Pennsylvania Gov. Wolf aims to pressure Sen. Toomey into voting against Barrett confirmation

Pennsylvania Gov. Tom Wolf in a press conference Thursday called on Sen. Pat Toomey, who was one of the last Republicans to come out in favor of moving to confirm President Trump's Supreme Court pick ahead of the presidential election, to vote against nominee Amy Coney Barrett, citing a "looming threat" that the Affordable Care Act (ACA) could be overturned. 

"There is a looming threat hanging over the heads of everybody in this country," Wolf said. "That is the threat that the Supreme Court could rule as early as the first or second week ... of November that the Affordable Care Act is unconstitutional. And if they do that, that act is going to go away."

Wolf continued to note that Toomey in 2016 opposed filling the Supreme Court seat of late Justice Antonin Scalia before the presidential election and now is supportive of filling late Justice Ruth Bader Ginsburg's seat less than a month before the election.

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"Let's ask our senator, Pat Toomey, to do what he said was right back in 2016 when there was 11 months between the time to choose a new person for the Supreme Court ... and the election," Wolf said. "He said, 'I don't think it's right to vote ahead of the election, 11 months ahead of the election. Let the American people decide who they want for president and then let that president do the nominations.'"

"Let Sen. Toomey follow through on his own idea on what is legitimate and what is the right thing to do for the people of this country," Wolf added. 

Toomey's office accused Wolf of improperly politicizing the Supreme Court. 

"Senator Toomey believes the proper role of every judge, including Supreme Court Justices, is to apply the law, including the U.S. Constitution, as written, not to decide cases based on a preferred policy or outcome," Bill Jaffee, a spokesman for Toomey, said. "The mandate in Obamacare that requires individuals to purchase health care is clearly unconstitutional. Whether or not that flaw invalidates all of Obamacare is the question before the Supreme Court, and should be decided based on the law and constitution, not what they think of the policy."

Jaffee continued: “Unfortunately, many Democrats, like Governor Wolf, prefer the Supreme Court to act as an unelected legislative body, rendering decisions based on their policy preference, irrespective of what the law and constitution demand."

Republicans have also argued, despite Wolf's and Democrats' accusations of hypocrisy, that in almost all cases in the past when the Senate and presidency are controlled by the same party, the Senate has confirmed election-year Supreme Court nominees. 

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"In 2016, the White House and the Senate, which share equally the constitutional authority for filling a Supreme Court vacancy, were controlled by different parties," Toomey said in a statement last month. "When power is divided during a presidential election year, the Senate’s general practice has been to leave open a Supreme Court vacancy so that the voters may speak and possibly resolve the disagreement created by the division."

He added: "The circumstances surrounding the current vacancy are, in fact, different. While there is a presidential election this year, the White House and the Senate are currently both controlled by the same party. The Senate’s historical practice has been to fill Supreme Court vacancies in these circumstances."

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The Senate, however, has never confirmed a Supreme Court nominee this close to a presidential election. 

The comments by Wolf, a Democrat, are yet another sign of how seriously both sides are taking the battle over the Supreme Court seat of late Justice Ruth Bader Ginsburg. Those for and against Barrett's confirmation are each spinning up their massive political machines ahead of her hearings next week and each plan to spend tens of millions of dollars on advertising about the nomination. 

Those on the left, like Wolf, say they are particularly worried about the fate of the ACA, also known as Obamacare. There is a constitutional challenge to the ACA set to be argued in the Supreme Court just days after the presidential election. Barrett will be a Supreme Court justice by that time if Republicans in the Senate have their way, and Democrats believe she could be the deciding vote in overturning the law. 

Wolf said Thursday that if the ACA is overturned it would be devastating for people who benefited from expanded Medicaid and other insurance options that came from the act, as well as other health insurance options. Wolf added that because of the coronavirus pandemic, many more people will have preexisting conditions. 

"Remember before the Affordable Care Act, preexisting conditions, well you were out of luck. you didn't get insurance," he said. "What's life going to be like if we go back to the way it was?"

That the ACA would be completely be overturned by the Supreme Court if Barrett is seated is far from certain. Red states behind the challenge are arguing that because the individual mandate no longer has a financial penalty associated with it, it can no longer be read as a tax and therefore is simply an unconstitutional government mandate to buy a product.

Some legal observers note that even if the Supreme Court accepts that argument there is a chance that due to congressional action since the law was passed making the mandate less central to the law, the justices could rule that part of the law "severable." That means the court would strike down just the individual mandate and leave the rest of the law intact. 

Sen. Pat Toomey, R-Pa., speaks during a ceremony Wednesday, Sept. 18, 2019, in Washington. Toomey will not run for reelection in 2022. (AP Photo/Alex Brandon)

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Republicans, despite a handful of coronavirus cases in their caucus that could complicate logistics on how to vote, appear to have the votes they need to confirm Barrett before the presidential election. There are 53 Republican members in the Senate and only two, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, have said that they oppose confirming a Trump nominee before the presidential election. 

That means Republicans can afford one unexpected defection and still be able to confirm Barrett with Vice President Pence breaking a 50-50 tie. Senate Democrats have sworn that they will do everything they can do to stop Barrett's confirmation, but as long as Republicans stick together, some are becoming resigned that her confirmation is an inevitability. 

"There's no procedural move that I'm aware of that allows the minority to slow this process down at all," said Sen. Chris Coons, D-Del. "And trust me, I've asked a lot."

Toomey this week announced that he will not run for reelection in the Senate in 2022 and that he will not run for governor either, which he was rumored to have been interested in doing. 

Fox News' Marisa Schultz contributed to this report.