Former U.S. Senator Arlen Specter, who died Sunday at age 82, was a legal giant in Pennsylvania who greatly shaped the federal judiciary in the state for more than three decades, lawyers told The Legal.
In addition to exercising great care regarding the selection of judges to serve on the U.S. Court of Appeals for the Third Circuit and the U.S. District Court of the Eastern District of Pennsylvania, Specter was the first one to disconnect politics from hiring decisions for the Philadelphia District Attorney’s Office, interviewees said.
“In many ways the senator always viewed the world to some extent as an outsider,” said Stephen J. Harmelin, co-chairman of Dilworth Paxson and who had been friends with Specter for 45 years.
“He was never a get-along, go-along type. He held strongly to his views of what was right and appropriate.”
Third Circuit Judge Anthony J. Scirica said, “His influence will be lasting. He always sought out the best lawyers to recommend to the president and lawyers who shared his vision of an incorruptible and fair-minded judiciary.”
Scirica, who was the chief judge of the Third Circuit from 2003 to 2010, also said Specter was a “great friend of the judiciary” in terms of ensuring judicial vacancies were filled and that the judiciary had resources.
U.S. District Senior Judge Jan E. DuBois of the Eastern District of Pennsylvania said Specter’s success in getting confirmation of federal judges in Pennsylvania was unique.
That part of Specter’s legacy is missed with six vacancies in the Eastern District and two vacancies in the Middle District, DuBois said.
“By reputation the Pennsylvania district courts, the federal courts in Pennsylvania, rank at the very top of all federal trial courts,” DuBois said. DuBois attended Yale Law School with Specter.
U.S. District Judge Michael M. Baylson of the Eastern District of Pennsylvania said that one of Specter’s key accomplishments was starting a bipartisan nominating commission with the late Senator John Heinz in which 15 citizens, including lawyers and nonlawyers, would interview candidates for a judicial vacancy, and the senators would make a recommendation to the president out of three to six candidates recommended by the commission.
Specter was famous for using his experience as a former prosecutor to ask tough questions of federal judiciary nominees undergoing hearings in the Senate Judiciary Committee.
When Specter grilled Judge Robert Bork during his confirmation hearings to the U.S. Supreme Court in 1987, Specter altered the course of his career and of Bork’s career, Legal affiliate Legal Times reported. After immersing himself in Supreme Court jurisprudence and in Bork’s voluminous writings, Specter pressed Bork during the hearing on his ability to apply precedents Bork fundamentally disagreed with.
Specter’s decision to oppose Bork seemed to spell the end of the nomination, and Specter’s force on the Judiciary Committee increased.
While Specter played a leading role in blocking Bork from being confirmed, he played a leading role in ensuring Justice Clarence Thomas was confirmed four years later. Specter was criticized by Democrats for accusing Anita Hill at Thomas’ Supreme Court nomination hearings of committing “flat-out perjury.”
Stephanie Middleton, a staff director for the Senate Judiciary Committee’s Republican caucus from 2006 to 2009, said that Specter was relied upon by colleagues in the Senate to take a close look at nominations for judgeships around the country. Specter wanted to know if district court nominees had trial experience and if nominees for all levels would ensure civil rights were protected and would enforce the Constitution, she said.
“He did an amazingly good job staying in touch with the political side … including people out in the counties but he had very high standards,” Middleton said. “He got some amazing … judges on the bench here in Philadelphia.” Middleton is now deputy director of the American Law Institute.
It also wasn’t politically safe to cross-examine Republican nominees, Middleton said, but he “would just do it to make sure the judges confirmed or approved by the committee had what it took.”
Carolyn P. Short, a partner with Reed Smith who worked as general counsel for the Senate Judiciary Committee for 14 months, said that even though Specter was diagnosed with cancer in January 2005, he vigorously prepared for the confirmation hearings of Supreme Court Justice John Roberts as chief justice and of Associate Justice Samuel Alito by having meetings in his apartment with staffers and having meetings with competing scholars who debated key legal issues.
By asking Roberts if it was not true that overturning Roe v. Wade would shake the legal foundations of the United States, “he got Justice Roberts to say that it’s not for the Supreme Court to reach out and grab and change the social fabric of the country and that was as close as you were going to get him saying he wasn’t going to be in favor of reversing Roe v. Wade,” Short said.
Specter also took unpopular positions during that time, Short said, including advocating for due process for Guantanamo Bay detainees, and objecting to a domestic surveillance program instituted under former President George W. Bush.
Legal affiliate The National Law Journal reported that legal scholars said Specter became one of the most visible players in the reshaping of the Supreme Court confirmation process, and in turn influenced the very kind of justices who are now appointed to fill the nation’s highest court.
“I don’t know if he was always comfortable with that,” said Michael Gerhardt, a professor at the University of North Carolina School of Law who has been an adviser to senators or the White House during confirmation hearings for five of the nine current justices.
In 1987, Specter was one of the Republicans willing to say no to a Republican president during the high-profile confirmation hearings of Bork, Gerhardt said. Specter’s questioning uncovered Bork’s views on privacy rights and the Constitution, gave him a starring role in the Senate, and contributed to why Bork was not confirmed.
“I think by standing up and voting no on Bork, he made it less likely for extreme ideologues on one end of the spectrum to be viably considered for the court,” Gerhardt said.
Specter remained a forceful presence on the Senate Judiciary Committee during confirmation hearings, got a reputation for asking tough questions, and became part of a movement in the Senate to become more independent in evaluating Supreme Court nominees, Gerhardt said.
A New District Attorney’s Office
When Specter served as Philadelphia district attorney from 1966 to 1974, Richard A. Sprague, who was Specter’s first assistant district attorney, said, “Arlen was probably the best district attorney Philadelphia ever had.”
Before Specter’s tenure, the hiring of assistant district attorneys was controlled by the politically connected, but “he hired based on quality and ability and integrity,” Sprague said.
Specter also stopped the practice of assistant district attorneys having law practices on the side, Sprague and Baylson said.
Specter also started a major reform–accelerated rehabilitative disposition, which has been adopted around the country, Sprague said.
Despite the fact that it was an unusual thing for a prosecutor to agree to do, Baylson said Specter saw the benefit of giving drug defendants the opportunity to serve on probation for a period of time and to have their records expunged if they stayed out of trouble.
He held staff meetings every day at 5 p.m. and he would review every case on the list to find out what had happened in the case that day, Baylson said.
Specter first entered the public spotlight when he served as an assistant counsel to the Warren Commission, including developing the theory that one bullet struck both President John F. Kennedy and Texas Governor John Connally,
Back in Philadelphia, Specter switched parties to the Republican Party and he ran for Philadelphia district attorney against his boss, James Crumlish.
Specter also had a private practice, including representing Ira Einhorn, a hippie guru whose missing girlfriend’s body was found in a large, locked black steamer trunk and who eventually fled to France nine months after getting out on bail.
Specter was an associate at Dechert from 1956 to 1960 and a partner at Dechert from 1974 to 1979 after he lost re-election as district attorney in 1973.
Robert C. Heim, a partner at Dechert who worked with Specter when he was an associate and Specter was a partner, said that Specter was amazingly blunt and straightforward about Washington’s inside politics when he met annually with the law firm’s partners.
When he would take questions, Specter sometimes would answer with deadpan humor and you wouldn’t be sure if it was a serious answer or “Arlen putting you on,” Heim said.
“He was a very stern taskmaster, which should come as no surprise,” Heim said of working with Specter as a young lawyer. “He was intensely aware of the interplay of the facts and the law and he had strong views about how briefs should be written and how oral presentations made. But the good thing about Arlen was that even if you were just a young guy, a young lawyer, he would listen to you.”
Specter, who was elected to the Senate in 1980, switched from the Republican Party to the Democratic Party in 2009, saying he was “increasingly at odds with the Republican philosophy,” according to the Associated Press.
Democratic voters picked then-U.S. Representative Joe Sestak over Specter in the primary in 2010.
Because Specter stuck by his views of what he saw as right, both Democrats and Republicans were never “particularly happy with all of his positions,” Harmelin said.
Specter was a moderate Republican who was liberal on social issues and conservative on economic issues, Harmelin said.
After growing up in Kansas where his father ran a junkyard, Specter often reflected his Midwest upbringing because “the casual corruption that so many people get comfortable with, he never really was able to accept,” Harmelin said.
Specter had so much “grit” that just last Thursday he taught his class at the University of Pennsylvania Law School focusing on the confirmation process, DuBois said.
Specter passed away at 11:39 a.m. Sunday at home from complications of non-Hodgkin’s lymphoma. He was first diagnosed with a cancer of the lymphatic system in 2005.
A funeral service is scheduled to be held at noon today at Har Zion Temple, 1500 Hagys Ford Road, Penn Valley, Pa. The services are open to the public, but cameras and recording devices are not allowed.
Interment will immediately follow the funeral service at Shalom Memorial Park, located at Pine and Byberry roads in Huntingdon Valley, Pa.