Arlen Specter's last little bit of Senatorial crazy

by: Paul Rosenberg

Mon Dec 27, 2010 at 09:00

Sen. Arlen Specter, the outgoing Pennsylvania Republican-turned-Democrat, directed a parting blow Tuesday to members of the Supreme Court's conservative bloc.

In his final speech on the Senate floor, Specter, the former GOP chairman of the Senate Judiciary Committee, chastised Chief Justice John Roberts and Justice Samuel Alito for "eroding the constitutional mandate of separation of powers."

"The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents," said Specter, who voted in favor of both Roberts and Alito when the Bush appointees came before his panel.

Specter specifically took issue with the court's controversial 5-4 decision early this year, in which it relaxed federally-imposed campaign finance regulations for corporations and unions.

"Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising - thus effectively undermining the basic Democratic principle of the power of one person, one vote," said Specter. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases." [Video at original.]

Roberts is perhaps the easiest case to explain:  His claim that he would be an "impartial umpire" who saw his job as "calling balls and strikes" was patently absurd from the very beginning, and anyone who took him seriously ought to have accused him of perjury right then and there. Why?  Because it's the job of District court judges to "call balls and strikes"--to decide cases that come before them based on settled law.  They are, above all, finders of fact.

On the other hand, Appellate judges are generally not finders of fact.  Their job is to almost always to defer to trial (District Court) judges on findings of fact, and instead to examine whether the law was properly applied--and when necessary to interpret or even re-interpret existing law as required by the case before them--but with attention to potential impacts on other cases as well.  Neither of these types of judicial activity is strictly speaking a matter of "calling balls and strike", though the first comes closer to it at a somewhat abstract level. But the second is nothing like it at all. It is more like setting judicial policy (or the strike zone, if you must) just as Sonia Sotomayor said, and that is what the Supreme Court--the highest Appellate Court of them all--is almost exclusively concerned with.  When senators kept babbling at Sotomayor about "balls and strikes", we were, in part, seeing Specter's failed leadership on display.

To explain a bit further, questions on appeal often take the form of asking how two or more different lines of precedential argument can be harmonized with one another.  It's not like "calling balls and strikes", it's like comparing apples and oranges, because different lines of precedent often have roots intertwining with very different bodies of law.  Still, apples and oranges are both fruit, and thus, not as impossible to compare as the saying suggests.  But they don't compare automatically in any sort of straightforward fashion, and a judges judicial philosophy is, in large measure, a reflection on how they tend to go about dealing with the challenging task of comparing judicial apples and oranges.

Roberts, in effect, was saying, "There are no oranges, just apples.  And comparing them is easy: it's just like calling balls and strikes."

And that, quite simply, is a lie.  Arlen Specter has been listening to such lies for a very, very long time, and giving them his stamp of approval as a particularly influential senator on judicial matters.  Now, all of a sudden, he pretends to just have noticed them, and to be very, very upset.

Shame on him.  He was a prime mover in putting Clarence Thomas on the Supreme Court, going so far as to accuse Anita Hill of perjury, and thus participating quite actively in deterring other corroborating witnesses from coming forward. Since Thomas's former girlfriend, Lillian McEwen, has now come forward with corroborating testimony about his obsession with porn and boorish behavior in general, it's now quite clear that Specter helped suppress unpleasant truths about Thomas from coming out. It's not just that he could not be bothered to actually get to the bottom of things--he was actively obstructionist. And this wasn't the only thing that Thomas lied under oath about. He also said he had never discussed Roe v. Wade (a subsequent conservative biographer latter found evidence that he had discussed Roe before, and thus had perjured himself in his Senate hearings.)  He also enthusiastically played along with Thomas's "Pinpoint Strategy"--an approach to the confirmation hearing that deliberately avoiding subjecting himself to the normal sort of inquiry into him as a judge, and instead relied on selling his story of being a Horatio Alger character, who in effect deserved a Supreme Court seat, because of his lowly beginnings. It was a palpably absurd argument, but the Senate centrists by and large bought it, and Specter was a leading light in making this happen.

He has, in short, no standing whatsoever to complain about what a circus the Senate confirmation process has become, and what strange menagerie of rullings the Supreme Court has passed as a result.  He, after all, has been one of the ringmasters for may long years now.  He's always been part of the problem, and never part of the solution.  This parting hissy fit changes nothing. Indeed, it only deepens the pompous hypocrisy that has always been Specter's trademark.