As the Supreme Court pokes holes in ‘Obamacare,’ a former Judiciary chair regrets what he created

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Former senator Arlen Specter. (Reid Pillifant)
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Former Pennsylvania senator Arlen Specter, who participated in the confirmation hearings of every justice currently sitting on the Supreme Court, wondered aloud what he might have done differently to head off the fiercely "ideological" court that he fully expects to strike down President's Obama health care law.

"I could have paid more attention to [Chief Justice John] Roberts' earlier record when he was assistant White House counsel in the Department of Justice, where there were clues to his conservatism, being far right, far different than the line he uses on being an umpire on balls and strikes," Specter told me over a burger at the Michelango Hotel on West 51st Street, shortly before the conclusion of yesterday's oral arguments on the Affordable Care Act.

"When he met with me—as chairman, I had the first meeting—he said he was going to be modest and wasn't going to jolt the system," said Specter, who served as chairman of the Judiciary Committee at the time, and so provided the press with the crucial first review of any new nominee.

"He got off to a good start when I accepted his representations. And if I'd had 20-20 hindsight, I might have done something about it."

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Specter, a pro-choice Republican who was chased into the Democratic caucus by a conservative primary threat in 2009, after voting to support both the president's stimulus package and his health care reform bill, expressed particular concern about what he said was the Roberts Court's lack of respect for established precedent.

"In Citizens United, the Supreme Court reached for the case, as you know, re-ordered the issues, and just ran roughshod over stare decisis," he said. "One more justice and they'll do away with Roe and any other goddamn thing that displeases them. And that's my view of the ideological court you're facing now."

Specter had just arrived in New York that morning for a publicity tour to promote his new book, Life Among the Cannibals, an autobiographical argument against the stark partisanship that has thinned the ranks of congressional moderates like himself. (After switching parties, Specter lost a Democratic primary in 2010 to Joe Sestak, who went on to lose to the Republican candidate, Pat Toomey.)

Specter, who just turned 82, was reclining in the classic Senate uniform: a navy suit, white shirt and red tie; and he munched on a burger until a second entree—he had thought he was ordering soup—arrived midway through the meal, and he promptly gave up on the burger.

Since his ouster from public life, Specter has been on something of a crusade to convince moderate voters to rise above the din of Tea Party politics, and he had a host of media appearances planned to promote the book, but was taking the first day relatively easy in preparation for a stand-up comedy gig at Caroline's that night—his third—which he was undertaking against the suggestions of his wife.

For Specter, the extremist shift of the court mirrored that of the Senate, where he kept coming back to Lisa Murkowski's write-in victory over a Tea Party Republican who defeated her in the Alaska primary, as the example of what a motivated, moderate electorate could really do.

"I think when the showdown comes, America will vote overwhelmingly for Roe. But to do that, America has to know how this court is handling stare decisis. It's another Murkowski issue. Do you think people have any inkling as to how this court fundamentally discards fundamental constitutional doctrine?"

Specter, who has said invalidating the law is the "likelihood," didn't have much faith in Justice Anthony Kennedy to side with the liberal bloc, if the court divided down the middle.

"Kennedy luxuriates in hearing the term 'The Kennedy Court.' He loves to play to the crowd on being the swing vote," said Specter, who cited a divided 2009 West Virginia case calling for the recusal of a state judge as evidence that Kennedy was capable of rising above it all, even as he succinctly explained why he expects the swing justice to side with the conservatives.

"Because he does very consistently," Specter said. "He does it almost all the time."

Kennedy is widely expected to cast the crucial vote in whatever decision the court arrives at on the constitutionality of the individual mandate in Obama's health care legislation, or of the law overall. Early indications seem to be that Kennedy is siding with the conservative skeptics.

Specter suggested a decision in the health care law could help Democrats in November, but he took a slightly different tack than Senator Chuck Schumer, who had previously told me that any decision by the court was a political victory for Democrats, because it would either validate the law or take the issue off the table.

"Chuck is a brilliant guy who could develop a theory for any scenario," said Specter.