- The Washington Times - Tuesday, November 9, 2004

President Bush had barely finished celebrating his election victory when Sen. Arlen Specter of Pennsylvania fired a shot across his bow, warning the president not to send judicial nominees before the Senate Judiciary Committee to be confirmed if they were the kinds of judges who might restrict the right to an abortion.

More is involved here than just one headstrong senator with his own policy litmus test.

After more than a half-century of escalating judicial activism — judges imposing their own beliefs instead of applying the law — our country is at a crossroads. There is an opportunity — one that may not come again in this generation — to make judicial appointments that will restore the rule of law.

The issue is not whether judges will impose liberal policies or conservative policies. The larger issue is whether they will destroy the voting public’s control over their own destiny. Too many generations of Americans have fought and died to preserve the right of democratic self-governance to let judges continue to erode that right and become judicial dictators.

Expressions of outrage from many quarters have caused such an uproar over Mr. Specter’s statements that some have questioned whether he should become chairman of the Senate Judiciary Committee, as he would by seniority in January. These outcries have led the senator to backpedal from his statements, no doubt to try to save his prospects of becoming committee chairman.

The real question is not what Mr. Specter says now but what he would do as chairman of this key committee that reviews judicial nominees during the confirmation process. That committee has become a place for character assassination of judicial nominees who believe in adhering to the written law.

The key turning point was the nomination of Judge Robert Bork to the Supreme Court in 1987 and the massive smear campaign against him. No nominee to that court ever was more qualified than Judge Bork, but Mr. Specter voted against him.

At one crucial point, Sen. Pat Leahy took a cheap shot at Judge Bork by saying he had earned large consulting fees in some years when he was a law professor, as if that were something dishonorable. What was not revealed to the public was that those were years in which Professor Bork’s wife was mortally ill and he needed that money to do all that he could for her.

Judge Bork was obviously deeply distressed by having that painful period in his personal life dragged into the political arena and his actions then twisted and distorted beyond recognition. When Judge Bork rested his head in his hands and covered his eyes, Judiciary Committee chairman Joseph Biden — to his credit — called a recess.

But, when it was proposed to end the hearings for the day, Arlen Specter refused to agree. He wasn’t prepared to wait to get his shots in against Judge Bork. Mr. Specter’s agenda was more important to him than common decency.

As the hearings went on, it became clear that Mr. Specter’s agenda was also more important to him than the Constitution’s separation of powers, for the senator was clearly assessing Judge Bork not on his high qualifications but on whether he was likely to uphold policies Mr. Specter approved.

He demanded to know “where’s the predictability in Judge Bork?” He asked: “Where’s the assurances for this committee and the Senate of where you’ll be?”

Judges in general, and justices of the Supreme court in particular, are supposed to be impartial and independent in judging the specific merits of whatever cases arise — not predictable. What does the separation of powers mean if one branch of government can prescribe in advance what members of another branch of government must do on specific issues?

Then and now, Mr. Specter has been one of those to whom what matters is not a judicial nominee’s qualifications but how they are likely to vote on abortion, antitrust laws or whatever.

Mr. Specter is also one of those people who are often wrong but never in doubt. He has mangled the meaning of such basic concepts as “judicial activism” and “original intent.” It would be a tragedy for him to become chairman of the Senate Judiciary Committee, where he could mangle nominees, and in the process mangle the Constitution of the United States.

Thomas Sowell is a nationally syndicated columnist.

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