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Specter: In the Cat Bird Seat

August 08, 2005

by Dr. G. Terry Madonna and Dr. Michael Young

Judge John Roberts’s nomination to the Supreme Court is the first in eleven years. Not since 1994 has a vacancy occurred. Nor despite intense speculation does anyone know for sure when another might occur.

For Supreme Court aficionados, it’s been a long wait. And probably nobody has been waiting longer than Pennsylvania’s Senator Arlen Specter. As Chair of the Judiciary Committee, Specter now has become the pivotal man in the Roberts nomination. In a real sense, Specter has labored his entire career for this moment in political time. At last, Arlen is in the catbird seat.

Specter’s role in prior Supreme Court nominations is now the stuff of legend, and certainly controversial. He has participated in the confirmations of eight of the nine sitting members of the Court, and his influence in two of them--Robert Bork and Clarence Thomas--has been seen as dispositive: in the case of Bork leading the charge to defeat him while in Thomas’s case helping to confirm him. The Judiciary Committee voted Bork out 9-to-5 with a negative recommendation. Specter was the only Republican to cast a negative vote. In the Thomas case, Specter’s interrogation of Anita Hill, the star witness against Thomas, provoked a feminist firestorm that almost cost him his seat the following year.

So, Specter has been there before, but this time he finds himself playing a very different role. Judiciary committees have enormous influence over the fate of nominees; Specter, as Chair, significantly will determine how that influence is exercised. His ultimate influence in the Roberts nomination will become clearer as the hearings unfold, but his earlier performances provide some fascinating clues as to his thinking and how he might act in his new role as Chairman of the Committee.

The clock has been Specter’s special concern; the pace of hearings and time allotted concern him. Repeatedly in past nomination hearings, the Senator has groused about insufficient time to interrogate nominees. During the Bork nomination, he opposed the time limit imposed on him --pointedly complaining at one point that he wanted to question Bork, as he put it, "until he was done."

The Anita Hill interrogation similarly elicited complaints from Specter about time, specifically when he was asked--with only 24 hours notice--to interrogate Hill in the Thomas confirmation. Again Specter wanted more time, especially after Hill amplified and expanded the allegations against Thomas. Specter’s abiding principle in hearings seems to be that thoroughness and detail trumps political expediency. One implication is that in the Roberts confirmation, he likely will be responsive to requests from other senators seeking more information and more time.

A central concern is the debate over what questions the nominee will be required to answer--or what information should be provided to the committee. Questions that a nominee answers--or fails to answer--can determine whether a nomination sails through or hits heavy water.

Whatever questions are asked--and senators may ask what they want-- a nominee is free to answer only what he must to get confirmed. Since Bork, nominees have been coached to weigh carefully what they say and how they answer Senators questions.

Democrats on the committee plan to press Roberts for specifics over privacy rights, the first amendment, and the commerce clause--just to mention three contentious areas. So far, some 75,000 documents have been forwarded to the Committee but Democrats want more. And they just don’t want more documents; they want the nominee to discuss his views on major issues, such as abortion, civil rights, environmental issues.

Specter is likely to walk the judicial tightrope in this debate; he has long supported getting a sense of a nominee’s judicial philosophy without having the nominee explain how he/she would respond to a specific case. He believes that the President should have wide discretion in judicial appointments and that no litmus test should exist for confirmation.

Might Specter oppose Roberts’s nomination? That seems very unlikely.

Specter has voted against only one (Bork) of eight nominees who came before the Senate since he was first elected in 1980. Specter voted against Bork, convinced that his judicial reasoning was "outside the historical continuum." Robert’s reasoning clearly is not.

If he can vote for Scalia and Thomas, he can vote for Roberts: even if, as he put it in a recent New York Times editorial, the Roberts nomination " has extraordinary significance because he will replace Justice Sandra Day O’Connor who has been the decisive vote in many …cutting edge … issues."

Moreover, Roberts went a long way towards getting Specter’s vote when the nominee eased the Senator’s concern over "stability": translation, no radical departure from the status quo. Roberts has also assured him that he would respect congressional action and precedent.

Still, there is at least one aspect of Specter’s philosophy not widely understood. In his memoir Passion for Truth, Specter said Bork did the nation an enormous service by discussing his judiciary philosophy. No nominee before or since has been more forthcoming on judicial philosophy. Specter would like this Bork "precedent" to be the rule, but he is surely not going to hold Roberts to that standard.

Nevertheless, the White House can be excused if it sits on pins and needles with Specter in charge of the Committee; the Senator’s proclivity for independence is well known. Specter can be prickly; and he can be unpredictable. Certainly, he will never be the advocate for whom the White House might hope. Instead, look for him to act as referee, insisting that the hearing ground rules be fair and impartially carried out.

In the end, the Roberts nomination may lack the biting melodrama of some of Specter’s earlier confirmation battles; indeed, compared to them, Roberts may be a sleepy affair. But Pennsylvania’s senior senator has waited a long time for this moment. He’s not going to miss a second of it.

Politically Uncorrected™ is published twice monthly. Dr. G. Terry Madonna is a Professor of Public Affairs at Franklin & Marshall College, and Dr. Michael Young is a former Professor of Politics and Public Affairs at Penn State University and Managing Partner at Michael Young Strategic Research. The opinions expressed in this article are solely those of the authors and do not necessarily reflect the opinions of any institution or organization with which they are affiliated. This article may be used in whole or part only with appropriate attribution. Copyright © 2005 Terry Madonna and Michael Young.