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Roberts hearings and ole' Arlen

Well, today the Senate Judiciary Committee is set to begin its hearings on the nomination of John Roberts for Chief Justice of the United States. For more insights, see the many musings of Professors Richard Epstein and Stephen Presser here, as well as the thoughts of the rest of us here. For umpteen newspaper articles and columns, see Howard Bashman's citations here and here.

Sunday morning, Arlen Specter, father of trial lawyer Shanin Specter and chairman of the Senate Judiciary Committee, had the following interesting commentary on Meet the Press:

MR. RUSSERT: You wrote in your book, Senator, "Passion for Truth": "In my judgment, the Senate should resist, if not refuse, to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy but should be able to judge on the basis of the candidate's expressed views."

So if you ask John Roberts whether he views Roe vs. Wade as settled law or whether or not he views a right of privacy in the Constitution, if he doesn't answer those questions the way you find satisfactorily, would you vote against him?

SEN. SPECTER: Tim, the quotation from my book I stand by. It talks about views and philosophy. It does not talk about answering how he is going to decide a specific question. And with respect to Roe and a woman's right to choose, the way to get at it is what he thinks about precedents, whether he agrees with Justice John Marshall Harlan, that the Constitution is a living document, that it reflects the evolving values and standards of our society.

Just as some of the actions of the Bush administration make those of us with actual political principles cringe, such a firm statement of support for the notion of a "living" Constitution reflecting "the evolving values and standards of our society" from a Republican judiciary chair is enough to make me wonder what the party of Reagan has come to. It is worth noting that the "evolving standards of decency" language emanates not from Roe nor Casey, in neither of which the construction ever appears (unless you count Scalia's use of the phrase "the mind of a Court that believes the Constitution has an evolving meaning," 505 U.S. 833, 998-99, in his Casey dissent, as one of three examples of the majority's judicial philosophy that makes their reliance on "stand[ing] firm against public disapproval" an act "of almost czarist arrogance"). Rather, the phrase is adopted from the Court's jurisprudence on cruel and unusual punishment, dating from its 1958 decision in Trop v. Dulles finding it unconstitutional under the Eighth Amendment to revoke an army deserter's citizenship (which is itself a rather odd holding, to say the least). More recently, the language has been used to find the death penalty unconstitutional (on its face an odd finding for those with any adherence to the text or original meaning of the Constitution, given that the contemporaneously adopted Fifth Amendment references "capital crimes"), first outright in Furman v. Georgia in 1972, then after the Court reversed itself, in more limited exceptions like the recent decisions in Roper (juveniles) and Atkins (mentally retarded). Whatever the merits of these death penalty decisions--constitutionally and otherwise--it is worth noting that Senator Specter has introduced legislation to expand the death penalty, and he has voted for limitations on death penalty appeals.

It's also worth pointing out that Justice John Marshall Harlan, whom Specter invokes as epitomizing his vision for jurisprudence, was a dissenter in Trop v. Dulles, which used the "evolving standards" Eighth Amendment rationale. Specter is presumably relying on Harlan for his dissent in Poe v. Ullman and concurrence in Griswold v. Connecticut, where he eschews a strict "incorporationist" reading and argues that the Connecticut statute outlawing the advising about and dispensing of contraceptives to married couples is unconstitutional. Yet even here it is worth noting that Harlan substantially vests his opinions in "the intimacy of husband and wife [as] necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected," and that the prohibition of contraceptives as applied to marital couples "is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection." I.e., it is far from clear that Harlan would have extended his analysis to hold that contraceptives were also protected for non-married couples (as the Court did, on equal protection grounds, in 1972), or to abortion.

One really begins to wonder if Specter has any idea what he's talking about. That wondering only escalates as his interview continues:

MR. RUSSERT: Senator, are you suggesting that originalists or strict constructionalists are actually being activist judges by ignoring the will of Congress?


MR. RUSSERT: In what way? In what cases?

SEN. SPECTER: You'd like a little aberration, Tim? Well, let me back up to a point you started with earlier, where--the report is that I intend to ask probing questions, and that is true. I believe Republicans as well as Democrats have an obligation to find out about Judge Roberts' jurisprudence, and there ought not to be a political tilt. This is not an issue for Democrats or Republicans. These hearings in substantive fact, as well as perception, ought to be for all Americans.

Now, on to your central point. The Supreme Court of the United States declared part of the legislation unconstitutional to protect women against violence because they said, "they disagreed with Congress' method of reasoning." Well, I've been in the Senate for 25 years. I was a DA before that. We have a lot of very detailed factual hearings, and there's a real point of concern on my part when they say their method of reasoning is superior to ours.

And Arlen Specter is not the only guy to take them on. Justice Scalia did in dissent. He said that the Supreme Court has put in a "flabby test," and is acting as the taskmaster of Congress to see if Congress has done its homework. And Justice Scalia says it's ill-advised. And we have a very careful separation of power, and I'm fully behind a court having the last word. But I think that we've gone outside of the balance of power when they take a very extensive record, which we have created, and say it's insufficient because of our method of reasoning. And I intend to ask Judge Roberts what he thinks about all that.

Well, for those of us who know--and care about--the Supreme Court's federalist jurisprudence, Specter's blathering becomes almost as offensive and stupid as Senator Reid's ridiculous claim that Justice Thomas's opinions are "poorly written." The decision to which Senator Specter refers, United States v. Morrison, invalidated in substantial part the Violence Against Women Act as exceeding Congress's powers to regulate interstate commerce and enforce the Fourteenth Amendment's due process, equal protection, and privileges and immunities protections. The Court rejected the Fourteenth Amendment argument on its long-standing precedent that that Amendment applies only to state not private action. Chief Justice Rehnquist did discuss "petitioner's reasoning" in rejecting the interstate commerce argument--but in the context of arguing that sexual assault was not an economic activity, as would normally be the case for Congress's power to regulate interstate commerce, and that its actual relation to commerce and economic activity was so tenuous that were Congress to have the power to regulate here, it would subsume the state/national distinction altogether.

While Specter implies that Scalia agrees with him here, nothing could be further from the truth. Scalia joined with Chief Justice Rehnquist's decision in Morrison; he didn't dissent. Scalia did dissent and used the "flabby test" quote in a different case--Tennessee v. Lane --in which the majority upheld Title II of the Americans with Disabilities Act, applied against the states, under the Fourteenth Amendment. Scalia felt it was time to jettison the "congruence and proportionality" test and narrow Congress's power under the Fourteenth Amendment substantially--the precise opposite of the stance Specter seems to attribute him.

Arlen Specter is either intentionally misleading or woefully uninformed. His statements give little reason for confidence heading into today's hearings. I've basically decided that Paul Rosenzweig is right--we should scrap these silly show trials altogether. But I suppose we can take solace in the fact that John Roberts's skills as an oral advocate and knowledge of these cases will almost certainly enable him easily to handle the inane probing of Specter, Schumer, et al.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.