Specter to Probe Supreme Court Decisions
Specter to Probe Supreme Court Decisions
By Carrie Budoff
The Politico
Wednesday 25 July 2007
Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of
U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito
to determine if their reversal of several long-standing opinions conflicts
with promises they made to senators to win confirmation.
Specter, who championed their confirmation, said Tuesday he will
personally re-examine the testimony to see if their actions in court match
what they told the Senate.
“There are things he has said, and I want to see how well he has
complied with it,” Specter said, singling out Roberts.
The Specter inquiry poses a potential political problem for the GOP
and future nominees because Democrats are increasingly complaining that the
Supreme Court moved quicker and more dramatically than advertised to
overturn or chip away at prior decisions.
Specter, the ranking Republican on the Judiciary Committee, who served
as chairman during the hearings, said he wants to examine whether Roberts
and Alito have “lived up” to their assurances that they would respect legal
precedents.
Judicial independence is “so important,” Specter said, but an
examination could help with future nominations. “I have done a lot of
analyzing and have come to the conclusion that these nominees answer just
as many questions as they have to.”
Senate Majority Whip Richard J. Durbin (D-Ill.), a Judiciary Committee
member who voted against both nominees, said a review “could lead us to
have a different approach.” He said senators need to be “more probing” with
their questioning of nominees.
“Certainly Justice Roberts left a distinct impression of his service
as chief justice. And his performance on the court since, I think, has been
in conflict with many of the statements he has made privately, as well as
to the committee,” said Durbin, who was unaware of Specter’s idea.
“They are off to a very disturbing start, these two new justices. I am
afraid before long they will call into question some of the most
established laws and precedents in our nation.”
The idea for a review came to Specter when he said he ran into Justice
Stephen G. Breyer at the Aspen Ideas Festival in Colorado.
Breyer, an appointee of President Bill Clinton, drew attention last
month for suggesting that Roberts and the conservative majority were
flouting stare decisis, the legal doctrine that, for the sake of stability,
courts should generally leave past decisions undisturbed.
“It is not often in the law that so few have so quickly changed so
much,” Breyer said, reading his dissent from the bench to a 5-4 ruling that
overturned school desegregation policies in two cities.
Roberts has defended his rulings as applications of “existing precedent.”
Specter, however, said Breyer’s statement was “an especially forceful
criticism of the Roberts court.”
“I only noticed it in a couple of cases,” Specter said of the court
overturning or undermining precedents. But Breyer, in their Aspen
conversation, said “there were eight.”
Those that have earned the most criticism from liberals were rulings
that struck down desegregation programs, upheld a federal law prohibiting
late-term abortions and weakened restrictions on broadcast ads during
campaigns.
“The reality is, although John Roberts and Samuel Alito promised to
follow precedent, they either explicitly or implicitly overruled
precedent,” said Erwin Chemerinsky, a Duke University law professor.
“It is important to point out how the confirmation hearings were a
sham. There is nothing you can do about it now; they are there for life.
But it is important as we look to future hearings.”
Conservatives such as Sen. Jeff Sessions (R-Ala.), a Judiciary
Committee member, have no complaints. “I don’t have any concerns about them
whatsoever,” Sessions said of Alito and Roberts.
Like other Republicans and many Democrats, Specter grilled the
nominees on their approach to precedent, often as a way to discern their
thoughts on Roe v. Wade, the 1973 Supreme Court ruling establishing
abortion rights.
And Specter repeatedly sought assurances that Roberts and Alito would
respect what the senator considered settled law.
Roberts said there would be instances that called for a
reconsideration of prior decisions. But, he added, “I do think that it is a
jolt to the legal system when you overrule a precedent. Precedent plays an
important role in promoting stability and evenhandedness.”
Alito called stare decisis “a very important doctrine,” although it
was not an “inexorable command.”
“I agree that, in every case in which there is a prior precedent, the
first issue is the issue of stare decisis,” Alito said. “And the
presumption is that the court will follow its prior precedents. There needs
to be a special justification for overruling a prior precedent.”
Before voting to confirm Roberts and Alito, Specter cited their
statements on precedent as reason enough to put them on the high court.
Sen. Joseph I. Lieberman (I-Conn.) said at the time that he, too,
found Roberts’ statements “reassuring” and voted to confirm him. He voted
against Alito.
“Oh, sure,” Lieberman said Tuesday when asked whether he is concerned
about the court’s treatment of precedent. “I am interested in what Arlen
has to say.”
Sen. Dianne Feinstein (D-Calif.) said the testimony from Roberts and
Alito was misleading in light of their rulings.
“I very much got the idea, the strong chain of reasoning, that they
had great respect for stare decisis and they didn’t want to be activist
judges,” said Feinstein, who voted against both nominees. “As you know,
some of these latest cases have pretty much shattered precedent.”
A review could put “judges on notice that they can’t come in front of
the Judiciary Committee, say one thing and leave one impression, and then
go out and do another,” she added.
Specter, who said he will do the review when he “gets a spare moment,”
would not go as far as Feinstein on whether he feels misled.
“Don’t put words in my mouth,” Specter said.