Kamala Harris, Dianne Feinstein make points but get non-answers in Barrett hearings

WASHINGTON — Democrats began Wednesday’s confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett in a familiar fashion: failing to get her to directly answer their questions.

California Sen. Dianne Feinstein returned to one of Democrats’ main areas of emphasis on the second day of the Judiciary Committee’s hearings, the future of the Affordable Care Act — the 2010 law pushed through Congress by House Speaker Nancy Pelosi and signed by then-President Barack Obama. Democrats say Senate Republicans are rushing to confirm Barrett, President Trump’s nominee to replace the late Justice Ruth Bader Ginsburg, so she can hear a case next month challenging the law.

Before becoming a federal appeals court judge, Barrett wrote a critique in 2017 of an earlier Supreme Court decision that upheld the Affordable Care Act. Chief Justice John Roberts provided the crucial swing vote in that 2012 decision, saying the law was constitutional because the requirement that people buy health insurance was backed up by a penalty that amounted to a legal tax.

Barrett, then a University of Notre Dame law professor, wrote that “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

With the Affordable Care Act heading back to the court next month — and the individual mandate again at the center of the case after congressional Republicans and Trump zeroed out the penalty attached to it —Feinstein asked Barrett to expand on her article and her view of the 2012 dissent written by her mentor, former Justice Antonin Scalia. But Barrett, as she has throughout her hearing, declined to go into more detail than what she wrote.

Democrats have political reasons for focusing on the law, which includes such popular provisions as a ban on insurers denying coverage because of a person’s pre-existing medical condition and the ability to keep children on their parents’ health plans until age 26.

However, Barrett did say the new challenge to the Affordable Care Act is different from the 2012 case, and it turns mainly on whether the court can strike a piece of the law without invalidating the whole law as unconstitutional.

The Trump administration argues that the law is now unconstitutional because congressional Republicans eliminated the penalty for not having insurance as part of the tax cut package they passed in 2017. Without that penalty — what Roberts interpreted as a legal tax — the entire law must be struck down, the administration says.

“If you picture severability being like a Jenga game, it’s kind of if you pull one out, can you pull it out while it all stands, or if you pull two out, will it still stand?” Barrett said.

Feinstein then asked her to explain how courts should decide that question, and Barrett portrayed courts’ ability to strike down only pieces of a law as designed to preserve Congress’ intent.

“I think the doctrine of severability as it’s been described by the court, you know, serves a valuable function of trying to not undo your work when you wouldn’t want a court to undo your work,” Barrett told Feinstein. “It’s designed to effectuate your intent.”

Feinstein replied: “Thank you. That’s quite a definition. I’m really impressed. Thank you.”

A similar dynamic played out as Feinstein asked about voting rights, age discrimination and Medicare.

In an exchange highlighted by Senate Democrats’ Twitter account later, Feinstein cited an article by a law professor who shares Barrett’s judicial philosophy of interpreting the Constitution as originally intended. The professor’s article argued that Medicare and Social Security were unconstitutional.

“Do you agree with originalists who say that the Medicare program is unconstitutional and if so, why?” Feinstein asked.

“I’m not familiar with that article,” Barrett said. “I think I can’t answer that question in the abstract.”

Feinstein replied: “It’s hard for me to believe that’s a real question, because I believe the Medicare program is really sacrosanct in this country.”

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan