Scalia: Dems will use Obamacare as 'red herring' in attacking SCOTUS pick Barrett

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Scalia on the type of person Judge Amy Coney Barrett is

Eugene Scalia, labor secretary, joins 'Fox News Sunday.'

Labor Secretary Eugene Scalia warned that Democrats will use Obamacare to attack Supreme Court nominee Amy Coney Barrett, but he said there's no substance to the claims.

Barrett has criticized the Supreme Court decision that ruled that the individual mandate in the Affordable Care Act was legal because the penalty for not having insurance was considered a tax, and thus fell under a specific power of Congress.

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"It's a red herring," Scalia told "Fox News Sunday" while discussing Barrett's qualifications. "I think it reflects a bit of frustration on the part of the Democrats on how they might attack her nomination."

Barrett has spoken against Chief Justice John Roberts' decision on Obamacare, but Scalia noted that this was before she became a federal appeals court judge, let alone a Supreme Court nominee. He also said that whether or not the mandate was legal when first instituted is "not a question that will be before the court."

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Ongoing litigation over Obamacare does involve the individual mandate, but the current challenge does not question whether the penalty was a tax when the law was first passed -- rather, it questions whether it can still be considered a tax now that it has been lowered to zero.

"The question of whether it's a tax or not is moot, it's gone. It's a totally different case," Scalia said. "The fact that this is being raised shows that Democrats are casting about for anything by which they might seek to oppose an exceptional nominee."

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Another avenue of attack that Scalia predicted Democrats may take is Barrett's devout Catholic faith, which came up a number of times during her circuit court confirmation hearing in 2017.

Scalia, the son of late Justice Antonin Scalia, said he has known Barrett for years and that she is "a very respected scholar" and a "thoughtful jurist."