Democrats Slam Scalia for Questioning Obamacare

Friday, 30 Mar 2012 12:20 PM

By Martin Gould

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Democrats are lashing out at conservative Supreme Court Justice Antonin Scalia for alleged bias during the Obamacare hearing, even though the court’s four liberal justices were generally seen as more effective in pushing for the law than the Obama administration’s own attorney.

Two comments Scalia made during the mammoth three-day hearing have been picked as showing he has allegedly already made up his mind and will vote to overturn the Affordable Care Act.

He used the term “Cornhusker Kickback” to refer to a $100 million Medicaid payment to Nebraska proposed to secure moderate Democrat Sen. Ben Nelson’s vote, and then said the justices could not be expected to read through all 2,700 pages of the law as they wrestle with its constitutionality.

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“What happened to the Eighth Amendment?” Scalia asked Deputy Solicitor General Edwin Kneedler, referring to the article outlawing cruel and unusual punishment. “You really want us to go through these 2,700 pages?

“Is this not totally unrealistic?” Scalia added.

Nelson, who is not standing for reelection in November, said Scalia seemed not to know that the so-called Cornhusker Kickback was stripped from the bill before it went into effect. “I am concerned that Justice Scalia’s comments call into question his impartiality and instead suggest judicial activism,” he told The Hill.

Nelson was joined by other senior Democrats. Vermont Sen. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, said Scalia’s comments were typical for him. “That’s the way he always is. This after all is the man who helped push through Bush versus Gore, which every historian is going to say was a crazy thing.”

And Sen. Dianne Feinstein of California called Scalia’s comments “flip and specious.”

It was Scalia’s use of the term “Cornhusker Kickback” that Democrats pounced on to claim Scalia was biased. The term was coined by Republicans to attack what they saw as an attempt to buy Nelson’s vote.

“The consequence of your proposition, would Congress have enacted it without this provision, okay that's the consequence,” Scalia asked Paul Clement the attorney representing 26 states challenging the law. “That would mean that if we struck down nothing in this legislation but the – what you call the Cornhusker Kickback, okay, we find that to violate the constitutional proscription of venality, okay?”

"You are telling us that the whole statute would fall because the 'Cornhusker Kickback' is bad? That can't be right," he added.

Scalia, 76, was appointed by Ronald Reagan in 1986. He has been on the high court longer than any of the other eight justices. He has often been attacked by the left and his friendship with former vice president Dick Cheney adds to Democrats’ distrust.

Special: Should Obama's Health Plan Be Overturned? Vote Here Now!

Before the case started it was the newest judge, Obama appointee Justice Elena Kagan, who was under attack for an alleged lack of impartiality. She was solicitor general at the time the Affordable Health Care Act was passed. However she refused to step down from hearing the case. If Obama had not have appointed her to the bench, she would have led the government’s argument before the court.

During the three-day hearing Kagan and the other Democrat appointees, Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, asked questions that were interpreted as showing their support for the law, especially during debate on the individual mandate when current solicitor general Donald Verrilli was seen as being ineffective in making the case for keeping the law.


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