April 29, 2009

Impact of Specter’s Party Switch

In the last 24 hours, the Committee for Justice has received a lot of queries about Sen. Specter’s switch to the Democratic Party. Here are some of the questions, along with the answers of CFJ Executive Director Curt Levey.

Q: Will Sen. Specter’s voting record on nominees change much?

We’d be surprised to see a substantial change. We were glad to hear Sen. Specter’s promise that he will continue to be an independent voice and vote, and that he will not be a dependable 60th vote on cloture. Just this morning at the White House, Specter reiterated that on the issues where he “traditionally differs from the Democrats” -- which have included judicial and Justice Department nominees – he will continue to differ. Specter has already said that he will continue to oppose the Obama legal nominee that is of greatest concern, namely Dawn Johnsen, who was named to head the Justice Department’s Office of Legal Counsel.

We and many others will do our best to hold Sen. Specter to the promises he made in the last 24 hours, as well as to the promises he made earlier this year. The latter includes use of the filibuster if Judiciary Chairman Leahy refuses to honor the traditional requirement that both home state senators consent before a district or circuit court nominee can get a hearing. It also includes Sen. Specter’s demand that Leahy not rush nominees through the Judiciary Committee and his call for the President to renominate three unconfirmed Bush appeals court nominees with bipartisan support – Peter Keisler, Judge Glen Conrad, and Judge Paul Diamond.

What’s most likely to ensure that Sen. Specter sticks to his promises, rather than drifting to the left, is his awareness that he needs to worry about his Republican opponent in the 2010 election rather than about winning a Democratic primary. After all, President Obama, Senate Majority Leader Reid, and Pennsylvania Governor Rendell have all pledged their support in the primary.

Q: How does the loss of the filibuster threat affect the judges issue?

First, keep in mind that Senate Democrats are not at 60 seats yet. The legal battle between Norm Coleman and Al Franken needs to run its course. We call on Minnesota Gov. Tim Pawlenty to ensure that something as momentous as a filibuster-proof majority in the U.S. Senate has a stamp of legitimacy from the Minnesota Supreme Court and, should they become involved, the federal courts.

That said, 60 Democratic senators will not always be sufficient to prevent a filibuster. Sen. Specter and at least a few red state Democrats will be open to voting against cloture should Republicans decide to filibuster Obama’s most extreme nominees. Specter and Democrat Ben Nelson of Nebraska have already lined up against Dawn Johnsen. Frankly, it’s CFJ’s job to remind red and purple state Democrats that the values of nominees like Johnsen are radically different than those of the folks who sent them to Washington. The good news about the 2008 election is that are now more red state Democrats to target, and Specter is now in a position to rally them.

Q: Will having a new ranking Republican on the Judiciary Committee affect the judges battle?

Having a new Ranking member is likely to be a plus. Arlen Specter worked hard to maintain a cordial relationship with Chairman Leahy, but his civility was not always reciprocated by Leahy, especially when it came to judicial nominees. The shameful treatment of D.C. Circuit nominee Peter Keisler, who went two years without a committee vote under Leahy despite repeated requests by Specter, is just one example. Sadly, getting under Leahy’s famously thin skin seems to be more effective than civility, so we believe it’s time to try a more confrontational approach.

Several of the Judiciary Committee Republicans in contention to become Ranking Member are capable of standing up to Sen. Leahy, but Sen. Sessions of Alabama is perhaps the most likely pick because he is not ranking on another committee, nor is he part of the leadership. Sessions would be an excellent choice. He totally gets the judges issue, has a brilliant legal mind and a commitment to principle, and exhibits calm but firm resolve.

That said, we are not amongst those who are glad to see Sen. Specter leave the party. We will always admire and appreciate his leadership in securing the confirmations of Supreme Court Justices Roberts and Alito. Specter’s candor about switching parties to enhance his prospects for reelection was refreshing and reminds us of his many fine personal qualities. His focus on reelection is good news in that it must mean that he expects to recover fully from a recent recurrence of cancer, and we wish him continued good health.

Q: What impact do the GOP’s declining numbers in the Senate, including Specter’s party switch, have on the prospects for maintaining a center-right majority on the Supreme Court?

The five center-right Justices are all unlikely to retire in the next four years, so the answer largely depends on who wins the next few presidential elections. The next time a GOP President fills a Supreme Court vacancy, he will likely be able to count on the support of various red and purple state Democrats. That will probably be enough for confirmation if there are 40 or more Republicans in the Senate at the time, which is likely given that nearly three-quarters of the Senators up for reelection in 2012 will be Democrats.

In any case, it’s hard to draw any conclusions from Sen. Specter’s party switch. It was precipitated by the change in party registration of two hundred thousand GOP voters in Pennsylvania in the lead up to the Clinton-Obama primary last spring. The desire of Pennsylvanians to vote in that exciting primary had grave consequences for Specter, but it’s hardly evidence of a permanent realignment in Pennsylvania, no less across the nation.

Consider the many pundits who, just four years ago, said that Democrats had little chance of becoming a majority party because they were only competing in half the nation. That should remind us all of the perils of speculating about 2012 and beyond.

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