- The Washington Times - Monday, November 15, 2004

Sen. Arlen Specter has not earned elevation to the chairmanship of the Senate Judiciary Committee. It will stand at the commanding heights of the Republican Party agenda during President George W. Bush’s second term. Three major tasks will confront the chairman: confirming Supreme Court nominees; ending unconstitutional filibusters that thwart judicial confirmations by simple majorities; and, passing legislation to strengthen the president’s power to wage war against global terrorism. In all these respects, Mr. Specter is not the superior choice. The chairmanship should crown a senator whose loyalties to the Republican Party mainstream are unwavering and enthusiastic.

Mr. Specter’s seniority on the Judiciary Committee does not establish a legal or moral right to the chairmanship during the forthcoming Congress. Senate Republicans could extend the term of incumbent chairman, Sen. Orrin Hatch, Utah Republican, for two years. Mr. Specter, Pennsylvania Republican, might also be bypassed by Republicans sitting on the Judiciary Committee or by the 55-member Senate Republican conference. The four Republican seats gained Nov. 2 plus Mr. Specter’s narrow primary election victory over conservative Rep. Pat Toomey shows that the Pennsylvania solon is more the caboose than the locomotive of the Republican Party train. His views on abortion, racial or ethnic preferences, church-state relations, the Patriot Act and presidential war powers clash with majority Republican Party thinking and central themes of President Bush’s campaign. To reward Mr. Specter with the chairmanship of the Judiciary Committee would dishonor the sentiments of the American people voiced through the ballot box.

President Bush has pledged to appoint Supreme Court Justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas. Mr. Specter adamantly opposed the confirmation of President Ronald Reagan’s Supreme Court nominee, Judge Robert H. Bork, who was both a philosophical model for Justices Scalia and Thomas and the most intellectually dazzling candidate since the appointment of Chief Justice Charles Evans Hughes in 1930. Judge Bork and Justice Scalia voted virtually identically in approximately 400 cases when sitting as judges on the United States Court of Appeals for the District of Columbia Circuit. Mr. Specter has enjoyed 17 years to voice repentance or regret over his role in defeating Judge Bork. But he has not retracted anything he said or did against the nominee, who fit President Bush’s ideal justice like a glove. Even if Mr. Specter desisted from opposing Bork-like nominees, he would neglect to champion their confirmations as Judiciary Committee chairman through effusive praise, the selection and timing of witnesses at televised hearings, or by arm twisting ala Lyndon B. Johnson.

The importance of a single Supreme Court appointment cannot be overstated. If Judge Bork had been confirmed in 1987 instead of Antony Kennedy to fill the vacancy created by the retirement of Associate Justice Lewis Powell, constitutional law in 2004 would reflect more the original meaning of the Founding Fathers and less the intellectual fads of the media and academic elites.

Senate Democrats have brandished a filibuster rule to block votes on 10 of President Bush’s nominees to federal appeals courts. The rule requires 60 votes to break the delaying tactic, thus permitting a minority to circumvent the simple majority confirmation standard enshrined in the Constitution. During President Bush’s first term, Republican senators shied from challenging the filibuster’s constitutionality as applied to judicial confirmations. They commanded but 51 votes and were unable to close ranks behind a parliamentary ruling holding the filibuster rule unconstitutional and unenforceable to frustrate the will of a simple majority in favor of confirming a federal judge.

The November balloting, however, has fortified the Senate dynamics against the expected attempt of 44 Senate Democrats and one Independent to filibuster President Bush’s Supreme Court nominees. Added to the Republican ranks in the new Congress will be four senators firmly opposed to the filibuster. Senate Majority Leader Bill Frist.,Tennessee Republican, recently warned Democrats that filibustering judicial nominees will no longer be tolerated as de rigueur. The Judiciary Committee chairman will be instrumental in fashioning the strategy and constitutional reasoning to achieve the majority leader’s ambition. Yet Mr. Specter has never either publicly assailed the constitutionality of the Democrat filibustering of federal judges or expressed an eagerness to assemble a Senate majority to attack its constitutional footing. Republican Party leadership should be made of sterner stuff.

A handful of judicial decisions have handcuffed President Bush in defeating global terrorism. Federal statutes have been interpreted to empower Guantanamo Bay enemy alien detainees to challenge their detention through independent attorneys in federal courts; and, to prohibit the use of military commissions for the trials of enemy aliens accused of war crimes. Urgently needed is legislation to overcome these follies, and a Senate Judiciary Committee chairman to carry the torch. To speak euphemistically, Mr. Specter has not hymned for greater presidential war powers, and would be an unlikely candidate to sponsor the statutes to correct the judicial stumbles.

To elect him as chairman would signal obtuse Republican Party irresolution over their latest democratic victories.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group.

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