Specter resurrected.

Specter resurrected.

Specter resurrected.

The law, lawyers, and the court.
Nov. 19 2004 6:05 PM

Specter Resurrected

Sworn fealty to the president as the answer to everything.

It's easy to forget how radical a document the U.S. Constitution really is. It demands no oath of fealty to the president or even to God. Officeholders swear instead to uphold the strange, ambiguous, open-to-interpretation document that is the Constitution itself. This is a radical notion because it allows for individual judgments about what that Constitution means—and recognizes that sorting that meaning out can sometimes be a messy business.

It's worth recalling all this, as we are reminded yet again that neither individual judgment nor messiness seems to be tolerated by the current administration. Sen. Arlen Specter saved his seat as the next chairman of the Senate Judiciary Committee by signing a pledge—a pledge that had to be drafted, then redrafted to the specifications of the GOP leadership. Specter had the temerity to offer a descriptive statement after the election—not on its face a warning or a normative declaration of his own intentions, but the obvious observation that "When you talk about judges who would change the right of a woman to choose, who'd overturn Roe v. Wade, I think [their confirmation] is unlikely," he said. "The president is well aware of what happened, when a number of his nominees were sent up, with the filibuster." He has said that whether or not he'd vote to confirm judicial nominees "obviously depends on the president's judicial nominees. ... I hope that I can support them."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Following the firestorm, the pray-in, the retractions, and the bloodletting, Specter's endorsement could come only after he'd agreed, in writing, to "not use a litmus test to deny confirmation to pro-life nominees" and that he had "no reason to believe that I'll be unable to support any individual President Bush finds worthy of nomination." Over his initial objections, he further pledged to support the so-called "nuclear option" to put an end to filibusters: "If a rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rules changes with 51 votes," he said.

Just to clarify: In order to claim the chairmanship of the Judiciary Committee, Arlen Specter was forced to abandon future personal or independent judgment—the very judgment the people of Pennsylvania elected him to exercise. He has pledged—in advance of knowing who they are—to endorse the president's judicial nominees and to vote for a highly controversial GOP rule change to end filibusters and effectively terminate dissent of any sort in the Senate. Is it ironic that judicial nominees may not speculate at their confirmation hearings about how they will vote in future cases, but the chairman of the Judiciary Committee himself cannot be seated until he's pledged in advance to confirm those unknown nominees?

This new national requirement for an oath of presidential fealty seems to extend to judges as well, following John Ashcroft's stupid statement last week that judges who hold the Bush administration to any type of constitutional restrictions in the war on terror "put at risk the very security of our nation in a time of war." Ashcroft did not specify which judges he was sliming, but it's clear his statements include U.S. District Judge James Robertson, who ruled on Nov. 8 that the special military trials for detainees were unlawful absent meaningful procedures to evaluate whether they were legally held in the first place, as well the Supreme Court justices who found unconstitutional the president's claim that he can hold enemy combatants indefinitely without due process or access to counsel.

Just to clarify: Courts that don't interpret the law in the ways the president wishes to have it interpreted are, in the view of the attorney general, no longer performing their judicial function. Loyal judges should uphold not the Constitution but the rule of the president.

The framers of the Constitution understood that checks and balances, independent judicial review, and freedom to dissent marked the difference between a democracy and a monarchy. All that complexity was embodied in the Constitution itself—not in the person of the president. When elected officials swear to uphold the Constitution, it's not just another tired election promise. It's their one promise that keeps us most free.