-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: July 26, 2007 12:38:23 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Arlenn Specter Hints That Bush's Judges in Supreme Court
Lied to Congress
Specter to probe Supreme Court decisions
By: Carrie Budoff
July 25, 2007 10:50 AM EST
http://www.politico.com/news/stories/0707/5099.html
Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of
U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A.
Alito to determine if their reversal of several long-standing
opinions conflicts with promises they made to senators to win
confirmation.
Specter, who championed their confirmation, said Tuesday he will
personally re-examine the testimony to see if their actions in
court match what they told the Senate.
"There are things he has said, and I want to see how well he has
complied with it," Specter said, singling out Roberts.
The Specter inquiry poses a potential political problem for the GOP
and future nominees because Democrats are increasingly complaining
that the Supreme Court moved quicker and more dramatically than
advertised to overturn or chip away at prior decisions.
Specter, the ranking Republican on the Judiciary Committee, who
served as chairman during the hearings, said he wants to examine
whether Roberts and Alito have "lived up" to their assurances that
they would respect legal precedents.
Judicial independence is "so important," Specter said, but an
examination could help with future nominations. "I have done a lot
of analyzing and have come to the conclusion that these nominees
answer just as many questions as they have to."
Senate Majority Whip Richard J. Durbin (D-Ill.), a Judiciary
Committee member who voted against both nominees, said a review
"could lead us to have a different approach." He said senators need
to be "more probing" with their questioning of nominees.
"Certainly Justice Roberts left a distinct impression of his
service as chief justice. And his performance on the court since, I
think, has been in conflict with many of the statements he has made
privately, as well as to the committee," said Durbin, who was
unaware of Specter's idea.
"They are off to a very disturbing start, these two new justices. I
am afraid before long they will call into question some of the most
established laws and precedents in our nation."
The idea for a review came to Specter when he said he ran into
Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado.
Breyer, an appointee of President Bill Clinton, drew attention last
month for suggesting that Roberts and the conservative majority
were flouting stare decisis, the legal doctrine that, for the sake
of stability, courts should generally leave past decisions
undisturbed.
"It is not often in the law that so few have so quickly changed so
much," Breyer said, reading his dissent from the bench to a 5-4
ruling that overturned school desegregation policies in two cities.
Roberts has defended his rulings as applications of "existing
precedent."
Specter, however, said Breyer's statement was "an especially
forceful criticism of the Roberts court."
"I only noticed it in a couple of cases," Specter said of the court
overturning or undermining precedents. But Breyer, in their Aspen
conversation, said "there were eight."
Those that have earned the most criticism from liberals were
rulings that struck down desegregation programs, upheld a federal
law prohibiting late-term abortions and weakened restrictions on
broadcast ads during campaigns.
"The reality is, although John Roberts and Samuel Alito promised to
follow precedent, they either explicitly or implicitly overruled
precedent," said Erwin Chemerinsky, a Duke University law professor.
"It is important to point out how the confirmation hearings were a
sham. There is nothing you can do about it now; they are there for
life. But it is important as we look to future hearings."
Conservatives such as Sen. Jeff Sessions (R-Ala.), a Judiciary
Committee member, have no complaints. "I don't have any concerns
about them whatsoever," Sessions said of Alito and Roberts.
Like other Republicans and many Democrats, Specter grilled the
nominees on their approach to precedent, often as a way to discern
their thoughts on Roe v. Wade, the 1973 Supreme Court ruling
establishing abortion rights.
And Specter repeatedly sought assurances that Roberts and Alito
would respect what the senator considered settled law.
Roberts said there would be instances that called for a
reconsideration of prior decisions. But, he added, "I do think that
it is a jolt to the legal system when you overrule a precedent.
Precedent plays an important role in promoting stability and
evenhandedness."
Alito called stare decisis "a very important doctrine," although it
was not an "inexorable command."
"I agree that, in every case in which there is a prior precedent,
the first issue is the issue of stare decisis," Alito said. "And
the presumption is that the court will follow its prior precedents.
There needs to be a special justification for overruling a prior
precedent."
Before voting to confirm Roberts and Alito, Specter cited their
statements on precedent as reason enough to put them on the high
court.
Sen. Joseph I. Lieberman (I-Conn.) said at the time that he, too,
found Roberts' statements "reassuring" and voted to confirm him. He
voted against Alito.
"Oh, sure," Lieberman said Tuesday when asked whether he is
concerned about the court's treatment of precedent. "I am
interested in what Arlen has to say."
Sen. Dianne Feinstein (D-Calif.) said the testimony from Roberts
and Alito was misleading in light of their rulings.
"I very much got the idea, the strong chain of reasoning, that they
had great respect for stare decisis and they didn't want to be
activist judges," said Feinstein, who voted against both nominees.
"As you know, some of these latest cases have pretty much shattered
precedent."
A review could put "judges on notice that they can't come in front
of the Judiciary Committee, say one thing and leave one impression,
and then go out and do another," she added.
Specter, who said he will do the review when he "gets a spare
moment," would not go as far as Feinstein on whether he feels misled.
"Don't put words in my mouth," Specter said.
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