By Charles Babington
Washington Post Staff Writer
Friday, September 2, 2005
Conservatives who have bridled at Arlen Specter's 25-year Senate career figured they finally had the Pennsylvania Republican hemmed in this summer, as he prepared to chair the first Supreme Court confirmation hearing in 11 years.
The proudly independent and unpredictable moderate had inflamed the political right by opposing Robert H. Bork in 1987, and he rekindled the fire last fall by suggesting that a strongly antiabortion nominee might not win Senate confirmation. The ensuing uproar forced him to humbly promise party fealty to keep his new post as Judiciary Committee chairman. Surely, Republican activists concluded, he would feel constrained and circumspect in chairing the hearing for John G. Roberts Jr., which opens Tuesday.
In fact, Specter's maverick streak appears as strong as ever. He has signaled plans to ask the nominee pointed questions, and he endorsed a Democratic call for the Bush administration to release more documents related to Roberts. Moreover, Specter says he will use the hearing as a forum to rebuke the current Supreme Court -- particularly conservative Chief Justice William H. Rehnquist -- for "insulting" Congress in rulings in which Roberts played no role.
Although Specter is battling Hodgkin's disease at age 75 and is approaching a well-publicized hearing that could loom large in his political legacy, his penchant for unorthodox stands and surprising tactics seems undiminished, according to scholars who watch him.
"He's one of the most interesting senators of our time," says Cass R. Sunstein, a constitutional law professor at the University of Chicago. "The fact that the right was so concerned about him as head of the Judiciary Committee made many people think he'd be very careful in scrutinizing Bush's appointees. But I guess he has proved unpredictable once again."
While Senate hearings can take unforeseen turns, lawmakers and activists doubt that the Roberts nomination will feature the brand of fireworks ignited by Bork -- who was rejected -- or Clarence Thomas, who was narrowly confirmed after Anita Hill accused him of sexual harassment. Given Roberts's deliberately bland demeanor, some of the more entertaining or dramatic moments could come from the mercurial chairman, who combines an incisive legal mind with an almost puckish pleasure in annoying and surprising the political left and right.
In a recent interview, Specter said his goal "is to have a dignified hearing which will give insights into Judge Roberts's jurisprudence, and to get an idea of his thinking on questions like respect for precedent . . . and his views on congressional authority."
No one doubts that Specter will tolerate tough questions more readily than would his predecessor, Sen. Orrin G. Hatch (R-Utah), a staunch conservative who once rebuked a committee Democrat for posing "dumb-ass questions" to Roberts at a 2003 appellate court confirmation hearing. Specter makes no apologies for planning probing questions on a range of constitutional issues. "If you don't assert yourself when you're confirming them," he said, there is no chance to do so later.
Specter proudly notes that he has been called "a senator who had managed in two Supreme Court confirmations to alienate the entire electorate." His 2000 autobiography recounts how he infuriated Rehnquist with persistent questions in 1986, and angered President Ronald Reagan by telling him he would not support his policy of backing Nicaraguan contra rebels.
Specter's prickliness and different-drummer tendencies occasionally land him in political scrapes. Some colleagues snickered when he cited "Scottish law" in voting "not proven" at President Bill Clinton's impeachment trial. His fierce interrogation of Hill angered many women in 1991, and he narrowly defeated a female challenger in his election the next year. Hard-core conservatives, long irked by Specter's support of legalized abortion, minimum-wage increases and other measures, backed Pat Toomey's stiff challenge in last year's GOP Senate primary, which Specter survived with President Bush's help.
He had another close call last November when he spent two weeks scrambling -- some said groveling -- to save his new chairmanship after his comments about antiabortion nominees facing difficult confirmations. He promised, in writing, to give Bush's judicial nominees "quick committee hearings and early committee votes."
To some, the cocky senator appeared cut down to size. But anyone who thought Specter would be cowed or bashful in the Roberts confirmation process has been disappointed. Those who know him best are not surprised.
"Arlen Specter is unflappable," said former senator Alan K. Simpson (R-Wyo.), a colleague for 18 years. "You can't frighten him, you can't spook him." He said Specter has a credo that Simpson believes has helped him overcome cancer and political challenges alike. "He told me, 'Never let your face show how hard they're kicking your ass,' " Simpson said.
In the interview, Specter said his November promise in no way constrains him from questioning Roberts closely and running the hearing as he sees fit. "The president and I have discussed this directly, what he views as the chairman's role," Specter said. As for the hearing's aftermath, he said that "it'd be grossly inappropriate to make a commitment on votes under any circumstance."
Specter's most surprising move in preparing for the hearing came on Aug. 8, when he used a letter to Roberts to assail the current Supreme Court on matters in which the nominee had no hand. "Members of Congress are irate about the Court's denigrating and, really, disrespectful statement's about Congress's competence," Specter wrote. A similar letter on Aug. 23 raised concerns about "the Supreme Court's judicial activism which has usurped Congressional authority."
While Specter told Roberts to expect questions on the subject, he acknowledges using the high-visibility hearing to champion a pet cause that has stirred relatively little comment outside academic circles. "This is our one opportunity to really try to exercise some influence, in a perfectly appropriate way, on the balance of power," he said.
Specter is criticizing the current court -- and Rehnquist, in particular -- for several rulings in recent years that concluded Congress had not justified laws with facts and research. One such case -- United States v. Morrison in 2000, stemming from a college rape case -- struck down a portion of the 1994 Violence Against Women Act.
In passing the law, Congress invoked its powers to regulate interstate commerce and determined that assault victims should be able to sue their assailants in federal court. Lawmakers conducted four years of hearings, and concluded that states were not dealing adequately with violent crimes against women.
The Supreme Court's 5 to 4 decision rejected Congress's findings and its "method of reasoning," which angered Specter. He told Roberts he will ask him, "Is there any real justification for the court's denigrating Congress's 'method of reasoning'?"
To University of Virginia law professor G. Edward White, "the whole exercise seems grandstanding on Specter's behalf. Roberts has not, of course, been involved with any of those decisions."
But University of North Carolina law professor William P. Marshall says Specter has seized a serious issue ripe for greater scrutiny, especially if the questioning of Roberts proves less than scintillating. "It's somewhat surprising that Congress hasn't gotten more annoyed" by rulings such as Morrison, Marshall said . "By talking about these issues, I suppose he is steering the nomination to an area that some would call conservative judicial activism" by the Rehnquist-led court.
If so, conservative activists may consider it another black mark on Specter's handling of Supreme Court nominations.
The senator, meanwhile, says it is too early to discuss his legacy, and aides say he talks -- seriously or not -- of running for another six-year term in 2010. But some academics and analysts are pondering his legacy now, and Harvard law professor Laurence H. Tribe says Specter's focus on the Supreme Court's differences with Congress may be a smart move.
"Specter's stature and his place in history," Tribe said in an e-mail comment, "may well turn on how well he uses this unusual opportunity to showcase the Constitution rather than the personalities of the Judiciary Committee members."