of life,” Trump said. “Your private right to own a firearm will be eliminated, your guns will be confiscated, your ability to live by your religious faith be devastated,” he said, and “they’ll abolish America’s borders.”
The president did not offer any examples to support his claims.
Biden, for his part, declined Sunday to take the bait on court expansion.
“What I’m not going to do is play the Trump game, which is a good game he plays to take your eye off the issue before us,” Biden said. “I am focused on making sure the American people understand that they are being cut out of this process … in order to take away the ACA and your health care in the midst of a pandemic.”
Barrow reported from Atlanta. Associated Press writer Darlene Superville in Washington contributed to this report.