Specter: Bringing the Hearings to Order
Bringing the Hearings to Order
By ARLEN SPECTER
IT'S been 11 years since the Senate held confirmation hearings for a
Supreme Court nominee. With the memory of the proceedings involving
Robert H. Bork, Clarence Thomas and Anita Hill still fresh in their
minds, the American people are eager for a sense of how the hearings
for Judge John G. Roberts will play out. As chairman of the Senate
Judiciary Committee, I will try to provide an answer.
The nomination of Judge Roberts has extraordinary significance because
he will replace Justice Sandra Day O'Connor, who has been the decisive
vote in many 5-to-4 decisions on the cutting edge of issues
confronting our society. Interest groups at both ends of the political
spectrum have long been poised to fight this confirmation battle,
which could determine a victor in the so-called cultural war.
In this battle, the central issue remains Roe v. Wade, which
established a woman's right to choose. Both sides are looking for
assurances that Judge Roberts will side with them. Some senators have
stated their intention to directly ask the nominee if he would
overrule Roe v. Wade. While senators may ask any question they choose,
the nominee may answer or not as he sees fit.
The confirmation precedents forcefully support the propriety of a
nominee declining to spell out how he or she would rule on a specific
case. Abraham Lincoln is reputed to have said pretty much the same
thing: "We cannot ask a man what he will do, and if we should, and he
should answer us, we would despise him. Therefore, we must take a man
whose opinions are known."
This, of course, does not foreclose probing inquiries on the nominee's
general views on jurisprudence. For example, it would be appropriate
to ask how to weigh the importance of precedent in deciding whether to
overrule a Supreme Court decision. Some legal scholars attach special
significance to what they call superprecedents, which are decisions
like Roe v. Wade that have been reaffirmed in later cases.
Beyond the range of social issues, the hearings for Judge Roberts will
doubtless focus on other key matters like First Amendment rights,
presidential authority, Congressional power under the Constitution's
Commerce Clause, judicial restraint, civil rights, environmental law,
eminent domain and the rights of defendants in criminal cases.
With his outstanding character and admirable record of achievement,
including 39 appearances before the Supreme Court, Judge Roberts has
disarmed critics on all sides. But he must do more. The Judiciary
Committee, the Senate and the country need to know much more about his
judicial philosophy. That is why we will conduct a full and thorough
hearing that will allow sufficient time for senators to prepare and to
satisfy themselves that the nominee will uphold our constitutional
values of equality, liberty and justice.
In my discussion with Judge Roberts last week, I asked him if he would
feel comfortable with any of the customary labels - liberal, moderate,
conservative. Rejecting those categorizations, he said he would strive
for modesty. His goal was to be a modest jurist on a modest court that
understands its place in the balance of powers inherent in our
He also emphasized the importance of stability. His focus on modesty
and stability provide comfort that he would not be an activist but
would respect Congressional action and judicial precedent. Whatever
assurances may be inferred from those statements, our history is
filled with Supreme Court justices who have provided big surprises
It's been said before, but it cannot be said enough, that the hearing
will be conducted on a strictly bipartisan basis. Senator Patrick
Leahy of Vermont, the ranking Democrat on the committee, and I have
been discussing the prospects of such a hearing for months. Our
cooperative work together on other committee matters gives me
confidence that we will be able to agree on procedures, timing and
My duty as chairman is to lead an efficient, dignified hearing and
report the nominee to the full Senate. Even in Judge Bork's case, in
which the committee members (including me) voted 9 to 5 against him,
the nomination went to the full Senate. I believe that the
Constitution requires action by the Senate, rather than having the
nominee bottled up in committee - regardless of the committee's vote.
While everything I know about Judge Roberts is positive, I intend to
keep an open mind until the witnesses are heard and the committee's
deliberations are concluded. It is crucial that the public have
confidence in the fairness and deliberative judgment of the Senate,
and I am confident that we can meet our responsibilities.
Arlen Specter, chairman of the Senate Judiciary Committee, is a
Republican senator from Pennsylvania.