Since the New Deal, conservatives have bemoaned the expansion of federal government power, a breach of the Constitution enabled and endorsed by a Supreme Court that apparently has decided that judges’ views of what is best are more relevant than what the Constitution actually says.
Since 1973, over 40 million unborn children have been aborted, many of whom would be healthy children, teenagers, or even Senators today had the Supreme Court not prevented state governments from trying to protect them in utero.
Compounding the insult, Congress has made laws abridging the freedom of speech, the right to bear arms has been infringed, property has been taken not for public use, but the otherwise not-shy Supreme Court has refused to step in–though it had to draw the line when someone posted the Ten Commandments in a courthouse.
An activist and capricious Supreme Court has resulted a hodgepodge of a political alliance that is today’s Republican Party–bringing together libertarians, bleeding heart pro-lifers, apolitical Christians, supply-side economists, and states-righters–an alliance with little substantive reason to be together, but a common strategic aim: change the Supreme Court.
This alliance put George W. Bush in the White House and created a large Republican congressional majority. Now, after decades of political cold war over an activist court that sees itself as benevolent dictators–with countless proxy battles in Senate races, appellate court nominations and Attorney General nominations–we are about to engage in real war.
At stake in the first battle is the confirmation of John Roberts to the Supreme Court.
On the side of the status quo there is a formidable lineup: The New York Times and Washington Post op-ed pages; the New York Times and Associated Press news pages (one has investigated the adoption of John Roberts’ children, while the other has trumpeted that Roberts didn’t grow up around very many blacks [did they write that about Howard Dean?]); Chuck Schumer, Ted Kennedy, Ted Turner, NARAL, Planned Parenthood, People for the American Way, and their combined tens of millions dollars.
Facing this veritable murderers row, for the opening match-up of this showdown, the management on our side–the side of limited government, restrained courts, and protection of the unborn–has put the ball in the hands of Arlen Specter.
In the next few weeks, Senate Judiciary Committee Chairman Arlen Specter will be the chief voice of the Republican Party when it comes to the Roberts nomination. The Sunday shows will feature on one side Chuck Schumer–who, among other efforts on behalf of NARAL and Planned Parenthood, has tried to make federal law discriminate against pro-life protestors–and on the other Arlen Specter. As chairman, Specter will have more access than any other Republican to the print and broadcast media.
This is problematic for obvious reasons. Pro-lifers and conservatives have little reason to think that Specter will be on our side. Specter believes in Roe v. Wade, an expansive reading of the interstate commerce clause, and a “living, growing Constitution.” In short, our side is being led by someone who’s really on their side ideologically.
Luckily for us, Specter is a fighter. He borked Bork, but then attacked Anita Hill. Today, it seems like the liberals have pissed Specter off more than the President has, and so Arlen will probably be a boon rather than a bane in the effort to get Roberts confirmed.
But winning the Roberts battle will not be enough. Roe will likely still have a 5-to-4 majority on the court, and the four hard-core liberal justices will still have Anthony Kennedy to side with them on some key issues. So, for conservatives, winning the Roberts battle is necessary, but not sufficient. At least one (and likely two) more confirmation victories are necessary in order to establish a conservative majority on the court. This is where Chairman Specter could be disastrous.
Assuming Roberts wins (which is not a given by any stretch), Specter could very likely still shape the terms of debate in such a way as to make the next conservative nominee unconfirmable. Specter is likely to do this in many ways.
First, we have already seen Specter assail the “activist Rehnquist court.” Understanding this bizarre phrase allows us to understand Specter’s view of the world. Specter attacks the current court majority for ruling that the part of the Constitution allowing Congress to regulate interstate commerce does not allow Congress to make laws that regulating actions that do not involve commerce and are fully within one state (such as the Violence Against Women Act and a law regarding possession of guns near schools).
Specter uses the rhetoric almost simplistic enough for NARAL in an effort to make Rehnquist’s reading of the interstate commerce clause (which is too expansive for most conservatives) sound like an extreme position (as if he favors violence against women and guns on playgrounds).
Similarly, Specter has called Roe “inviolate.” Do not be surprised if Specter endorses Roberts, specifically because Roe will be still be safe thanks to the man he put on the court by defeating Bork: Anthony Kennedy. If Roberts wins, Specter will try to draw the line in the sand, saying that four conservatives is fine, but no more. Indeed, it was his concern about the “balance of the court” that Specter cited in borking Bork.
It is possible that I am overstating the potential liability Specter represents. The Specter Problem is one I have been writing about for two years, and it could be that I overemphasize it. But in the coming weeks we will get a chance to see if Arlen will hurt John Roberts’ confirmation, or, more likely, hurt the chances of a prospective future conservative nominee.
If that happens, conservatives would be wrong to blame Specter. Specter will be Specter. We would have been fools if we expected anything else from this man. Instead, conservatives would need to turn their ire on their leaders who should have known better than to save Specter twice. Had George W. Bush, Rick Santorum, or Bill Frist wanted Specter either defeated in April 2004 or out of the chairmanship in November 2004, Arlen would not be our go-to guy right now. It might be conservative Sen. Jon Kyl.
After the election last year, when Specter warned Bush against sending him pro-life nominees, many pro-lifers recalled an old folk tale, which surfaced in the Oliver Stone film, Natural Born Killers–a story that may be particularly appropriate in a few weeks.
A lady walks to the top of a mountain, and there she sees a rattlesnake, badly wounded and on the verge of death. The snake calls out for help. The lady says, “If I pick you up, you will bite me and kill me.” The snake responds, “Please, I depend on you for survival.”
And so the lady picks up the snake, carries it down the mountain, and nurses it back to health. For weeks, she feeds it and dresses its wounds. Then, when the snake is healthy, it comes to the lady and bites her. As she dies of the venom, she asks, “How could you do this to me? I saved your life. I nursed you back to health.” The snake says, “Look, bitch, you knew I was a snake when you picked me up.”
Tim Carney is a Phillips Fellow and a free-lance journalist in Washington, D.C.