SPECTER DEFENDERS:
VOLOKH
A number of readers have taken me to task for Specter-bashing. There are two basic arguments. First, it is better to have a sure-winning Specter Republican, rather than to nominate a conservative who might have lost and turned the seat over to the Dems. Rather than belabor my response, I will incorporate by reference the compelling argument of Timothy Carney from NRO on this point. Carney poses the question--even if we assume that Toomey would have lost, would Republicans be better off with only 54 Republicans in the Senate and John Kyl as Judiciary Chairman, as opposed to 55 and Specter? In addition, given that Sen. Specter failed to help the President carry Pennsylvania, and refused to campaign with either VP Cheney or on behalf of Pennsylvania Republican House candidates, what good is he to the party? I realize this is Monday-morning quarterbacking because it wasn't clear that the Republicans would end up with 55 seats, but he obviously has a point.
Second, it is said that Sen. Specter can provide "cover" to get conservatives confirmed in the Senate. Well, you know what, I would like to see one single case where Pat Leahy said, "Yeah, let's confirm this guy because Arlen says it is ok." Or, "Let's drop the filibuster because ol' Arlen vouches for this guy as a moderate and we can trust Arlen." I find it hard to believe that Sen. Schumer tells the head of NARAL, "Well, I know you oppose this judicial nominee, but Sen. Specter supports him, and that's good enough for me." The idea that Specter can provide "cover" for conservatives to get confirmed just seems hopelessly naive to me given the nature of the current judicial confirmation process. The current process has become a zero-sum war, and neither side cares a whit about what anyone on the other side thinks about a nominee.
To me, the calculus seems more like this--in every judicial nomination, the Democrats try to peel off one of the liberal Republicans (such as Sen. Specter, Chafee, or Snowe). If they can, then that kills the nominee. If they can't, then they simply see if they have the brute force to try to kill the nominee on their own through a filibuster. And if they can't, then they let the nominee go through. So Democrats do not defer to Sen. Specter's ideological appraisal of a candidate at all, just to whether or not they can deliver the votes they need to stop a nominee. I see nothing in this dynamic to suggest that the Democrats or anyone else defer to Sen. Specter and simply assume that a judicial candidate is "moderate" just because Sen. Specter supports her or characterizes her as a moderate. It seems like a silly and unrealistic model of the judicial process to think that Sen. Specter will somehow help conservative judges to be confirmed.
So it seems to me that Sen. Specter's role in the confirmation process simply provides cover for Democrats to kill nominees that Sen. Specter may oppose, while providing absolutely no cover for conservative nominees who he may support. |
