Advise and Repent
What some Senators learned from Tom DeLay.
Sunday, July 29, 2007 12:01 a.m. EDT
Welcome to Arlen Specter, the B side. One week after standing up for the nomination of Judge Leslie Southwick, a Bush appeals court nominee being stonewalled by Democrats, the mercurial Republican from Philadelphia has come up with a strange new quest.
On Tuesday, the Judiciary Committee's ranking Republican announced his plans to "review" the confirmation hearing testimony of Supreme Court Justices John Roberts and Samuel Alito to see how it matches their decisions on the bench. "There are things he has said, and I want to see how well he has complied with it," Senator Specter said of the Chief Justice, according to The Politico Web site.
They must be falling over at the American Bar Association. It's widely agreed that it would be unseemly and improper for a nominee to seek confirmation to the nation's highest Court by promising Senators how he or she would rule on a given issue on the bench. Yet Mr. Specter's statement suggests that he thinks he pocketed such promises from Justices Alito and Roberts, and he now wants to check to see if they've been kept.
Stranger still, Mr. Specter says he was inspired by a recent meeting with Supreme Court Justice Stephen Breyer in Aspen. The Clinton appointee made clear in his dissents last year that he disagrees with the direction of the Roberts Court. But Mr. Specter reported that Justice Breyer told him in Aspen that "there were eight" cases in which the Court had either overturned or undermined earlier precedents. We hope Justice Breyer isn't kibbitzing the Senate to inquire into why his views haven't prevailed with a majority of his colleagues on the Court. We'll wait for more explanation from Mr. Specter, but he's wading into questionable separation-of-powers territory here.
The Judiciary Committee could certainly find other uses for its time, with federal court vacancies piling up around the country. But the backlog of nominees waiting to get a hearing may be precisely the point. As Democratic Senator Dick Durbin put it, investigating the confirmation testimony of Justices Roberts and Alito "could lead us to a different approach" to future confirmation hearings. How so: Lie detector tests?
Mr. Specter's bugbear seems to be Supreme Court precedent, which he wants the new Justices to follow more rigorously. But while both Justices promised to take precedent seriously, neither one vowed to adhere to it in all cases. Facts differ from case to case. And this is precisely why judicial nominees refuse to predict how they would rule on topics--to prevent politicians from usurping the role of the judiciary and turning judges into Senators with robes.
Moreover, bad precedents are overturned all the time, often by majorities joined by Justice Breyer. When a narrow liberal majority was overturning precedents on the juvenile death penalty or gay rights in recent years, Mr. Specter showed no similar alarm. Plessy v. Ferguson was a 58-year old precedent before it was overturned in Brown v. Board, and we're grateful it was.
In any case, Mr. Specter's concern about the alleged radicalism of the new Justices is hard to take seriously. The Roberts Court has so far followed a path of incremental jurisprudence, issuing narrow opinions that have gone out of their way not to overturn precedents on abortion, school supervision and desegregation. The Chief Justice even ducked a ripe opportunity to overturn the Court's tortured 5-4 2003 ruling on the constitutionality of campaign finance reform laws in McConnell v. FEC.
Congress does have jurisdiction over the courts, including their funding and the size of judicial jurisdictions; it also have the power to impeach. Only a few years ago, former House Majority Leader Tom DeLay floated the impeachment idea for judges who weren't on "good behavior," and the Democratic outrage was thunderous. Former Justice Sandra Day O'Connor responded with a speech about the importance of judicial independence.
Somehow the Senate's plans for a political scrub of Justices Alito and Roberts haven't inspired the same indignation. But that doesn't mean they are any less of an exercise in political intimidation
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