InSpecter Chairman

Specter for Chairman.
The Pennsylvania Senator, Arlen Specter, is the man in line to take over for Senator Hatch as Chair of the Judiciary Committee. The majority leader, though, today made it clear that Specter won't be automatically put in place. This, after Specter said this after Bush won a second term:

When you talk about judges who would change the right of a woman to choose, overturn Roe vs. Wade, I think that is unlikely.

The press and the GOP turned this comment into a small storm. Sen. Frist is still mad. Here he is today, on Fox News:

Arlen made some statements the day after the election. They were disheartening to me, they were disheartening to a lot of people.

So, what exactly was disheartening to Frist? What is disheartening to the majority leader is the prospect of a vocal pro-choice Republican heading up the judiciary. This, though, is translated into the code language that Specter will have a litmus test for Judges and Justices sent by the President for confirmation. Let us, then, look at that claim.

Remeber the process: the President appoints a jurist, and the Senate gives advise and consent. While reasonable people differ as to the extent the Senate ought to screen judicial candidates, no one (reasonably) argue the Senate should apply no screen whatsoever. Asking some questions within the Judiciary Committee is uncontroversial--what is your experience, how do you approach a case, etc. So, within this process, what is a litmus test? Screening out jurists untrained in the law might be such a test; but is, I doubt, controversial.

The question of judicial approach garners the conflict. And the problem is not in differeing approaches to judicial decision making--it is in the problematic code language used by both sides. Specter's comments dealt specifically with the treatment of precedent. Some people believe in 'super-precedent,' cases so entrenched as to be basically inpenetrable. In other words, cases whose rights-giving can't be overturned. Other people believe anything is vulnerable. Specter is of the former belief, Frist, apparently, of the latter. Of course, one has difficulty seeing through their jungle of code language.

The fact is this: the litmus tests exist; they are on both sides, and with different properties. The more aggressive test is on the side of Frist. The Senator is disheartened that the potential Chair lacks the same litmus test; to wit, that the jurist must desire to overturn pro-choice precedent. It is that simple.

A quick analogy may do some help here. Say Specter said: "When you talk about judges who would overturn Brown v. Board, I think that is unlikely." Certainly, Specter is taking a stand on the qualifications of an acceptable jurist. Broadly, Specter might also add that the submitted judges ought to have an accomplished legal training. These are litmus tests, to be sure. More specifically, Specter will demand that nominees uphold strong precedent cases, such as Brown and Roe. Incidentally, Justice O'Connor shares this view. Does Frist want to take this up with her?

Both Brown v. Board and Roe v. Wade are decisions that found constitutional rights that are not explicit in the document. Not everyone agrees such cases are sound law. Brown had its intelligent dissenters (the case Brown overturns, Plessy, is a lesson in strict construction); Roe has its likeminded dissenters. Certainly, the Court's rulings can be overturned. But coming to the Court with a predetermination to so overturn should be called what it is: activism. And seeking that activist judge for the task of overturning particular precedent should be called what it is: applying a litmus test.