Bench Memos

Being Arlen Specter

Every so often I return to one of the perennial problems of politics in our nation’s capital and ponder it anew: What on earth is wrong with Arlen Specter?

Here is our text for his latest spell of deep stupidity.  In Saturday’s New York Times, the senator is quoted as saying, in response to critics who think his bargain with the White House over terrorist-surveillance legislation gives away too much to the president, “I can understand if they’d like more, but this is an important step. . . . I want to know whether the program is unconstitutional.  The question is whether you’re going to have some sort of court review or nothing.”

It’s that sentence in the middle that is classic Specter.  “I want to know whether the program is unconstitutional.”  And how does he propose to find out?  Would he like perhaps to think about it a little longer and come to his own conclusion?  Would he like to read arguments or take testimony from people who could help him come to a judgment of his own?  No.  Senator Specter wants “court review.”  Nothing else will do.  Until a court tells him whether the program is constitutional, he will not know whether it is.

Specter has always had an obsequious devotion to judicial supremacy, coupled with an embarrassingly candid result-orientation on the issues that matter most to him.  For at least 20 years, he has pressed one Supreme Court nominee after another to pledge fealty to the ahistorical, anti-constitutional proposition that the rulings of the Court on the meaning of the Constitution are themselves the supreme law of the land, not to be resisted or contradicted by any other public authority, no matter what the constitutional question the Court happens to be addressing in any case.  This he has misrepresented as the principle of the Constitution itself, of the framers and ratifiers, and of the foundational case of Marbury v. Madison.  It is in fact a profound distortion of constitutional principles that was accomplished by the Court itself in the twentieth century, as Michael Uhlmann reminds us in a fine essay in the latest Claremont Review of Books.

In the most recent hearings on Supreme Court nominations, with Specter in the chair of the Judiciary Committee, he sang a tune only slightly different.  With nominees Roberts and Alito, the chairman complained about justices who show insufficient deference to the Congress’s “findings” on certain questions.  And he wanted their assent to the “super-duper precedent” status of Roe v. Wade before he would approve them as his new rulers.  But Specter never forswore his years of grovelling before the altar of judicial supremacy, and here he is again, with the perfect, simon-pure, 24-carat idiocy of that sentence in the Times: “I want to know whether the program is unconstitutional.”

God save the United States Constitution from senators such as this.

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