Specter to probe Supreme Court decisions
By: Carrie Budoff
July 25, 2007 10:50 AM EST
Sen. Arlen Specter (R-Pa.) 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, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.
"There are things he has said, and I want to see how well he has complied with it," Specter said, singling out Roberts.
The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions.
Specter, the ranking Republican on the Judiciary Committee, who served as chairman during the hearings, said he wants to examine whether Roberts and Alito have "lived up" to their assurances that they would respect legal precedents.
Judicial independence is "so important," Specter said, but an examination could help with future nominations. "I have done a lot of analyzing and have come to the conclusion that these nominees answer just as many questions as they have to."
Senate Majority Whip Richard J. Durbin (D-Ill.), a Judiciary Committee member who voted against both nominees, said a review "could lead us to have a different approach." He said senators need to be "more probing" with their questioning of nominees.
"Certainly Justice Roberts left a distinct impression of his service as chief justice. And his performance on the court since, I think, has been in conflict with many of the statements he has made privately, as well as to the committee," said Durbin, who was unaware of Specter's idea.
"They are off to a very disturbing start, these two new justices. I am afraid before long they will call into question some of the most established laws and precedents in our nation."
The idea for a review came to Specter when he said he ran into Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado.
Breyer, an appointee of President Bill Clinton, drew attention last month for suggesting that Roberts and the conservative majority were flouting stare decisis, the legal doctrine that, for the sake of stability, courts should generally leave past decisions undisturbed.
"It is not often in the law that so few have so quickly changed so much," Breyer said, reading his dissent from the bench to a 5-4 ruling that overturned school desegregation policies in two cities.
Roberts has defended his rulings as applications of "existing precedent."
Specter, however, said Breyer's statement was "an especially forceful criticism of the Roberts court."
"I only noticed it in a couple of cases," Specter said of the court overturning or undermining precedents. But Breyer, in their Aspen conversation, said "there were eight."
Those that have earned the most criticism from liberals were rulings that struck down desegregation programs, upheld a federal law prohibiting late-term abortions and weakened restrictions on broadcast ads during campaigns.
"The reality is, although John Roberts and Samuel Alito promised to follow precedent, they either explicitly or implicitly overruled precedent," said Erwin Chemerinsky, a Duke University law professor.
"It is important to point out how the confirmation hearings were a sham. There is nothing you can do about it now; they are there for life. But it is important as we look to future hearings."
Conservatives such as Sen. Jeff Sessions (R-Ala.), a Judiciary Committee member, have no complaints. "I don't have any concerns about them whatsoever," Sessions said of Alito and Roberts.
Like other Republicans and many Democrats, Specter grilled the nominees on their approach to precedent, often as a way to discern their thoughts on Roe v. Wade, the 1973 Supreme Court ruling establishing abortion rights.
And Specter repeatedly sought assurances that Roberts and Alito would respect what the senator considered settled law.
Roberts said there would be instances that called for a reconsideration of prior decisions. But, he added, "I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness."
Alito called stare decisis "a very important doctrine," although it was not an "inexorable command."
"I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis," Alito said. "And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent."
Before voting to confirm Roberts and Alito, Specter cited their statements on precedent as reason enough to put them on the high court.
Sen. Joseph I. Lieberman (I-Conn.) said at the time that he, too, found Roberts' statements "reassuring" and voted to confirm him. He voted against Alito.
"Oh, sure," Lieberman said Tuesday when asked whether he is concerned about the court's treatment of precedent. "I am interested in what Arlen has to say."
Sen. Dianne Feinstein (D-Calif.) said the testimony from Roberts and Alito was misleading in light of their rulings.
"I very much got the idea, the strong chain of reasoning, that they had great respect for stare decisis and they didn't want to be activist judges," said Feinstein, who voted against both nominees. "As you know, some of these latest cases have pretty much shattered precedent."
A review could put "judges on notice that they can't come in front of the Judiciary Committee, say one thing and leave one impression, and then go out and do another," she added.
Specter, who said he will do the review when he "gets a spare moment," would not go as far as Feinstein on whether he feels misled.
"Don't put words in my mouth," Specter said.
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