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Intellectual Capital: Michael McGough / Specter the survivor
Through the filibuster debate, he keeps his chairmanship and fends off his conservative critics
Monday, May 30, 2005

WASHINGTON -- Oddities abounded last Tuesday morning when Sen. Arlen Specter held a news conference to introduce "prominent members of the legal community" -- who also happened to be prominent conservative Republicans -- to echo his call for an up-or-down vote on controversial Bush judicial nominees.

First there was the time warp. Standing in front of a portable partition plastered with pleas for an up-or-down vote for the nominees, Specter and his supporting cast were calling for something the bipartisan group of senators known as the Gang of 14 had agreed on the night before -- votes for U.S. Court of Appeals nominees Janis Rogers Brown, Priscilla Owen and William Pryor. It was a case of opening the barn door after the horses, or judges, had escaped.

 
   
Michael McGough is an editor at large in the PG's National Bureau (mmcgough@
nationalpress.com
).
 
 
It was also a bit eerie -- though perhaps appropriate -- that the Republicans' anti-filibuster press conference was held in a conference room named for Democratic President Lyndon B. Johnson. LBJ, whose craggy visage peeked out from behind the portable backdrop pushing an up-or-down vote, was frustrated by a filibuster in 1968 that blocked his nomination of Abe Fortas to be chief justice.

But the most surreal feature of the press conference was the love feast involving the moderate Specter and conservatives like Rep. Dan Lungren, a former California attorney general who would like to see Janis Brown, the most ideologically incendiary of the Bush nominees, on the Supreme Court, not just the U.S. Court of Appeals for the district of Columbia, where she is headed under the Gang of 14's compromise.

In speeches, Brown, a California Supreme Court justice, has pined for the days when the "nine old men" on the Supreme Court struck down New Deal social legislation because it violated the liberty of contract. As Brown put it in a now notorious 2000 address to the Federalist Society at the University of Chicago Law School, "the New Deal ... inoculated the federal Constitution with a kind of underground collectivist mentality."

But then again, Lungren standing shoulder to shoulder with Specter made sense. After all, Specter has defended Brown by saying that "if political or judicial officials were rejected [because of] provocative/extreme ideas in speeches, none of us would hold public office."

Is this the same Specter who almost was deprived of the chairmanship of the Judiciary Committee because of his prediction in the afterglow of his re-election that the Senate probably wouldn't confirm a Supreme Court nominee opposed to the Roe v. Wade ruling legalizing abortion?

Specter got the chairmanship to which seniority entitled him by eating a certain amount of crow. Liberals upset at his support for Owen, Brown and Pryor think Specter is still abasing himself with the right.

But that underestimates Specter's political skills. Even as he was being praised for his statesmanship by conservatives on Tuesday, he was saying nice things about the Gang of 14's compromise -- the work of senators with "conscience," he said -- and teasing reporters by leaving open the possibility that, if there had been a vote to detonate the nuclear option and abolish filibusters of judicial nominees, he might have sided with the Democrats.

On Tuesday Specter denied a report that he had indicated to the Republican leadership that he would vote to abolish filibusters of judicial nominees. He had made a decision on how to vote, the senator said, but it would remain a secret so as not to undermine his role as an arbiter in future disputes over judges.

He said the statement he drafted explaining his decision "is under seal in an envelope in a file cabinet which is locked in a location that is secret," though not apparently the remote location where Vice President Dick Cheney hides out during terrorist alerts.

It's anybody's guess what was in that statement, but it's interesting that Specter in referring to the "nuclear/constitutional option" utilized both the scary atomic metaphor favored by Democrats and the positive term employed by Republicans (who discovered recently that the Constitution requires an up-or-down vote on judges).

In truth, Specter has straddled both sides of the filibuster issue almost from the start. In a series of speeches on the Senate floor, he has spread the blame for the impasse between both parties, though it was the Democrats, he said, who started the fight by slowing and in some cases blocking the confirmation of President Ronald Reagan's nominees to the appeals court.

Specter repeatedly has cast himself as the voice of reason in a Senate where partisan bickering and back-stabbing threatened "mutual assured destruction." Pleasing his fellow Republicans, he called early this month for successive up-or-down votes on Bush's controversial nominees. But there were nods and winks to the Democrats, such as Specter's proposal that the two parties allow their members to cast what British parliamentarians call "free" votes on both filibusters and the nuclear option.

Seemingly evenhanded, that proposal if adopted by the Republican caucus would have allowed Specter to vote against the nuclear/constitutional option -- a prerogative he carefully preserved for himself even as he was devouring conservative crow early in the year.

Amid all the turmoil (and while facing health problems), Specter has clung to both his chairmanship and national prominence with a doggedness worthy of the Vicar of Bray. The vicar was the 16th century English clergyman who kept his pastorate as the monarchy seesawed between Protestantism and Catholicism. He is memorialized in a poem with this refrain:

And this is law, I will maintain
Unto my Dying Day, Sir.
That whatsoever King may reign,
I will be the Vicar of Bray, Sir.

Specter has held on to his chairmanship during a time when Senate Majority Leader Bill Frist was in ascendance and in the ensuing arrangement crafted by John McCain and other more centrist members of the Gang of 14. The senior senator's survival skills are old news for Pennsylvanians; now the rest of the country can appreciate them.

First published on May 30, 2005 at 12:00 am