I agree wholeheartedly with Wendy Long’s cogent remarks below on the Politico story that reported Arlen Specter’s intent to “review” Chief Justice John Roberts’ and Justice Samuel Alito’s treatment of precedents, to see whether the Senate Judiciary Committee was “misled” by these justices’ testimony as nominees to the high bench. Having paid pretty close attention myself to the Roberts and Alito hearings, I think I can assure Senator Specter that neither gentleman was such a fool as to “promise” that any particular precedent was sacrosanct.
On the eve of the Alito hearings, I wrote critically of the notion that preserving precedents has any particular value when the thing to be done is to get right with the Constitution. Both Roberts and Alito were more circumspect than I wished them to be on this subject. But that was to be expected–they had a lot at stake, and a lot of reason to speak carefully. I have also argued that insistent questioning of nominees about what they truly think of precedents is perfectly appropriate. Bring on the litmus tests! And elsewhere I have written of the desirability of a resuscitated understanding of the impeachment power’s use as a remedy for abuses of judicial authority.
With all that out of the way, I have some questions for Senator Specter. When he “gets a spare moment,” as he tells Politico’s reporter, and conducts his “review” to determine whether Roberts and Alito “misled” him and his committee colleagues, what would be the point? Suppose Specter determines that the two jurists dissembled shamelessly before the committee. What would he then do? Would he send his conclusions to the House Judiciary Committee with a view to its initiating an inquiry preliminary to possible articles of impeachment? If so, how would such articles be framed so as to state the substance of the impeachable offense to be charged? And if not that, what? Would he request a Justice Department inquiry into possible perjury charges? Would he move for the Senate to hold Roberts and Alito in contempt of Congress? Would he attempt to summon the justices before a committee hearing in order to wag his finger in their faces and scold them?
The more one thinks about Senator Specter’s proposed review, the more rapidly it circles the drain on its way out of sight. Considered solely as an exercise in the unworthy project of intimidating two sitting justices or even future Court nominees, it is foolish even by standards of the contemporary Senate–a waste of time of the first order, guaranteed to effectuate nothing but the massaging of one senator’s ego. If John Roberts and Samuel Alito have heard of this, they are surely shaking their heads with bemused smiles on their faces. They are safely out of Senator Specter’s reach. And future nominees need only keep their heads high and their tongues well-trained, repeating silently to themselves “this too shall pass” whenever Snarlin’ Arlen opens his mouth.
UPDATE: I see from Ed’s post just below that Sen. Specter has issued a clarifying statement. This is good, since his remarks to Politico did not bear a moment’s scrutiny.