Monday, October 12, 2020

The American Bar Association Letter to the Senate About Barrett Is Going to Upset Some Democrats

By Scott Hounsell | RedState 

 (Graeme Jennings/Pool via AP)

The American Bar Association, known for rating judicial appointments prior to their confirmations, has issued a letter to the US Senate Judiciary Committee to offer their rating for Judge Amy Coney Barrett and Democrats will not be too happy about it.

The ABA, which Chuck Schumer has previously identified as the “Gold Standard” of judicial ratings, has rated Barrett as “well-qualified” for her nomination to the United States Supreme Court.

“The American Bar Association’s Standing Committee on the Federal Judiciary has completed its evaluation of the professional qualifications of Judge Amy Coney Barrett, who has been nominated by the President to be an Associate Justice on the Supreme Court of the United States.  As you know, the Standing Committee confines its evaluation to the qualities of integrity, professional competence, and judicial temperament.  A substantial majority of the Standing Committee determined that Judge Barrett is “Well Qualified,” and a minority is of the opinion that she is “Qualified” to serve on the Supreme Court of the United States.  The majority rating represents the Standing Committee’s official rating.”

“Well Qualified.”  That certainly is going to fly in the face of many of the attacks you can expect from Democrats in the coming weeks as Barrett advances to confirmation.  This follows the same pattern for both Justice Kavanaugh and Justice Gorsuch, both of whom were rated “Well Qualified” by the ABA as well.  Both Justices Kagan and Sotomayor also received “Well-Qualified” ratings from the ABA.

This is likely to ruffle some feathers with Democrats, who would have liked some way of delaying or disqualifying Barrett’s confirmation to SCOTUS.  Fortunately, it will push Barrett’s nomination further to certainty as Democrats have accepted these ratings in the past as legitimate and helpful.



Dianne Feinstein Opens Barrett Hearings With a Great Big Whopper About Preexisting Conditions


(CSPAN screenshot)

The Senate Judiciary Committee began hearings on the nomination of Amy Coney Barrett today, and Ranking Member Senator Dianne Feinstein (D-Calif.) let everyone know what the Democrat members’ focus would be. On November 10, the Supreme Court will begin hearings on Texas v. California, which challenges Obamacare’s constitutionality. Feinstein was careful to refer to the legislation as the Affordable Care Act.

Judge Barrett has gone on the record stating that she felt Justice John Roberts’ majority opinion in National Federation of Independent Business v. Sebelius went beyond the ACA legislation’s scope to preserve the statute. For those who don’t remember, he classified the individual mandate as a “tax.” As the federal government has the ability to levy a tax, this fell within the scope of federal power.

The Trump administration has repealed the individual mandate, thereby leaving the legislation on tenuous legal ground. The questions before the Court are: (1) Whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act; and (2) whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere.

Feinstein also previewed that these hearing will be full of emotional, albeit questionable, stories. As the camera panned to the full room, you could see large pictures behind each Democrat senator, representing tearful stories, to be sure. The stories bring into stark relief the difference between Democrats’ and Republicans’ views of the Court. Emotional arguments may be compelling, but the Court should be deciding whether a law is constitutional.

To begin the emotional argument, Feinstein launched the preexisting condition lie:


Feinstein asserts that more than 130 million Americans will lose preexisting coverage if the ACA is repealed. Not all Americans will lose preexisting condition coverage. In the 1996 Health Insurance Portability and Accountability Act (HIPPA), employer-based plans were barred from denying coverage or charging higher premiums based on health status, including gender and age.

It also put into place rules about preexisting conditions. Pregnancy is no longer allowed to be considered one, and it only applies to conditions if a person is diagnosed within the six-month period before obtaining coverage. The maximum waiting period to receive coverage for the condition is 12 months. If you change employers, as long as the coverage gap is not greater than 63 days, it is illegal to impose any preexisting coverage exclusion on your new employer plan. COBRA coverage is also mandated if you leave or lose the job that provided insurance to ensure you can cover any gap greater than 60 days at your employer’s full negotiated premium.

Further, according to, 6% of Americans get their insurance through the individual market. Meanwhile, 49% get their insurance through employer-based plans. Those Americans would immediately receive the protections under HIPPA for preexisting conditions. HIPPA could easily be amended to eliminate waiting periods in the six-month window that currently exists. The remaining Americans are covered by Medicare and Medicaid, which have their own rules regarding coverage.

Repealing Obamacare would also allow insurance companies to provide a wider range of plan designs. Lower-cost catastrophic plans with discounts for preventative care or prescriptions may be attractive for many younger individuals. The ACA makes those unavailable today outside of short-term gaps. More choice seems like a better way to insure more people.

One of the fatal flaws for the ACA going forward is that younger, healthier individuals do not wish to pay the premiums on the individual market, and there is no longer a penalty for not doing so. Even when the individual mandate was in force, it was often cheaper to pay the penalty that the insurance premium. The so-called “Cadillac tax,” or excise tax on employer-based plans, has also been repealed during the Trump administration. The young use less care but pay the same premium as those who are older and sicker under Obamacare, and the penalty on employer plans required them to fund the individual market plans fully.

Feinstein’s other bizarre assertions about lack of care for women is really a cover the ACA’s abortion and contraceptive coverage. Greater freedom in plan design would either cover preventive care, or it wouldn’t. Individuals would be able to choose among options. Preventive care would go by the current medical practice guidelines for age and gender. Insurers have a lot of financial incentives to offer and encourage these services. Early detection leads to less expensive care.

Another strange assertion by Feinstein was the story she told about her constituent. According to her recitation, Christina Garcia was thrilled to obtain coverage through the ACA in 2010. That is amazing because California did not open their exchange until 2013 for enrollment in 2014. Before that, there were some subsidies available that maxed out at $5,200 per year. Also, acute surgeries, like C-sections, are not considered preexisting conditions that would cause someone to be denied coverage as Feinstein asserted in this constituent’s case.

In reality, the ACA caused some tragic stories for those in employer-based plans and those on the individual market. As many have asserted, health insurance is not healthcare. Premiums and deductibles have risen dramatically over the last several years, with many employers moving to high-deductible plans to control costs. Many people find themselves unable to afford healthcare because their insurance, even on the open market, costs so much.

When you listen to Democrats’ sob stories, you can scroll through the replies to this thread. Not only did Obama lie about keeping your doctor, but he also lied about saving $2,500. At the end of the day, the cost of healthcare is not at issue for SCOTUS. The only question the Court needs to answer is whether the Constitution allows the federal government to manage healthcare in the absence of levying a “tax.”


FACT CHECK: More People Delaying Health Care Over Costs Now Than Pre-Obamacare


(AP Photo/Andrew Harnik)

A common myth being presented during the Amy Coney Barrett hearings is the notion that many Americans who couldn’t afford healthcare before the Affordable Care Act was passed and implemented suddenly could.

Unfortunately for the Democrats, the data suggests otherwise. According to a Gallup survey from December 2019, 33 percent of Americans say they or a family member put off treatment for a health condition because of the costs.

This number has remained virtually unchanged since Obamacare was passed. In fact, the number has averaged about 30 percent since 2006, which is significantly higher than it was back in 2001, when only 19 percent of Americans said they or a family member put off treatment for a health condition because of the cost.

Worse yet, Obamacare hasn’t improved the situation for those with pre-existing conditions. “Reports of delaying care for a serious condition due to costs are also up 13 points compared with last year among Americans who report they or another household member has a ‘pre-existing condition,'” Gallup reported. “At the same time, there has been virtually no change in the percentage of adults without pre-existing conditions in the household who delayed care for a serious health issue in the past year, currently 12% versus 11% in 2018.”

Gallup does urge some caution with regard to the four-point jump in those reporting delaying care over the previous survey. “Most of the recent increase in reports that family members are delaying treatment for serious conditions has occurred among self-identified Democrats,” explains Gallup. “This is up 12 points since 2018 among Democrats, compared with three- and five-point increases among Republicans and independents, respectively.”

The partisan gap in the responses to these questions is the largest in two decades. The reason for this, Gallup can’t say for sure. But seeing as Gallup reported there’s been no major change in health coverage, the sharp spike of self-identifying Democrats reporting delaying healthcare over costs is likely done for partisan reasons, as the survey occurred in the heat of a Democratic presidential primary.

But one thing that is clear: fewer people were delaying medical care over costs back in 2001, and Obamacare has done nothing to reduce the number of people delaying health care over costs. Nothing at all.


Matt Margolis is the author of the new book Airborne: How The Liberal Media Weaponized The Coronavirus Against Donald Trumpand the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis