Earlier this week, the President took an unnecessary and overtly political swipe at the Supreme Court of the United States. (This is not the first case of the President taking such action, recall his comments during his State of the Union about the Citizens United case and Justice Alito's reaction to the President's comments).
Here is what the President said:
"Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress. I'd just remind conservative commentators that for years what we have heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly-constituted and passed law. Well, this is a good example and I am pretty confident that this court will recognize that and not take that step." [Emphasis added].
Ignoring the fact that I take issue with the President's characterization of how conservatives would view or define judicial activism (it is creating "rights" by judicial decree, using a judges personal opinion to expand government's power over the citizenry, using the judge's views as a substitute for that of the legislature while simultaneously ignoring the plain reading of the Constitution or statute, and looking to foreign law instead of American law as a basis for ruling on a case), I strongly disagree with the President's characterization of the make-up of the Congress that passed ObamaCare. The President is misleading the American people on this issue - and he knows it.
The President wants to talk about the "unelected" - let's talk! Before passing the United States Senate, the ObamaCare bill had to clear a "cloture vote" which means 60 Senators would have to vote to "cut off debate" and end the amendment process. On December 23, 2009, the Senate held that vote and, by the absolute slimmest of margins, cloture was invoked. (See Roll Call Vote 395). ObamaCare passed the Senate only after 60 Senators voted to invoke cloture but of those 60 Senators who voted for cloture, FIVE, yes five, were unelected Democratic Senators.
WHO WERE THE FIVE UNELECTED SENATORS THAT PASSED OBAMACARE?
- Sen. Roland Burris (D-Illinois). Burris was appointed by now-convicted former Governor Rod Blagojevich (D) to fill the Senate seat vacated by Barack Obama after he was elected President. Certainly President Obama knew yesterday that his unelected successor was one of five deciding votes that passed ObamaCare. Burris would retire at the end of the 111th Congress and never face voters for his vote for ObamaCare. This U.S. Senate seat is now held by Republican Mark Kirk who was elected by the people in 2010.
- Sen. Ted Kaufman (D-Delaware). Kaufman was appointed to fill the Senate seat vacated by Vice-President Joe Biden after the 2008 election. Like Burris, Kaufman would retire at the end of the Congress without ever having to face the voters for his vote for ObamaCare.
- Sen. Michael Bennet (D-Colorado). Bennet was appointed to fill the vacancy created when Ken Salazar resigned to become Obama's Secretary of the Interior. He was elected in his own right to the Senate in 2010.
- Sen. Kirsten Gillibrand (D-New York). Gillibrand was appointed to fill the vacancy created when Hillary Clinton resigned to become Obama's Secretary of State. Ironically, the man who appointed Gillibrand to the Senate, Gov. David Paterson (D), was himself never elected Governor (he became governor after Elliot Spitzer resigned from office in disgrace). Gillibrand was elected in her own right to the Senate in 2010.
- Sen. Paul Kirk (D-Massachusetts). Kirk was elected to fill the vacancy created by the death of Sen. Ted Kennedy (D). Like Burris and Kaufman, Kirk would retire at the end of the Congress without ever having to face the voters for his vote for ObamaCare. This Senate seat is now held by Republican Scott Brown who won a special election running against ObamaCare.
- Honorable Mention: Sen. Arlen Spector (D-Pennsylvania). Specter was elected to the Senate five times as a Republican. Having never been elected as a Democrat, he switched parties and became a Democrat on April 30, 2009 and switched his positions on a number of health care issues, ultimately voting for ObamaCare. Ironically, Spector gave a lengthy floor speech in 2001 following Senator Jim Jeffords (VT) party switch in which he praised the idea that a Senator should resign if he intends to switch parties and stated he would propose a rules change related to party switches. Specter lost the 2010 Democratic primary and his seat is now held by Republican Pat Toomey who won the 2010 Senate election for the Senate seat.
It took five unelected Senators to invoke cloture on the ObamaCare bill. It took five unelected Senators - who had never been chosen by the American people - to pass ObamaCare. Three of those Senators never faced the voters to stand for election after their votes and another (Specter) lost his seat in an election.
When the President claims that ObamaCare was passed by a democratically elected Congress, it is up to opponents of ObamaCare to point out that the bill never would have passed Congress but for the votes of five unelected Democratic Senators.
UPDATE: On Tuesday of this week, a judge for the Fifth Circuit Court of Appeals, Judge Jerry Smith, asked the Department of Justice to provide a letter to the court stating whether Attorney General Holder believes the court does in fact have the power to strike down a federal law. Judge Smith specifically referenced the President's comments when requesting the letter from DOJ. Read more on this developing issue here and here.