Bench Memos


When asked on NBC’s Meet the Press whether he thought it appropriate to ask a nominee if he would uphold Roe v. Wade, Arlen Specter said: “I wouldn’t say, ‘Are you going to uphold Roe?’ But I would ask a nominee . . . ‘When you have a decision which has been in effect for decades, and people have come to rely upon it, what kind of circumstances, how extraordinary must they be’ ” to try to overturn it?

Specter, an outspoken advocate of abortion on demand, obviously believes precedent should be given a great deal of weight. But I assume he would have found Plessy v. Ferguson a bad case, despite precedent, as well as Dred Scott, Korematsu and scores of other decisions.

Appearing on CNN, Specter viciously attacked Bob Bork saying, in part: “I’ve been criticized a lot for questioning Judge Bork in one session for an hour and a half.” “If his ‘original intent’ stood, we’d still be segregating the United States Senate with African-Americans on one side and Caucasians on the other side.” Bork, who appeared on the network later in the day, said that he supported Brown v. Board of Education.

It is amazing just how intellectually dishonest (or is it ignorant) the chairman of the Senate Judiciary Committee is on these matters.

Writing for the DISSENT in Dred Scott, Justice Curtis said: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we have the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean…”

Curtis sounds a lot like Bork and other originalists, doesn’t he? There is NOTHING in the Constitution that endorses or establishes slavery or segregation. Chief Justice Roger Taney was, indeed, a judicial activist. In striking down the Missouri Compromise, he held that slaves were property, among other things. And despite the clear wording of the Fourteenth Amendment, the Plessy Court established the doctrine of separate but equal. Even in Brown, the Court could not bring itself to overturn Plessy on Fourteenth Amendment grounds, instead relying on social sciences and so forth.

I’ve bitten off more than can be chewed here, but I felt Specter’s outrageous statements and attack on Bork needed to be answered.


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