Friday’s Washington Times has an interesting column by my friend Gary McDowell of the University of Richmond, charging Senator Specter with two offenses on the eve of the Roberts hearings. The first is an unreasoning animus against originalism, which “doomed” the Bork nomination in 1987 as far as Specter was concerned, and about which the senator appears to be preemptively alarmed in the case of John Roberts. On this score Gary and I are in perfect accord. Specter seems to have learned exactly nothing in the last 18 years.
The second, “even more distressing” sign from Specter, in Gary’s view, is his “institutional bullying” of Judge Roberts in his two recent letters to him. Gary reads those letters as threatening to judicial independence–and thus to constitutionalism more generally–inasmuch as Specter appears to be insisting that Roberts pledge that (in Gary’s words) “he would not dare exercise the power of judicial review to invalidate any of the legislative handiwork that might come from Congress.” This, I think, goes too far in its characterization of Specter’s current position.
I’ll leave aside for another time my disagreement with Gary about what the framers expected of the judiciary when it came to checking the Congress in the exercise of its powers. More to the point here, I think he has unduly universalized a fairly specific and narrow concern of Specter’s in these two letters to Roberts.
Senator Specter is only concerned that the Court might strike down those laws to which he is attached as an ideological matter. The only cases he cites as raising his concern about the Court’s lack of “deference” to Congress are those that turned back the agenda of the left–U.S. v. Lopez on guns in schools, U.S. v. Morrison on the Violence Against Women Act, a couple of cases concerning the liability of states to lawsuits under the Americans With Disabilities Act, and so forth.
Specter’s intent, we can be sure, is not to shield any and all acts of Congress from judicial invalidation. All we need ask ourselves is, what would be the senator’s reaction should the Court strike down the federal ban on partial-birth abortion, or the Defense of Marriage Act? Isn’t the answer obvious–that he would have no objections at all? That he would actually applaud such rulings, forgetting all about his recent discovery of the virtues of judicial deference?
My friend Gary McDowell treats Arlen Specter as though he were actually making a serious argument about the principle and scope of judicial review, and McDowell meets Specter head-on with a principled reply. But this gives Specter too much credit. He is really just a result-oriented ideologue, who wants the Court to uphold the laws he likes and strike down the ones he dislikes. It’s as simple as that.