Bench Memos

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Shame on You, Senator Specter


Senator Specter used to stand for something during Judiciary Committee Hearings. As a younger Elena Kagan quoted approvingly in 1995, he famously exhorted the Senate to “rear up on its hind legs” and refuse to confirm nominees who would not answer their questions. As it turns out, both Kagan and Specter are now singing a different tune. Kagan’s abandonment of her own high standard for judicial confirmation hearings is as disappointing as it is self-serving. She was happy to encourage other nominees to improve the “charade” of a confirmation process by discussing real ideas and real issues, but shied away herself when she feared endangering her own chances at a Supreme Court seat — even in the face of a 59-seat Democratic majority in the Senate.

But Senator Specter’s own abandonment of his principles has a less obvious upside for him, and it lends a bitter closing note to his decades-long career in the Senate. In a USA Today opinion piece, he confirmed that Kagan “did little” to change the current charade of a hearing process, and failed to answer his substantive questions on legal issues. But, he claimed, she did just enough to win his vote. What bone did she throw to Senator Specter? Agreeing with all the senators who had expressed opinions on the issue, she advocated allowing cameras in the courtroom for Supreme Court arguments. What a brave stand for principles, and on an issue she is powerless to do much about, at least until all the current justices who remain firmly opposed to televising proceedings leave the court! After seeing how substantive and productive the televised judiciary committee hearings are, one can hardly blame them for wanting no piece of it.

Specter also cited her identification of Justice Marshall as a role model — which should come as no surprise, as she had clerked for him and had previously stated her admiration for him. Perhaps her careful defense of him in her hearings was noteworthy because she didn’t shy away from throwing other previously identified liberal role models like Aharon Barak under the bus. She did, however, make quite clear that her views diverged from those of Justice Marshall on many points (although naturally she refused to say which ones, apart from being willing to view cases finding the death penalty constitutional as settled law).

Specter voted against Kagan when she was up for confirmation to her current post as solicitor general because she was not forthcoming in answering his questions. Nothing of substance of changed. Specter lost his primary even after switching parties in hopes of prolonging his career, so his Senate career ends this year and he no longer needs to curry favor with any party or even his own constituents. So why abandon principle now? Who knows, maybe Joe Sestak’s position on the Intelligence Advisory Board was still open.


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