Democrats are fuming over Justice Antonin Scalia’s conduct during this week’s Supreme Court deliberations on President Obama’s healthcare law.
Scalia appeared hostile to the law while several of the high court’s liberal justices seemed to cheerlead for its defense. But it was Scalia’s attitude that rubbed some Democrats the wrong way.
Scalia mocked the so-called “Cornhusker Kickback” without seeming to know that provision was stripped out of the law two years ago. The justice also joked the task of having to review the complex bill violated the Eighth Amendment’s ban on cruel and unusual punishment. “You really want us to go through these 2,700 pages?” he quipped. “Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one.”
The comments did not sit well with Sen. Ben Nelson (D-Neb.), a member of the Gang of 14, which in 2005 established guidelines for considering judicial nominees. “I am concerned that Justice Scalia’s comments call into question his impartiality and instead suggest judicial activism,” Nelson said. Nelson was taken aback by Scalia’s suggestion that reading the law was too much to expect of justices ruling on its constitutionality.
Scalia’s use of the term “Cornhusker Kickback”, a term coined by GOP political operatives during the healthcare reform debate, also raised concerns — especially since Scalia appeared unaware the provision was scrapped before Obama signed the law.
“Scalia said [Wednesday] that it was totally unrealistic to read the whole law. Sen. Nelson didn’t think it was too much for the justices to know what they’re talking about when questioning the law’s content,” said Nelson spokesman Jake Thompson.
“It seems fitting that Justice Scalia’s attempt at humor instead displayed his ignorance of the law. Sen. Nelson hopes the justice will concentrate on the actual instead of the perceived or interpreted views as he weighs the laws against the Constitution,” Thompson added.
A spokeswoman for the Supreme Court did not respond to a request for comment Thursday afternoon.
Nelson secured a special $100 million payment to cover higher Medicaid costs during the 2009 healthcare debate, which Republicans slammed as the “Cornhusker Kickback.” Congress dropped the provision in response to a public uproar against it. However, Nelson’s approval ratings took a hit after the controversy and he announced late last year that he will not seek reelection.
Regular observers of the court know that Scalia has a big personality and that his quips can have a sarcastic tone or verge on bombast. The personality quirks of the justices usually receive little attention, but this week was different as the court commanded the nation’s attention during three days of oral arguments.
Scalia’s demeanor contrasted starkly with the evenhanded questioning of Chief Justice John Roberts.
Democrats are not inclined to give Scalia any slack because they think his mind is closed against the healthcare law and his judgment is clouded by partisan politics.
Sen. Dianne Feinstein (D-Calif.) a senior member of the Senate Judiciary Commission, questioned Scalia’s complaint about the bill’s length and musings on the “Cornhusker Kickback.”
“These arguments are flip and specious, that’s all I can say,” said Feinstein.
Feinstein said striking down the healthcare law would have enormous implications that should be taken very seriously.
“This could take down Social Security, too,” she said. “If the questions indicate a trend line as reported there’s real jeopardy for the government to achieve any real benefits for people. Even Medicaid is in question.”
She said Congress put years of work and thought into healthcare reform in the years since former First Lady Hillary Clinton spearheaded a failed healthcare reform effort in 1993.
“This is the biggest Supreme Court hearing in terms of effect on the nation in my lifetime,” she said.
A senior Democratic aide said Scalia’s conduct during the oral arguments were “unbecoming of a justice.”
“You would think after Bush v. Gore and Citizens United the court would be more sensitive to the perception that it’s politicized. Scalia seems unaware. He said some things that sounded like they came from a Republican spokesman,” the aide said in reference to the 2000 decision awarding the presidency to George W. Bush and the 2010 ruling that gave corporations and labor unions greater freedom to influence elections.
Democrats view the Bush v. Gore and Citizens United v. Federal Election Commission as two highly politicized rulings that broke with precedent.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said colleagues should not be surprised by Scalia’s behavior.
“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,” Leahy said.
Scalia’s close relationship with former Vice President Dick Cheney adds fuel to Democratic doubts about Scalia’s impartiality on politically charged legal issues.
Scalia came under scrutiny in early 2009 for a duck-hunting trip he took with Cheney at a private camp in Louisiana. Legal experts questioned the timing of the trip because it took place a few weeks after the Supreme Court agreed to consider Cheney’s appeal in a lawsuit related to his handling of a special energy task force during the Bush administration.
The Sierra Club asked Scalia to recuse himself but he refused. “Since I do not think my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse,” he wrote in a memo at the time.
Scalia, 76, was unanimously confirmed by the Senate in 1986.
Alexander Bolton writes for The Hill, from where this article is adapted.