Reagan's Specter Vision

The “Aspen Ideas Festival” is hardly a bastion of conservative thought. And sure enough, Sen. Arlen Specter (R-Pa.) got an Aspen idea after chatting at the Festival with a fellow speaker, Supreme Court Justice Stephen Breyer. Specter is convinced that Court precedent is on life support and Chief Justice John Roberts and Justice Samuel Alito are to blame. So Specter is going to investigate. reporter Carrie Budoff wrote on July 25 that “Specter 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 told Budoff that he will do his review “when he has a spare moment.”

Justice Breyer, a very nice man, is a member of the left wing of the Court.  He happens to think that the interpretive key to the U.S. Constitution resides somewhere in the European Union, Liberia or Outer Mongolia. For Breyer and Company, it's not the text of the Constitution or the intent of the men who wrote it that is Supreme—it's what the Supremes have said about it that matters most.

Specter concurs.  That's why, during their Senate Judiciary confirmation hearings, Specter tried in vain to extract promises from Roberts and Alito to uphold Court precedents, especially Roe v. Wade. Specter displayed visual aids referring to Roe as “super-duper precedent.” Both nominees rightly refused Specter's unsuitable solicitation, and promised instead to uphold the Constitution and give precedent its due regard.

So what's the point? Specter is up to his old tricks again, the likes of which he's been playing ever since Ronald Reagan was president. 

In his June 28, 1985 entry in The Reagan Diaries, President Reagan wrote:

Yesterday we lost in the Judiciary Committee, Brad Reynolds nomination (by me) to be the No. 3 man at Justice was rejected. They even refused to pass it out to the floor with a no pass recommendation because of their fear the whole Sen. Would do what they were unwilling to do—approve him. & they couldn't have done what they did without the help of 2 Repubs. Sens. Specter & Mathias. Well, there are 2 Sens. I won't have to help campaign.

Specter's ultimate betrayal was leading the opposition to Reagan's Supreme Court nominee, Judge Robert H. Bork. The Oct. 1, 1987 Diaries entry reads: “It seems Specter has announced he's against Bork—things look bad.” On Oct. 9, 1987, Reagan wrote: “Senator Specter has 2 candidates for Fed. Judgeships—after his performance I'll not reward him for his no vote on Bork.”

That brings us to Jan. 7, 1999 in the U.S. Senate Chamber. Chief Justice William H. Rehnquist raised his right hand to take the oath to preside over the impeachment trial of President William Jefferson Clinton.

Rehnquist then asked all 100 senators to raise their right hand as he administered the same oath: “I solemnly swear that in all things appertaining to the trial of the impeachment of President Bill Clinton, now pending, I will do impartial justice according to the Constitution and laws: So help me God.” One by one, each senator was called up to sign the oath book, including Arlen Specter of Pennsylvania.

On Feb. 12, 1999, Senators cast their votes on the two count indictment for perjury and obstruction of justice. The vote on perjury was 55 guilty and 45 not guilty. On obstruction it was 50-50.

Specter had already announced on Feb. 10 his preferred vote of “not proved” and his reasoning:

“Absent the proof that I find necessary to justify the removal of a president, I will vote to acquit on both articles.” Specter cited Scottish law, saying there could be “three possible verdicts: guilty, not guilty, not proved. Given the option in this trial, I suspect many senators would choose 'not proved' instead of 'not guilty.'”

It would be worth his time for Specter to review some opinions written by Roberts and Alito. He might learn that precedent is not on a par with the Constitution and also disabuse himself of his baseless concerns about two brilliant jurists whose commitment to the Constitution is beyond question.  And if he'd asked, Roberts and Alito could have explained to him that “not guilty” means “not proved” under U.S. law. 

Specter should then explain what he was doing dabbling in Scottish law.  And he might explain why he shouldn't be removed from office for failing to fulfill the oath he swore to “do justice according to the Constitution and laws.”

Arlen Specter shouldn't be sitting in judgment of great judges like Bork, Roberts and Alito. With his history of liberalism and betrayal of Republicans, the GOP shouldn't have rewarded him with the chairmanship of the Judiciary Committee.  The Gipper knew better.

Jan LaRue is a member of the Board of Advisors of the Culture and Media Institute.