Specter Investigating Roberts and Alito Testimony

Arlen Specter thinks he was hoodwinked by John Roberts and Samuel Alito during their confirmation hearings. Essentially, they told the Senate that they were very respectful of precedent and Specter thinks their actions on the Court have broken what amounts to a promise.

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.”

Now, aside from impeachment, there’s nothing Specter and Durbin can do about this. The idea that they could be “more probing” and get meaningful answers from prospective Justices is silly. Any nominee worth his salt will decline to make specific assurances on votes, citing “judicial independence.”

Further, vague promises about “strict construction,” “interpreting the Constitution as written,” and “respecting precedent” are meaningless in application. Roberts and Alito have indeed voted to overturn some longstanding precedents. But Alito merely said that, “there needs to be a special justification for overruling a prior precedent.” Do Specter and Durbin really think he didn’t think he had a good reason for ruling as he did in cases overturning precedents?

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. cfoster says:

    Specter is worried about his “sooper dooper precedent.” I’m in no way up on inside politics. Why on Earth did repubs make him chairman of the judiciary committee?

  2. Beldar says:

    Although I congratulate him on his apparent return to physical health, Sen. Specter is, and has long been, a few French fries short of a Happy Meal.

    As for results of his “investigation,” the only possible verdict must be “not proved.” The notion that either Chief Justice Roberts or Judge Alito have been notably eager, in comparison to other Supreme Court Justices, to overrule prior precedents is contrary to their actual record so far. If there’s a Justice on the Court of whom that charge could be made persuasively, it’s Justice Thomas — but that’s nothing new for him, and by comparison to him (or for that matter, to Justice Kennedy), Chief Justice Roberts and Justice Alito have so far been rock-solid pillars of stare decisis.

    Roberts and Alito both effectively tip-toed around Specter’s unique, silly, and entirely unprecedented notion of “super-precedents” during their confirmation hearings.

    What Sen. Specter will again succeed in doing, however, as so often in his career, will be to give aid and comfort to his party’s political enemies on matters judicial like Leahy and Schumer and Kennedy.

  3. David L says:

    Stare Decisis(precedence) is the last refuge for judicial tyrants No justice suggests Stare Decisis is absolute.

    For exmaple, if any justice, were show a new found respect for Plessy v. Ferguson, overtuned by Brown v. Board, Senators Spector and Durbin would be first to soil their nappies.

    No Senator respects all precedence. So spare me the hissy fits with their choosen favorites get over turned.

  4. jpe says:

    Any nominee worth his salt will decline to make specific assurances on votes, citing “judicial independence.”

    Then they should be blocked as nominees. I’m 100% with Big Tent Dem @ TalkLeft: the notion that judges should be exempt from telling Congress what they think the law is in any given area is an absurdity. They should be asked direct questions about specific cases, and shouldn’t be approved if they fail to do so.

    This doesn’t fall under the judicial code of conduct that prevents judges from speaking on present or future cases; that rule applies to a judge’s assessment of the facts, not her view of the law.

  5. floyd says:

    JPE;
    I infer from your comment that a nominee’s political philosophy is more important than any respect he might have for the Constitution.
    An outright pledge to uphold some precedent, for the sake of precedence, would violate the oath required of him.
    Precedence should be be given due consideration,
    but “LIVE” judges should decide each case in light of the it’s Constitutionality.

  6. jpe says:

    I infer from your comment that a nominee’s political philosophy is more important than any respect he might have for the Constitution.

    You’re proceeding from the position that the bare text of the Constitution, by itself and without any other principles of interpretation, can determine any given Constitutional question.

    You’re entitled to that opinion, as wrong as it is.

    An outright pledge to uphold some precedent, for the sake of precedence, would violate the oath required of him.

    No one’s asking for a pledge. It’s just goofy to pretend that judges don’t have pre-existing positions on, say, the legitimacy of substantive due process.

    Our current nominating process operates under the patently outdated notion that judges are solomonic sages that go into a case with a mind free of any ideas about what the law is. Very, very few people buy that, and it’s time the nominating process reflect that.

  7. Beldar says:

    jpe wrote,

    I’m 100% with Big Tent Dem @ TalkLeft: the notion that judges should be exempt from telling Congress what they think the law is in any given area is an absurdity. They should be asked direct questions about specific cases, and shouldn’t be approved if they fail to do so.

    Okay, then, let’s just cut to the chase and eliminate judges altogether. Instead, we’ll just have clerks to accept the new lawsuits, and bailiffs/U.S. Marshals to enforce the outcomes. Outcomes will be automatically decided based on whether the person filing the lawsuit is of the same or different political persuasion of the party then controlling the Senate.

  8. floyd says:

    “”You’re proceeding from the position that the bare text of the Constitution, by itself and without any other principles of interpretation, can determine any given Constitutional question.””

    “”””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””

    So how did you get that, from this….

    “”Precedence should be be given due consideration,
    but “LIVE” judges should decide each case in light of the it’s Constitutionality””
    ????????????????????????????????????????????????

    I suppose you think Breyer’s Judicial Philosophy is acceptable. He advocates the complete marginalization of the constitution in favor of international law precedence.
    That really adds the “T” to reason.

  9. jpe says:

    Outcomes will be automatically decided based on whether the person filing the lawsuit is of the same or different political persuasion of the party then controlling the Senate.

    Yeah, that’s exactly what I was proposing. And politicizing the bench is just like admitting that judges have pre-existing jurisprudences that are legitimate avenues of inquiry for the senate.

  10. jpe says:

    That really adds the “T” to reason.

    I’d rather you add the “t” to “precedent.”

  11. floyd says:

    JPE;
    I can see why you would , but it was meant as spelled, given Breyer’s willingness to rank international law above the constitution.
    Look it up, you’ll see what I meant!
    BTW, I am not above an ocasional mispeling{sic}

  12. Grewgills says:

    I suppose you think Breyer’s Judicial Philosophy is acceptable. He advocates the complete marginalization of the constitution in favor of international law precedence.

    Yes, because considering precedents in international law in cases where there are few relevant precedents in our courts indicates that you have entirely abandoned the Constitution. He also uses the internet to do some of his research indicating a complete marginalization of books.

  13. floyd says:

    “”He also uses the internet to do some of his research indicating a complete marginalization of books.””

    Something tells me that he is not alone in this!![lol]