Arlen Specter Stumbles into Dream Role as Judiciary Committee Chairman
And vows no litmus test on Roe v. Wade
The 2004 elections gave George W. Bush a second presidential term and a 55-seat Republican majority in the Senate. But one big concern that many conservatives had was that, pursuant to Senate Republican term limits on committee chairs, Arlen Specter was lined up to succeed Orrin Hatch as Judiciary Committee chairman.
Specter had earned the intense wrath of many conservatives when he voted against the Supreme Court nomination of Robert Bork in 1987 and grandstanded in the New York Times that he had serious doubts whether Bork’s views were “within the tradition of our constitutional jurisprudence.” His very effective cross-examination of Anita Hill four years later during Clarence Thomas’s confirmation hearing did little to repair the breach.
In 2005, Specter would be one of only a few liberal or moderate-liberal Republicans in the Senate, and he would be well to the left of all the other Republicans on the Judiciary Committee. Specter had long been vocal in his support for Roe v. Wade in particular. Did it make sense for other Republicans to confer the powerful committee chairmanship on him at the very time that conservatives would be aiming to confirm to the Supreme Court and the lower courts nominees who would regard Roe as a lawless exercise of judicial activism?
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By his own account, Specter had a “lifelong ambition to be chairman of the Judiciary Committee.” (I quote here and elsewhere from Never Give In, Specter’s 2009 memoir of his valiant battle against Hodgkin’s disease.) He had served on the committee during all 24 of his years in the Senate, and he was eager to fulfill his career dream.
After a bruising primary campaign against conservative challenger Pat Toomey, Specter had comfortably defeated his Democratic opponent in the general election in November 2004. But the morning after the election, Specter ignited a firestorm, as he seemed to signal that he would oppose a Supreme Court nominee who did not accept Roe as “inviolate” precedent.
A reporter asked Specter: “Mr. Bush, he just won the election, even with the popular vote as well. If he wants anti-abortion judges up there, you are caught in the middle of it, what are you going to do?”
Specter replied:
When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely. And I have said that bluntly during the course of the campaign and before. When the Inquirer endorsed me, they quoted my statement that Roe v. Wade was inviolate. And that 1973 decision, which has been in effect now for 33 [sic] years, was buttressed by the 1992 decision [Planned Parenthood v. Casey], written by three Republican justices—O’Connor, Souter, and Kennedy—and nobody can doubt Anthony Kennedy’s conservativism or pro-life position, but that’s the fabric of the country. Nobody can be confirmed today who didn’t agree with Brown v. Board of Education on integration, and I believe that while you traditionally do not ask a nominee how they’re going to decide a specific case, there’s a doctrine and a fancy label term, stare decisis: precedent, which I think protects that issue. That is my view, now, before, and always.
The reporter followed up: “You are saying the President should not bother or make the move to send somebody up there who is clearly anti-abortion?”
Specter responded:
I don’t want to prejudge what the President is going to do. But the President is well aware of what happened when a number of his nominees were sent up, with the filibuster, and the President has said he is not going to impose a litmus test, he faced that issue squarely in the third debate and I would not expect the President, I would expect the President to be mindful of the considerations that I mentioned.
Specter says that his comments “seemed innocuous to me at the time.” But that’s understandably not how the media saw it:
The next day, however, I received an urgent message from Senator Santorum’s office as Joan and I were traveling in Chicago: The Associated Press had just run a story entitled “Likely New Senate Judiciary Chairman Warns Bush Against Nominating Anti-abortion Judges,” which The Washington Post reprinted. I spoke with Senator Santorum, and he was highly agitated. He urged me to clarify the matter by making a prompt statement that I did not have a litmus test against pro-life judicial nominees. I was glad to do so since this was true, and well supported by my record.
Specter’s “clarifying statement that day actually reiterated what [he] had said on numerous prior occasions”:
I have supported every one of President Bush’s nominees in the Judiciary Committee and on the Senate floor. I have never and would never apply any litmus test on the abortion issue and, as the record shows, I have voted to confirm Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy [ditto on Justice Scalia] and led the fight to confirm Justice Thomas.
But Specter was “unable to stop the maelstrom”:
The headlines the next day said it all: “Despite G.O.P. Gain, Fight Over Judges Remains” (New York Times); “Specter Denies Warning Bush Over Court Nominees” (Washington Post); “Judicial Remarks Stir Conservatives” (Los Angeles Times); “Dobson Blasts Senator Specter’s ‘Arrogant Grandstanding’; Focus Action Founder Says Republican is Wrong to Threaten Bush Over Nominees” (Associated Press); “Key Senator Denies Warning Bush on Abortion Issue” (Reuters); and “Specter: His Abortion Remark Puts Panel Leadership at Risk” (Philadelphia Inquirer).
As conservative activists rallied against him, Specter quickly consolidated support among conservative Republicans on the committee. Two weeks after Election Day, Specter publicly stated, “I have no reason to believe that I’ll be unable to support any individual President Bush finds worthy of nomination” to the Supreme Court.” That same day, committee Republicans unanimously affirmed their support for Specter as chairman.
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Whether or not he was acting in response to the criticism that he had received, Specter displayed in his early actions as chairman that he understood that he had a responsibility to his much more conservative colleagues that superseded his own political preferences.
Specter hired strong conservative lawyers to staff him on committee. His chief counsel, Michael O’Neill, was a former law clerk to Justice Thomas (and a friend and colleague of mine from our time together on Hatch’s staff a decade earlier). Two other hires, including a former president of Harvard law school’s Federalist Society chapter, came straight from political positions in the Bush administration, and a third had written a law-review article that excoriated Roe.
President Bush’s nomination of William H. Pryor Jr. to the Eleventh Circuit gave Specter a fresh opportunity to demonstrate that he had no litmus test on Roe. At his confirmation hearing in 2003, Pryor stood by his blunt description of Roe as the “worst abomination in the history of constitutional law.” Specter’s longtime friend and confidant, Third Circuit judge Edward Becker, weighed in with Specter in support of Pryor and advised him that getting Pryor confirmed would protect his chairmanship. In May 2005, Specter voted to report Pryor’s nomination to the Senate floor, and in June he voted in support of Pryor’s successful confirmation.
Specter would soon have the opportunity to prove himself as chairman on not just one, but two, Supreme Court vacancies. And Judge Becker, “whose knowledge of the federal judiciary was encyclopedic” (Specter’s quote) and who had very high regard for his Third Circuit colleague Samuel Alito, would again provide him valuable counsel.