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Graham separates policy debates from legal interpretation in Supreme Court hearing

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Supreme Court Barrett (copy)

Committee Chairman Lindsey Graham speaks during the opening of the confirmation hearing for Supreme Court nominee Amy Coney Barrett before the Senate Judiciary Committee on Monday, Oct. 12, 2020, on Capitol Hill in Washington. Susan Walsh, Pool/AP

COLUMBIA — To begin the questioning period Tuesday of Supreme Court nominee Amy Coney Barrett, U.S. Senate Judiciary Committee Chairman Lindsey Graham sought to distinguish between political debates and legal interpretations, homing in on a key point of contention between Republicans and Democrats on the panel.

Graham, R-S.C., opened his 30-minute allotment by laying out his personal opinions on the Affordable Care Act, commonly referred to as Obamacare, which is being challenged in a case that is set to come up before the Supreme Court soon.

"From my point of view, Obamacare has been a disaster for the state of South Carolina," Graham said. "All of you over there (Democrats) want to impose Obamacare on South Carolina. We don't want it. We want something better. We want something different."

In place of Obamacare, Graham touted his proposal to block grant federal funds to states and give the states authority to design their own health insurance systems. Graham's effort to pass that proposal fell short in 2017.

But Graham added, "that's a political fight," and those questions should be left up to elected lawmakers, not judges, who he said are tasked solely with interpreting the legality of legislation without regard to the policy consequences of their decisions.

"Analyzing a lawsuit and having a political argument is fundamentally different," Graham said.

Referencing his own competitive reelection race against Democratic challenger Jaime Harrison, Graham added, "My fate will be left up to the people of South Carolina."

Graham then turned to the pending lawsuit challenging Obamacare, which Barrett could be in position to rule on if confirmed.

By contrast to his political opposition, Graham asked Barrett solely about the legal questions surrounding the law, which she explained center around a concept called "severability" — whether an entire law should be invalidated if one element of it is found unconstitutional.

Republican state officials have argued that the law became unconstitutional when Congress zeroed out the penalty for failing to obtain health insurance in 2017. The Supreme Court had previously upheld the law in 2012 based on the notion that the penalty could be considered a tax, which Congress is authorized to impose.

Barrett said she could not yet determine whether she would recuse herself from the case because it would be a decision made in consultation with her Supreme Court colleagues.

Questioned further by Democrats on the panel later in the hearing, Barrett insisted she was "not hostile" to the Affordable Care Act.

"I apply the law, I follow the law, you make the policy," she told U.S. Sen. Dick Durbin, D-Ill.

Graham's line of questioning drew a strong rebuke from Harrison, who argued Graham is rushing to fill the Supreme Court vacancy in order to achieve through the courts what he was unable to get through Congress: a repeal of Obamacare.

"Undoing this law would unleash chaos throughout our health care system during a pandemic — pulling coverage away from nearly 250,000 South Carolinians and stripping protections for the over 900,000 South Carolinians with pre-existing conditions," Harrison said. 

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"The real disaster for South Carolina health care is Sen. Graham holding this seat," Harrison added.

The uninsured rate in South Carolina has dropped significantly since Obamacare first passed, from as high as 20 percent in 2008 to about 12 percent in 2018, according to U.S. census data.

The early years saw a spike in premiums as insurers fled the marketplace, leaving only a single insurance giant from which South Carolinians could choose. That problem has gradually leveled out, however, as more insurers have now entered the marketplace.

South Carolina is one of 12 states that has chosen not to adopt Medicaid expansion, which would provide the state with more federal funding for health insurance to low-income and disabled people but would require the state to pay for 10 percent of the costs.

In a similar vein to his health care questions, Graham also asked Barrett about three other hot-button political issues that might come before the court: abortion, guns and campaign finance.

Graham has supported a 20-week abortion ban bill, which would likely lead to litigation if passed. Asked if she would listen to the arguments on both sides if the case came before her, Barrett responded, "Of course, I would do that in every case."

On guns, Barrett again explained she would listen to arguments from both sides if a case arose that challenged the court's precedent on which restrictions are permissible under the Second Amendment.

Barrett acknowledged she personally owns a gun and is Catholic, but she insisted she has always set aside her personal views when deciding cases and would continue to do so if confirmed to the Supreme Court.

On campaign finance, Graham quipped that he is becoming more amenable to regulating donations because Harrison has raised a record $86 million in his bid to unseat him. Still, he added, the policy implications of landmark decisions like Citizens United should not be of concern to Barrett. 

"I don't know what's going on out there, but I can tell you there's a lot of money being raised in this campaign and I'd like to know where the hell some of it is coming from," Graham said. "But that's not your problem."

Graham also asked Barrett about a topic he said would not be likely to come before the court: segregation.

Asked about what it would take for the court to overturn the landmark Brown vs. Board of Education ruling that found "separate but equal" public schools to be unconstitutional, Barrett explained that either a state or Congress would first need to reimpose their segregation policies for it to even become a legal controversy.

"I do not see that happening anytime soon," Barrett said.

Each senator on the 22-member judiciary committee gets 30 minutes to question Barrett, a process that could take a total of 11 hours. The hearings are expected to wrap up later this week.

Follow Jamie Lovegrove on Twitter @jslovegrove.

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