November 05, 2004,
That didn't take long. On Wednesday, President George W. Bush hit his first post-election pothole one created by a fellow Republican whom he had saved from political oblivion earlier this year. Senator Arlen Specter (R., Penn.), who by virtue of Senate seniority rules is in line to become the chairman of the powerful Senate Judiciary Committee, fired a shot across the president's bow, warning Bush that he would block any judicial nominees that he deemed too conservative.
Bush has often said that he does not apply any form of litmus test in choosing judges, apart from their ability to put aside their policy views and interpret the law as written. But Senator Specter made clear that he would apply a specific test. "When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter told a reporter, going on to compare Roe with Brown v. Board of Education. He offered unsolicited advice to the president that Senate Democrats would be unwilling to confirm "Bush's conservative judicial picks," and said that he "would expect the president to be mindful of the considerations which I mentioned."
a mandate for him to start dictating
to President Bush on judges.”
The senator should perhaps have been mindful of what happened on Tuesday. Faced with what was supposedly the most evenly divided electorate in our history, President Bush garnered 51 percent of the vote, a figure higher than that of any Democratic candidate for president in the last 40 years. For the second election in a row, the Senate moved further right, giving Bush a 55-seat Republican majority. Tom Daschle, the obstructionist-in-chief of the Senate, is sitting at home today trying to figure out what went wrong and everyone knows that judges and social issues are part of the answer. Yet Specter seems to have divined in all this a mandate for him to start dictating to President Bush on judges.
Put aside the sheer gracelessness of it. Without Bush, Specter would have lost to Rep. Pat Toomey in the Republican primary this year and be observing confirmation battles from a well-deserved retirement. Senator Specter's comments which are in keeping with his track record on this issue demonstrate a lack of the necessary temperament and instincts to manage the crucial job of overseeing the confirmation of President Bush's judges.
The comparison of Roe to Brown was a gratuitous and vicious insult to the bulk of his own party. Pro-lifers are not segregationists, and Specter's side of this debate is not that of human rights. Nor is Roe settled law, the way Brown is. Specter noted that the Court had reaffirmed it in the 1992 Casey decision. But Casey modified Roe in ways that Roe's author disliked. In 2000, the justices who gave us Casey were unable to agree on whether it protected partial-birth abortion. And if Roe is so settled, why does Specter feel it necessary to exert himself to defend it?
It is one thing for Specter to believe that abortion should be unregulated. What he is saying is that the voters of no state should be allowed to act on a different view and that he will go to the mat to block the confirmation of judges who would allow them a say. And given the incompatibility of Roe with a properly restrained view of the enterprise of judging, Specter's test would eliminate justices who are conservative on other issues as well.
It follows that Arlen Specter should not be elevated to the chairmanship of the Senate Judiciary Committee. We know that the Senate is a clubby place, and that its Republican members will be loathe to disregard Specter's seniority. But Senate custom should be disregarded in this instance. Specter's litmus-test attitude (after pressure on Thursday, he backtracked, in a statement, saying he has no litmus test but we know him too well to take the chance) is wrong in principle, because it demands that judges pledge fealty to an anti-constitutional decision. For the social conservatives who just elected Republicans to office for the very purpose of getting sound judges confirmed, Specter's elevation would not just be a symbolic slap in the face but an actual betrayal. Find the man another sinecure.