FLASHBACK: August 18, 2003Will Specter Chair Judiciary?

[Editor’s note: This article originally appeared August 18, 2003]

Liberal Sen. Arlen Specter (R.-Pa.) is in line to chair the Senate Judiciary Committee in 2005. This means the confirmation of the next Supreme Court justice could be presided over by a pro-choice senator who holds that Roe v. Wade was correctly decided and who helped sink the Supreme Court nomination of conservative judge Robert Bork.

If voters do not oust Specter in next year??¢â???¬â???¢s primary or general election, the Judiciary gavel — and control over confirmations to the federal courts — will fall into Specter??¢â???¬â???¢s hands unless a few powerful GOP senators are willing to stop it.

The simplest solution to the problem would take a personal sacrifice by Sen. Chuck Grassley (R.-Iowa). When the party??¢â???¬â???¢s term limits on committee chairmen force Sen. Orrin Hatch (R.-Utah) to give up the chairmanship of the Judiciary Committee at the end of the current Congress, Grassley will be next in line for that position. To assume that role, however, he would need to surrender the gavel of the powerful Finance Committee.

But, according to a Grassley spokesman, the Iowa senator (who faces an easy reelection this year) is unwilling to surrender Finance, which drafts all tax law and Medicare legislation. That leaves Specter as Hatch??¢â???¬â???¢s heir-apparent at Judiciary.

New Senate Republican Conference rules limit senators to eight years as chairmen. The only other time seniority is bypassed is if the senior senator on a committee already holds another chairmanship.

Hatch??¢â???¬â???¢s eight years expire at the end of the current Congress. (The few months of GOP control before the Jeffords defection in the 107th Congress are not counted against term-limits.) Grassley, who is serving his first full year as Finance chairman, is eligible to run his committee until after the 2010 elections.

The Grassley gavel trade is not the only way to block Specter, but it is the easiest and the cleanest. Such a sacrifice on Grassley??¢â???¬â???¢s part would become unnecessary, of course, were Specter to lose reelection, either to conservative primary challenger Rep. Pat Toomey (R.-Pa.) or to Democratic Rep. Joe Hoeffel (Pa.) next November.

Also, the members of the Republican Conference could make one of two rule changes to prevent a Specter-led Judiciary Committee. First, they could waive the term limit for Hatch. Alternatively, they could circumvent rules and tradition and skip Specter for Sen. Jon Kyl (R.-Ariz.), a pro-life conservative who is fourth in seniority.

A final option, more peaceful than either of the above, is that the leadership could talk Specter into taking the chairmanship of some other committee, perhaps by offering a spot on another coveted panel.

The case is strong that conservatives and pro-lifers (as the Senate Republican leaders claim to be) ought to be ready to take drastic measures to keep Specter from running the Judiciary Committee.

The single most important function of the Judiciary Committee is to vet federal court nominees, especially nominees to the U.S. Supreme Court. Assuming President Bush wins a second term in 2004, the Republicans on the Judiciary Committee need to defend Bush??¢â???¬â???¢s nominees against assaults from the likes of Senators Ted Kennedy (D.-Mass.), Pat Leahy (D.-Vt.) and Chuck Schumer (D.-N.Y.).

The Judiciary Chairman must be the champion of any Supreme Court nominee. so he must be enthusiastic about all presidential judicial nominations. Specter, however, subscribes to the pro-abortion judicial activism of the left.

In October 1999 and then again this Spring, during debate on a bill to ban partial-birth abortion, Specter voted in favor of an amendment holding that Roe v. Wade, which in 1973 seized the abortion issue from the states and elected legislatures, was correctly decided and ought not be overturned. The amendment passed both times.

Even pro-choice legal scholars maintain that the Roe decision — based on “penumbras” and “emanations” rather than the text of the Constitution — is a prime example of shoddy jurisprudence. Most noteworthy is pro-choice law professor John Hart Ely, who laid out the absurdities of Roe in his 1973 essay “The Wages of Crying Wolf: A comment on Roe v. Wade.”

In 1987, Specter grilled Federal Appeals Court Judge Robert Bork, President Reagan??¢â???¬â???¢s conservative nominee to the Supreme Court. In his book Passion for Truth, Specter explained why he resisted Bork??¢â???¬â???¢s nomination, which was eventually voted down by the Senate. “The Constitution has turned out to be much more dynamic than [Bork believes]: a living, growing document, responsive to the needs of the nation,” wrote Specter. “Bork??¢â???¬â???¢s narrow approach is dangerous for constitutional government.”

Specter had approved of William Rehnquist??¢â???¬â???¢s promotion to chief justice and Antonin Scalia??¢â???¬â???¢s nomination (though he notes in his book that both “yes” votes were cast grudgingly) and later would come to the rescue of Clarence Thomas. But blocking Bork, he explained in his book, was essential to preserving the balance of the court.

??¢â???¬????Gentleman from Scotland??¢â???¬â???¢

Noting his fear that Reagan and Bush might get to fill three more vacancies (in fact they filled two more), Specter wrote: “A court dominated by Bork??¢â???¬â???¢s intellect with three similarly disposed new appointees plus Rehnquist and Scalia could adopt original intent and weaken or even reject judicial review. I concluded that the country couldn??¢â???¬â???¢t take that risk.”

Specter voted yes on the nominations of liberals David Souter, Ruth Bader Ginsburg and Stephen Breyer as well as swing justices Anthony Kennedy and Sandra Day O??¢â???¬â???¢Connor. In his book, he notes no reservations or objections to those judges as he did with Rehnquist and Scalia.

The Judiciary Committee, in addition to vetting judicial nominees, has jurisdiction over many abortion-related bills. In this Congress, Specter has garnered a 50% rating from the National Right to Life Committee. In past Congresses, he has hovered between 0% and 25%. This year, Specter has voted in favor of the partial birth abortion ban, but supported funding for abortions on military bases and for International Planned Parenthood.

In many circles on Capitol Hill, Specter is known derisively as the “Gentleman from Scotland” for his bizarre attempt to escape judging President Bill Clinton??¢â???¬â???¢s high crimes and misdemeanors. At the end of the impeachment trial, Specter appealed to Scottish legal tradition, explaining that he found President Clinton neither guilty nor not guilty, but, “not proven.” Specter then proceeded to vote not guilty on both counts.

The import of keeping Specter out of the chairmanship is not a matter of revenge, but a matter of ensuring that President Bush can feel comfortable nominating conservatives and constructionist judges — and that those judges will be confirmed

Already in this Congress, Specter has shown resistance to such nominees. While casting the deciding vote to report the federal Appeals Court nomination of Alabama Atty. Gen. William Pryor out of the Judiciary Committee, Specter indicated he might join the Democrats in opposing the conservative??¢â???¬â???¢s nomination on the Senate floor.

Similarly, Specter is stirring up resistance to the nomination of Leon Holmes, according to GOP Senate staffers close to the confirmation process.

Some White House advisors are already counseling the President to nominate White House Counsel Alberto Gonzales to the high court once a vacancy occurs. Gonzales, they reason, will overcome the filibusters that face conservative nominees.

With Specter running the process on the Senate floor, the White House would have more reason to nominate such a moderate.

If the White House is to feel comfortable nominating a judge such as Pryor to the Supreme Court, the Senate Judiciary chairman will have to be conservative — meaning not Arlen Specter. This will take an act of courage, either by Grassley, or the GOP Senate leadership.