Thursday, November 04, 2004

More on Arlen

Specter is disputing the media account of his comments.

ODOM: Is Mr. Bush, he just won the election, even with the popular vote as well. If he wants anti-abortion judges up there, you are caught in the middle of it what are you going to do? The party is going one way and you are saying this.

SPECTER: When you talk about judges who would change the right of a woman to choose, overturn Roe v Wade, I think that is unlikely. And I have said that bluntly during the course of the campaign and before. When the Inquirer endorsed me, they quoted my statement that Roe v Wade was inviolate. And that 1973 decision, which has been in effect now for 33 years, was buttressed by the 1992 decision, written by three Republican justices-O'Conner, Souter, and Kennedy-and nobody can doubt Anthony Kennedy's conservativism or pro-life position, but that's the fabric of the country. Nobody can be confirmed today who didn't agree with Brown v. Board of Education on integration, and I believe that while you traditionally do not ask a nominee how they're going to decide a specific case, there's a doctorate and a fancy label term, stari decisis, precedent which I think protects that issue. That is my view, now, before, and always.
Paying attention to precedent is important for judges to do, but it is not the end all be all. Bad decisions are bad decisions. Under the view that the Supreme Court should not overturn other cases it disagrees with, Plessy v. Ferguson and "separate but equal" would be the law of the land. That case was overruled by Brown v. Board of Education, the case that Specter touts as so sacred that its untouchable. It is, but not untouchable because it is precedent. There are a lot of precedents. Brown is untouchable because the nation has coalesced around the idea the "separate but equal" doesn't work, and is exactly what the 14th Amendment was passed to protect against. Roe v. Wade is not in that class of cases. It is still extremely controversial 31 years later. By 1985, was Brown controversial? No, because it wasn't too distant from the what the constitution actually says, though some do quibble with the some of the rationale. There were no emmanations or pnumbras, etc. producing rights not clearly set out in the constitution. Brown didn't sanction death of unborn children. Roe does, and that is why its controversial.

Either way, I don't believe in judicial litmus tests for the bench. And I don't want Arlen Specter blocking Bush nominees in committee because they may DISAGREE with him on an issue. So long as the nominees aren't scumbags, and are otherwise qualifed to do the work they are up for, they should be confirmed.

Judge for yourself.