The Specter Factor
Yesterday, Senator Arlen Specter announced he was supporting President Bush’s nomination of Judge Roberts as Chief Justice. The question of why Specter supports the Roberts nomination is crucial in determining whom the White House will select to replace Justice O’Connor.
Specter, when he gratitiously assumed the chairmanship of the Senate Judiciary Committee, informed Bush that he would block (not support) judicial nominees that were in his view too conservative. Moreover, he warned that judges who wanted to overturn Roe would receive a not-so-welcome reception.
Roe plays the central role in Specter’s judicial nominee analysis. In his comments on the Senate floor, Specter stated the following:
When it came to the critical question of Roe v. Wade, I did not ask him whether he would affirm or reject the Roe doctrine. I did not do so because I believe it is inappropriate to ask a nominee how he would decide a specific case.
As chairman, it was my view that any member could ask the nominee any question that the member chose to, and the nominee would be free to respond as he chose. Beyond refraining from specifically asking whether he would affirm or overrule Roe v. Wade, others and I questioned him extensively about the import of stare decisis, the Latin term meaning “let the decision stand.'’ He emphasized that stare decisis was a very important principle in the law and that even where a justice might consider Roe wrongly decided, it takes more to overturn a precedent than simply to conclude it was wrongly decided initially. Because–and this is Arlen Specter speaking, not Judge Roberts–where the case has stood for some 32 years and has been reaffirmed most emphatically in Casey v. Planned Parenthood, it has become, as some have called it, a super precedent.
I then made the point that the Supreme Court had taken up the issue so that Roe could have been reversed, overruled on some 38 occasions. Should it come before the Court again, perhaps the balance of the 38 cases would make super-duper precedent to uphold Roe.
If Judge Roberts’s view on abortion/Roe is the “critical question” and Roe has reached “super-duper” Specter-status, (Shouldn’t the words “super-duper” be reserved exclusively for cartoon characters like Scooby Doo?) then Specter has reaffirmed his earlier stance–that Roe is sacrosanct, and that any Supreme Court nominee who doesn’t believe in Roe as a super-duper precedent will get the political finger from Specter.
President Bush took a gamble in supporting Specter’s chairmanship. Now, how will he roll the dice with O’Connor’s replacement? Most conservatives are happy with the Roberts pick, however, there definitely are some legitmate questions on how he will rule on moral issues like same-sex marriage and partial-birth abortion. Also, most conservatives (myself included) would prefer O’Connor’s replacement to be someone in the mold of Scalia and Thomas that is verifiable and proven, like Judge Michael Luttig.
Will Bush risk upseting Specter and nominate a true, principled conservative without the cloak of Roberts? The Supreme Court is in dire need of a transformation from its activist and internationalist charades. Specter should not be in a position to block such a nomination and Bush will have to dig deep to overcome Specter’s carping if he nominates someone like Luttig. However, the conservative base would be overjoyous to support such a nominee and would be willing to take off the gloves and fight for the nomination’s success. Conservatives won the election for Bush. Now, Mr. President, it’s time for payback. Please nominate a conservative to replace Justice O’Connor. Specter and his amorous relationship with Roe and her precedents should not stop a true, verifiable conservative, from sitting on the Court next to Scalia, Thomas, and yes Chief Justice Roberts.