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Don't start a new GOP era by hanging Specter |
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By Byron York
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Posted: 11/18/04 12:00 AM [ET] |
In early May 2002, things looked grim for Brooks Smith, a federal district judge in Pennsylvania who had been nominated to a seat on the 3rd Circuit Court of Appeals.
Smith, a conservative and a favorite of home-state Sen. Arlen Specter (R-Pa.), faced an uphill climb in the Senate Judiciary Committee. Democrats controlled the committee by a thin 10-9 majority — control given to them a year earlier by the defection of Sen. Jim Jeffords (I-Vt.) — and they clearly wanted to block Smith’s nomination.
But they didn’t have much to work with. So they tried a bunch of little stuff.
First, they complained that Smith had presided briefly over a case involving a bank where his wife worked. The problem for Democrats was that Smith had quickly recused himself from the case and there was no indication that he ever did anything improper.
Next, Democrats raised a ruckus about something called the Spruce Creek Rod and Gun Club, an all-male sports club. Smith had been a member of the club before joining the federal bench, and remained a member for several years after his confirmation as a federal judge.
The National Organization for Women said Smith’s actions showed a “reckless disregard for judicial ethics guidelines,” which “call[ed] into question his ability to fairly rule on cases involving civil rights.” But that case fell apart after Republicans pointed out that former President Jimmy Carter also belonged to the club and had, in fact, written favorably about the place.
Then Democrats tried to suggest that Smith had insufficient reverence for Griswold v. Connecticut, the 1965 Supreme Court decision that struck down a state ban on selling contraceptives and later served as the foundation for the Court’s ruling in Roe v. Wade. Smith said over and over and over that he would faithfully follow the Griswold precedent, but Sen. Charles Schumer (D-N.Y.) wanted more. Schumer bugged Smith repeatedly to say not just that he would follow Griswold but that he personally thought that Griswold was a great decision and that he wholly believed in the legal reasoning behind it.
“I am assuming from your questions that you presume I have some personal quarrel with Griswold v. Connecticut,” a frustrated Smith wrote Schumer after one such harangue. “Let me assure you that I absolutely do not.”
Still, Democrats were not satisfied. Finally, they suggested that Smith had, in the words of the liberal lobbying group Alliance for Justice, “a tendency to favor corporate and other powerful interests over the interest of ordinary Americans, including some of the most vulnerable populations in this country.”
It was a classic throw-everything-at-the-wall-and-see-what-sticks strategy. And despite their inability to come up with any convincing argument why Smith should not be confirmed, Democrats had the only truly convincing argument on their side: a 10-9 majority on the committee. And as the nomination neared a vote, it appeared that they would indeed kill the nomination.
That’s where Specter came in.
Shortly before the vote, Republicans, assuming Smith would lose, planned to ask for a one-week delay to try to find a way to save the nomination. But the night before, GOP members on the committee got word from Specter that they should go ahead with the vote.
“Specter’s chief of staff calls Lott’s office this morning and says, ‘I can’t tell you why, but we don’t want you to hold over Smith,’” one Republican source said at the time. “‘We’re ready to vote.’”
Specter did not tell anyone what was going on. But Republicans knew he wanted Smith to be approved, and they simply took his word that the vote should go forward.
And so it did. And, sure enough, one Democrat, Sen. Joe Biden (D-Del.), voted for Smith, giving him the margin he needed for approval.
Biden and Specter often ride the train home to Delaware and Pennsylvania together. They’ve had lots of talks. Whatever was said in those talks, Biden broke ranks with his party to support Smith. The nomination passed the committee, and Smith was later confirmed in the full Senate.
What is the lesson of the story? That Specter can get things done when he wants to.
The question now is whether he will do so on behalf of the president’s court nominees should he become chairman of the Judiciary Committee.
There’s no way to say for sure. But it does appear that Specter has been brushed back quite a bit by the furor created when he presumed to warn the White House not to send him any court nominees he might not like.
Now, it appears Specter has the support of enough senators to become chairman — perhaps the most scrutinized chairman on the Hill. That scrutiny will be a good thing.
But in the end, it seems Republicans have decided that it’s just not a good idea to start the new Senate with a hanging.
They’re right.
York is a White House correspondent for National Review. His column appears in The Hill each week. E-mail:
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