Chairman Specter Fallout

WASHINGTON — Prolife activists lament that pro-abortion Sen. Arlen Specter, R-Pa., will be chairman of the Senate Judiciary Committee in the crucial years ahead. But some Washington prolife activists see a silver lining in their failed attempt to block him from the chairmanship of the important committee.

Although a short-term loss for pro-life groups, the effort might have yielded consequences that could be crucial to judges who uphold the right to life making it to the Supreme Court.

Specter's comments the day after winning re-election to his fifth term, which were read as a warning to President Bush against naming pro-life nominees to the U.S. Supreme Court, set off a media and Internet firestorm leading to tens of thousands of phone calls from pro-family grass-roots organizations to Republican senators on the Judiciary Committee and in the party leadership.

Two weeks after the comments, Specter met with the key senators, and the pro-lifers forced him to make a public statement of support for Bush judges and, most striking, support for a bold change to the Senate rules — one that could clear the way for Bush's nominees by effectively disarming the filibuster in confirmation battles.

In this light, Sen. John Cornyn, R-Texas, a pro-lifer, called Specter's controversial comments “a gift” because they focused attention and criticism on Specter, forcing him to pledge allegiance to Bush judges and push a dramatic rules change that could lower the effective threshold for confirming judges to 51 senators, down from the current 60.

To win the support of his Judiciary Committee colleagues, necessary for becoming chairman, Specter was forced to issue a public statement, which began, “I have not and would not use a litmus test to deny confirmation to pro-life nominees.”

Specter's statement stops short of promising to vote for all Bush court nominees, but it does pledge a quick up-or-down vote in the committee. That would save Bush's nominees from the fate many encountered in the Senate when Senate Democrats held a one-vote majority in the 107th Congress and Bush's nominees were being held up indefinitely by the committee chairman.

Most notably, Specter said, “If a rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rule changes with 51 votes.”

Cornyn explained that this left open many options, including a straightforward change to Senate rules (which itself would take 60 votes) or simply a ruling from the president pro tempore of the Senate, Sen. Ted Stevens, R-Alaska, that the 60-vote threshold for presidential nominees was unconstitutional.

Because of the boldness of the latter idea — one of the tactics dubbed a “nuclear option” — few senators want to be seen as sponsoring it. Specter, however, might have no choice after his Nov. 3 comments in which he called Roe “inviolate,” compared it to the 1954 anti-segregation ruling Brown v. Board of Education and said confirmation of anti-Roe judges “would be unlikely.”

One pro-family activist called the Nov. 3 comments “a marketing opportunity,” saying that Specter was unfit for the chairmanship because of his entire record in the Senate. Most notably, Specter claims credit for sinking President Ronald Reagan's nomination of Robert Bork to the Supreme Court. In his memoirs regarding that episode, Specter cites concern for the “balance” of the court and Bork's rejection of the Constitution as a “living, growing document.”

Instead of Bork, Anthony Kennedy was named to the high court, and Kennedy was the deciding vote in favor of preserving Roe in the 1992 Planned Parenthood v. Casey decision. Accordingly, Specter has been labeled “the man who saved Roe.” Specter has also voted many times for a Senate resolution asserting Roe was correctly decided and ought not be overturned.

Specter's chairmanship victory was all but clinched by the unanimous vote by Judiciary Committee Republicans on Nov. 18. All 55 Republican senators must still vote it on when the new Congress convenes in January.

The victory was disheartening to many.

Retired pro-life Notre Dame law professor Charles Rice said of Republican senators: “What they did with Specter is despicable. I think Bork is right; this guy can't be trusted.”

Pro-life blogger Mike Krempasky ran NotSpecter.com for two weeks, generating thousands of faxes, phone calls and petition signatures. Krempasky said the battle was worth fighting and will yield good results. Beyond Specter's pledges to clear the way for Bush's nominees, this was a good trial run for the big battles — the confirmation fights.

“On any court nomination fight, if we wait for the vacancy before we start moving, then we're too late,” Krempasky said, explaining that because of the Specter battle, he has gathered the names, e-mail addresses and zip codes of 25,000 people who care deeply about the courts. The need for early mobilization is “one lesson from the Bork fight,” he said.

The nuclear option might be critical, at least as a bargaining chip, for Bush's nominees to make it to the high court. In 2003, Democrats dug in their heels when they mounted an unprecedented filibuster against Bush court picks, refusing to allow floor debate to end and blocking GOP cloture motions (cloture ends debate automatically, but the motion requires 60 votes).

There is some hope no drastic moves will be required because some Democratic senators will drop support for use of the filibuster. In an April 7, 2003, memo to Sen. Ted Kennedy, D-Mass., a staffer wrote, “We have heard that several Democratic senators have expressed concern about any filibuster of a judicial nominee based on substance, as opposed to process.” That memo listed 15 Democrats, 11 of whom are still in the Senate. With unanimous Republican support, a Bush pick would need only five Democrats in order to break a filibuster.

Cornyn's not holding his breath. “I don't think we can rely on our adversaries across the aisle dropping their weapons,” he said. But if Specter is willing to loudly call for a nuclear option, Republicans can possibly “negotiate from a position of strength,” Cornyn said, and secure Democratic support for a standard permanent rules change, limiting the ability of the minority to filibuster presidential appointments.

One former Senate staffer said Specter in private has long supported a rules change and the threat of the nuclear option. Specter is known as a “knife-fighter,” in the words of a top Senate staffer who has fought with and against him. His tactics in elections and in the Senate, most notably his cross-examination of Anita Hill in the confirmation hearings of Justice Clarence Thomas, have won him the name “Snarlin' Arlen.”

Notre Dame law professor Rice does not share the optimism. He believes if Specter gives enthusiastic support to Bush's nominees, it will be only because the nominees are more like Anthony Kennedy than like Thomas.

“The idea you'll get some hard-charging Supreme Court justice,” he said, “is fantasy.”

Timothy P. Carney writes from Washington, D.C.