Senator Arlen Specter attends a Senate Judiciary Committee hearing
Shaun Heasley  /  Reuters
Conservatives are trying to block Sen. Arlen Specter, R-Pa., from taking the helm as chairman of the Senate Judiciary Committee.
By Tom Curry National affairs writer
msnbc.com
updated 11/17/2004 12:55:42 PM ET 2004-11-17T17:55:42

Sen. Arlen Specter, the Pennsylvania Republican who supports abortion rights, is the last man social conservatives wanted in charge of the Senate Judiciary Committee.

That committee is the first hurdle over which President Bush’s judicial nominees must jump to win Senate confirmation.

Many Republicans think the issue of Democratic filibusters of 10 of Bush’s judicial nominees was a big reason why Bush won a second term and why seven new GOP senators were elected on Nov. 2.

As most Republicans and even some Democrats see it, Senate Democratic Leader Tom Daschle was defeated partly because Republicans were able to paint him as an obstructionist who used the threat of filibuster, the Senate tradition of unlimited debate, to block the president’s nominees from getting a vote.

During the Clinton era, Senate Republicans used opaque means such as the anonymous “hold” and refusing to schedule confirmation hearings before the Judiciary Committee to stall and sometimes kill judicial nominations. Yet Clinton was able to get 367 of his judicial nominees on the bench.

Three years ago, Democrats made a different and more overt tactical choice: the filibuster.

The filibustering may well be a dress rehearsal for the Main Event: a filibuster of Bush’s nominees to the Supreme Court, as was done to William Rehnquist in 1971 and Abe Fortas in 1968, whom President Johnson sought to elevate to chief justice.

Rehnquist beat the filibuster; when it became clear he did not have the votes to win, Fortas withdrew his name.

Twist of fate
At the very moment when the filibuster issue has given Republicans a bigger majority in the Senate, fate and seniority rules have placed a man conservatives consider an apostate in charge of getting Bush’s nominees confirmed.

“There is nothing Arlen Specter could say that we would trust,” said Jan LaRue, chief counsel of Concerned Women for America, a conservative advocacy group.

At the close of business Tuesday, after meeting for an hour and 45 minutes with Republican members of the Judiciary Committee, Specter had not persuaded them to give him the chairmanship.

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The Pennsylvania senator was first elected in 1980 and was just re-elected to his fifth term, thanks in part to campaigning by Bush. He got an endorsement Tuesday from current committee chairman Orrin Hatch of Utah who told reporters, with Specter standing by his side, “Sen. Specter handled himself very well. I’m for him…. I believe he’ll be a great chairman.”

Specter’s adversaries are playing for time, pointing out that the newly elected senators must have a voice and that the Senate’s committee assignments, and even the size of the committees aren’t voted on until January.

Conservatives are putting Specter through a political purgatory. If they can not keep him from becoming the Judiciary chairman, they want him to state explicitly that he will — with his whole heart and soul — press for Bush’s nominees to be confirmed.

59 million are watching
“Sen. Specter needs to satisfy not just us, but all the people who voted for the president on Nov. 2, that he is going to facilitate, and not thwart the president’s judicial nominees,” Judiciary Committee member Sen. John Cornyn of Texas told reporters late Tuesday. “This is not just about me, and not just about Sen. Specter. This is about 59 million people who voted to support the president and the people who unseated Tom Daschle.”

Cornyn added, “We need a public affirmation that he will support the president’s judicial nominees and make sure they can an up-or-down vote on the floor of the United States Senate.”

The roots of this battle go back at least three decades. For years, conservatives have complained about federal judges decreeing a liberal agenda for the nation: legalizing abortion, banning prayer in public schools and Christmas crèches on the steps of courthouses, striking the words “under God” from the Pledge of Allegiance, and extending greater protections to criminal suspects.

President Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987 was a landmark in the effort to reverse this trend. Specter committed the political equivalent of a mortal sin by voting against Bork.

As next in the line to head the Judiciary Committee, Specter made comments after the election in which he did not seem to understand the significance of what had just happened.

“When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter said. "The president is well aware of what happened, when a number of his nominees were sent up, with the filibuster.”

It seemed like disloyal and defeatist talk to the newly empowered conservatives.

How it seemed in Louisiana
“People in the real world view the (judicial confirmation) process as completely broken down,” Republican Senator-elect David Vitter of Louisiana told reporters Tuesday. “I don’t think it is any accident that the poster boy of obstructionism Tom Daschle is defeated. Voters (in Louisiana) couldn’t necessarily name every judicial nominee, but they were conscious of the issue and had a very clear gut sense that it was partisanship and the process wasn’t working as it was intended.”

The man who helped fund Vitter’s victory and that of the other GOP freshmen, Sen. George Allen, R- Va., said, “Having gone across this country as chairman of the Republican Senatorial Committee, I would talk about a lot of issues to motivate our supporters” but “always would finish off on judges and how important it was to have fair consideration of the president’s judicial nominees, to be accorded an up-or-down vote."

Allen concluded, "So this is very, very important promise that our candidates made, that we made as Republicans, and it is important to have leadership in the Judiciary Committee to effectuate that promise.”

Even Democrat Ben Nelson of Nebraska, who is up for reelection in 2006, acknowledged the obstructionist label cost the Democrats dearly.

Nelson broke with Daschle and the other Senate Democrats by voting against the filibusters of eight Bush appeals court nominees.

“I think the fact of the filibuster and the way in which it was characterized got ahead of the substance of how many judicial nominations were approved,” Nelson said.

Most voters may not have known that the Senate had approved 201 Bush judicial nominees, compared to the ten that Democrats had filibustered.

But Nelson said that fact “might not have mattered to many of them, because they didn’t like the process that was used to stop the nominations of certain ones.”

Implications for 2008
What does the Specter battle bode for the future?

For Democrats, they face a choice: continue filibustering or abandon the tactic.

Asked whether Democrats, their numbers now reduced to 44, would re-consider using the filibuster, Nelson replied, “I think the caucus is going to rethink a lot of things, and that might just be one of them.”

But two of the Democratic senators who led the charge against Bush nominees were unyielding Tuesday.

“The very purpose of the filibuster rule is to not to allow the entire system here to be pure majority rule,” argued Sen. Russ Feingold, D- Wisc. “I think people in my state realize that and reject the idea that one party should have a stranglehold on every lever of power.”

And Sen. Dick Durbin of Illinois placed part of the blame on the news media for spreading the impression of the Democrats as the party of obstruction. “Some members of the media didn’t tell the whole story,” he said.

For the Republicans, once they decide on Specter’s fate, they face a 2008 choice.

Among the Republican senators who are mentioned in Washington as potential contenders for the 2008 GOP presidential nomination, three in particular have a big stake in the Specter spectacle:

  • Majority Leader Bill Frist: Can he mollify both the conservatives in Senate GOP ranks and the remaining few Northeastern liberals personified by Specter? Can he outmaneuver Democratic filibusters in the new session? What manner of leader is he?
  • George Allen: The pilot of the successful Republican Senate election effort this year seems a credible presidential hopeful to some, partly because his folksiness may make his conservatism more palatable than it would be coming from, say, John Ashcroft. Allen’s patina loses some of its shine if the story ends with Specter dashing the hopes of Vitter and other GOP freshman.
  • Specter’s Pennsylvania colleague, Sen. Rick Santorum. Although a staunch foe of abortion and same-sex marriage, Santorum helped Specter win re-election this year and according to Specter, has been rounding up support for him as Judiciary chairman.

“Sen. Santorum has been enormously helpful,” said Specter Tuesday. “He’s gone above and beyond the call of duty. My number one priority in the next two years is to reelect Sen. Santorum.” 

Santorum, whose Senate seat is up for re-election in 2006, was conspicuously absent from Tuesday’s proceedings.

For conservative voters who may dominate in the 2008 GOP primaries, one doubts that this would really be an appealing campaign slogan: “Rick Santorum: The man who brought you Arlen Specter.”

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