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Specter relishes role grilling Supreme Court nominees
Monday, July 05, 2010

WASHINGTON -- Strolling through a sun-splashed corridor of the Russell Senate Office Building after an afternoon spent grilling a Supreme Court nominee, Sen. Arlen Specter grinned last week when asked for his quick thoughts on Elena Kagan.

"I don't have any quick thoughts," he said. "But I'd be glad to speak you a treatise."

Mr. Specter is at home amid the only-in-Washington circus of a Supreme Court confirmation hearing, in which his legal acumen and political cunning have placed him in a sometimes-controversial spotlight during 13 confirmation hearings spanning his five terms.

He used last week's hearing to air his criticisms of the court and to return to the limelight after mostly avoiding publicity since his May 18 primary election loss.

"I'd call it his swan song," said Rutgers University professor Ross Baker, an expert on Congress.

Mr. Baker said Mr. Specter's Senate career, which will conclude in January, will likely be remembered primarily for two things: his party switch from Republican to Democrat last year, and Supreme Court hearings.

A former district attorney of Philadelphia, Mr. Specter immediately assumed a seat on the Judiciary Committee when he arrived in the Senate in 1981. His first confirmation hearing was that year, for Justice Sandra Day O'Connor, whose career on the court would end up being shorter than Mr. Specter's in the Senate.

A pivotal moment in Mr. Specter's career -- and in the Supreme Court hearings themselves -- came with the 1987 nomination of Robert Bork. Judge Bork's candid observations on his conservative views led to an assault on his nomination from the left. Mr. Specter ended up being a key Republican vote against Mr. Bork, whom he thought would overturn the Supreme Court's ruling legalizing abortion, and the nomination failed.

Many of the same people who praised Mr. Specter demonized him four years later during the Clarence Thomas hearings, when his aggressive questioning of professor Anita Hill undercut her sexual assault allegations against Justice Thomas and helped him to confirmation.

Clutching a cup of coffee and surrounded by a small group of reporters during a break in last week's hearing, Mr. Specter reflected on the impact of the Thomas-Hill "saga," though he didn't mention his role as villain.

"People didn't have a view of sexual harassment and now everybody understood it," he said. "It hasn't been stopped because men are still men and women are still women, but it's sure been cut back a lot. There was a profound effect on elevating women's rights from that hearing."

In addition, the impact from the Bork hearing could be felt last week, as Ms. Kagan followed the trend of her post-Bork predecessors in trying to be as vague as possible on her personal views and avoid questions about how she'd rule on certain cases. The tactic seemed to annoy Mr. Specter, who asked the nominee multiple times what kind of legal test she would use to determine whether congressional legislation is constitutional under the commerce clause, as Ms. Kagan refused to be pinned down.

"I don't think I'm making too much progress," Mr. Specter said at one point.

Ms. Kagan's artful dodging caused Sen. Tom Coburn, R-Okla., to suggest that the hearings themselves have become useless, and perhaps the Senate should return to the old way of getting to know a nominee informally before voting.

Mr. Specter wasn't willing to go that far.

"These are great educational forums," he said. "And I believe that the justices across the street pay some attention to what we do here."

For the wider public, that might not have been the case. Ms. Kagan's nomination did not provoke as much of the usual Supreme Court controversy, and her confirmation seemed a foregone conclusion.

As a result, Mr. Baker said, Mr. Specter didn't have much of "an opportunity to show his stuff."

"He doesn't even have to defend her, or attack her, and that of course is kind of frustrating for him, because he's very good at both," Mr. Baker said.

Instead, Mr. Specter used his prosecutorial jabs on the court itself -- for its overturning of precedent in the Citizens United v. Federal Election Commission case, for its declining caseload and for its refusal to hear certain cases, including a challenge to President George W. Bush's warrantless wiretapping program.

Mr. Specter said Chief Justice John Roberts had flipped from his deferential answers at his 2005 confirmation hearing into being a conservative activist on the bench. The best way to hold justices accountable, Mr. Specter argued, would be to televise the court -- a view he has long held, and one that Ms. Kagan supported.

Citing public opinion polls overwhelmingly in favor of it and the elevation of Ms. Kagan, Mr. Specter said he believes "we're getting close" to a CSPAN Court.

Mr. Specter has gotten a bill passed out of the Judiciary Committee that would urge the court to go on television, and he said he has spoken to Majority Leader Harry Reid, D-Nev., about getting a floor vote, though the court has the final say on whether to turn the cameras on.

It's an issue that likely will animate his final months in the Senate, along with other judiciary matters, which, aides said, have been his primary focus since the electoral defeat. Though that is partly due to the importance of the Kagan hearings, it also shows his commitment to the committee, which he chaired from 2005-07.

Mr. Specter, despite assurances from leadership, lost all his prized seniority during his party switch. But on the Judiciary Committee, Sen. Richard Durbin, D-Ill., handed Mr. Specter the chairmanship of the subcommittee on crime and drugs, and Mr. Specter later persuaded six Democrats to let him leapfrog them in the seniority order.

"To be a member of the Judiciary Committee and be a part of the process that helps develop the judiciary is I think of great importance" to Mr. Specter, said Courtney Boone, a former Judiciary Committee staffer under Mr. Specter who now works for U.S. Steel in Pittsburgh.

"He is tireless in his efforts and is always talking about it, and I can see him working just full-tilt, that the last day will be as hard-working as the first day."

Philadelphia attorney and longtime friend Stephen Harmelin said that's because Mr. Specter is so adamant about maintaining the powers of Congress.

"Every time he perceives that the Supreme Court is attempting to diminish either the authority or the accomplishments of the legislative branch, he gets very worked up," Mr. Harmelin said. "The United States Senate ends up -- with both Republicans and Democrats -- as his client. He is there to defend them."

Because of his primary loss to Rep. Joe Sestak, Mr. Specter will only be able to defend them until January. Yet Mr. Harmelin said his friend has shown little outward sign of the effects of the loss.

"He would be less than human if it wasn't very hurtful," Mr. Harmelin said.

"He's never entered a campaign or any endeavor to lose. I'm sure it's painful, but he does not burden his friends with a long face. He's still great company and one of the smartest guys I know."

Mr. Specter, 80, has been coy about his post-Senate plans and how his final months there will play out.

Mr. Harmelin said Mr. Specter has told him only, "I want to remain productive."

Daniel Malloy: dmalloy@post-gazette.com or 1-202-445-9980. Follow him on Twitter at PG_in_DC.
Washington correspondent Daniel Malloy writes the "Pittsburgh On The Potomac" blog exclusively at PG+, a members-only web site of the Pittsburgh Post-Gazette. Our introduction to PG+ gives you all the details.
First published on July 5, 2010 at 12:00 am