Editor’s Note: Dick Durbin, a Democrat, is the senior US senator from Illinois. The opinions expressed in this commentary are his own. View more opinion at CNN.
We are just weeks away from two important dates: Election Day, on November 3, and November 10, the day the Supreme Court will take up the case that will decide whether the Affordable Care Act will survive.
President Donald Trump and Senate Majority Leader Mitch McConnell want to rush the President’s nominee Judge Amy Coney Barrett through the Senate and onto the Supreme Court before those two dates arrive.
On February 13, 2016, when Justice Antonin Scalia passed away in a presidential election year, Sen. McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
The so-called “McConnell rule” was clear and unambiguous. And in 2016, Republicans fell in line behind it. They said the American people should have a voice, and election year Supreme Court vacancies should be filled in the next presidential term.
But when Justice Ruth Bader Ginsburg passed away on September 18, after Americans had already started voting in the 2020 presidential election, Sen. McConnell reversed his position and announced he would confirm her replacement this year.
Citing historical precedent from the 1880s, Sen. McConnell has claimed that whether or not the American people get a voice in an election year vacancy should depend on whether the same party that controls the Senate controls the White House.
Of course, he conveniently overlooks the fact that in the presidential election year of 1988, a Democratic-controlled Senate confirmed Justice Anthony Kennedy, the nominee of a Republican President.
But setting aside Sen. McConnell’s selective recollection of precedent, why should the composition of the Senate dictate whether or not the American people “should have a voice in the selection of their next Supreme Court Justice”? Either the American people do get an election year voice regarding the future of the court, or they don’t. In 2016 Sen. McConnell said they do; now he says they don’t. It’s a flip-flop, plain and simple.
This is not just some abstract Washington debate. The stakes are enormous for millions of Americans all over the country.
President Trump has made clear he wants to strike down the entire Affordable Care Act. That is the position the Trump administration has taken before the Supreme Court in a case that will be argued on November 10, exactly one week after Election Day.
President Trump has also made clear what he’s looking for in a Supreme Court justice when it comes to the Affordable Care Act.
Just this week, President Trump tweeted, “Obamacare will be replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court. Would be a big WIN for the USA!”
Let me be clear on two points. First, this effort to rip away health care would not “be a big WIN for the USA.” If Republicans are successful, an estimated 600,000 people in my state of Illinois alone could lose health care coverage, and millions more in my state – even those with employer-sponsored insurance – would lose protections for pre-existing conditions.
At the time of writing, we have nearly 300,000 Illinoisans who have contracted Covid-19 and joined those with asthma, diabetes and heart disease in having a pre-existing condition. As many as 133 million Americans have pre-existing conditions, according to a 2017 Department of Health report. In the middle of a pandemic, who thinks it is a good idea to return to the days when insurance companies could deny coverage, charge women more than men or impose arbitrary caps on benefits?
Second, Republicans have no plan to replace the Affordable Care Act if they succeed in striking it down. Recall that in June 2019, President Trump swore that he had a “phenomenal” health care plan and that he would be announcing it in “two months.” Still, we have nothing.
Last month, I questioned senior health officials in the Trump administration about the President’s repeated claims about having a replacement plan for the ACA. All three witnesses testified they were not aware of any replacement plan.
Republicans were never able to repeal the Affordable Care Act on the Senate floor, thanks to the late Sen. John McCain, an American hero, joining every Democrat in opposing repeal. So Republicans are trying to accomplish in the courts what they could not accomplish in Congress.
If President Trump and Sen. McConnell go through with their plan to jam through a Supreme Court nominee this year, the Affordable Care Act and its protections for pre-existing conditions will almost certainly be struck down.
And that is why my Republican colleagues refuse to do what they insisted on doing in 2016 and give the American people a voice in the selection of the next justice. Senate Democrats will not take this lying down. By using every tool at our disposal on the floor and in committee and by making sure the American people are aware of what is at stake with this Supreme Court nomination, we will fight for the future of the Affordable Care Act.