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COMMENTARY: Judges Should Judge – and Legislators Should Legislate  

The process of advice and consent for a new Supreme Court Justice is currently under way in the United States Senate.

While I play no part in this constitutional process as a U.S. Representative, I am impressed by the legal ability of President Trump’s nominee to the seat, Judge Amy Coney Barrett.

Senate Democrats, however, have chosen to wage a pre-emptive war on Judge Barrett. They are either trying to scare her away from any potential adverse ruling on Obamacare or they are attempting to scare the American public that her confirmation will eliminate health care in the United States.

They used their time at the hearing to write horror stories about what would happen to Americans if Obamacare was struck down as unconstitutional, ignoring the great harm that the law has inflicted on many, including people I represent.

Judge Barrett has rightly declined to engage with her inquisitors on Obamacare, noting that it would be inappropriate to comment on a case she may have to decide. In this unwillingness to pre-judge a case, she follows the precedent of the late Justice Ruth Bader Ginsburg, who at her own confirmation hearing in 1993 said: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

She understands her role and the role of the courts more generally. They are not supposed to make laws but to interpret the laws written by Congress. This is the basic separation of powers devised by the Constitution’s framers and taught in civics classes. In fact, I just recently went over this concept with my son as he learns about it in school.

However, Senate Democrats need to go back to class. They hide behind the judicial robes of the Supreme Court’s justices instead of using the power given to them by the Constitution to fix a law, like Obamacare, that desperately needs fixing.

If you listen to Senate Democrats, you would think Congress lacks the power to fix an existing law or pass a new one. The Senate may lack the will, but it doesn’t lack the power.

My frustrations with Obamacare have been articulated in this column frequently, so you are likely familiar with them. You may be familiar with them, too, because they are your frustrations.

I have heard from too many Ninth District constituents who were forced off their insurance plans, charged ever-increasing premiums, or deprived of health care choices because of Obamacare’s unworkable and ill-conceived provisions. Residents of the Ninth District’s 22 counties and seven independent cities have only one health insurer from which they can purchase coverage.

Just since June of this year, my office has received at least 54 separate complaints from constituents about Obamacare.

I am ready to do my job. No matter how the Supreme Court rules on Obamacare’s constitutionality, Congress can act right now to improve health care in this country. I ask congressional Democrats to focus on working with Republicans to legislate rather than bullying Judge Barrett.

In the House Energy and Commerce Committee, we have advanced many health care bills on a bipartisan basis only to see them upended by Speaker Pelosi.

Take prescription drug reform. We unanimously passed a series of bills at the committee level tackling this subject, only to see the Speaker put them together with measures related to Obamacare that would not pass the Senate or be signed by President Trump. Speaker Pelosi did this again when she pushed H.R. 3, which tossed aside our bipartisan committee work on prescription drugs in favor of a heavy-handed and possibly unconstitutional approach.

Republicans and Democrats also widely agree on protecting Americans with pre-existing health conditions. Republicans have introduced bills on this subject, yet Democrats would have you believe that the only possibly way to protect these individuals is to keep Obamacare in full.

I do not know how Judge Barrett will rule on Obamacare when she is confirmed to the Supreme Court. I believe she is a fair-minded jurist who would rule on the merits of the case and the law, not any agenda of her own. But as a Supreme Court justice, she should not do Congress’ job, which is to write laws. Nor should any justice be deluded into thinking Congress does not have the power to write laws. That is the job I have, and I hope congressional Democrats will join me in performing it.

– Congressman Morgan Griffith

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