Former Senator Arlen Specter, who died Sunday at age 82, 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, legal scholars say.
“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 Robert 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.
The Bork confirmation was part of the steady process of lending a lot more visibility to Supreme Court nominations, said Russell Wheeler, a Brookings Institution fellow who has studied Senate judicial confirmations for decades. The shift in confirmations was almost inevitable, a complex evolution of increased polarization between the political parties and opening up the process to television coverage, Wheeler said.
Specter’s role put him on the forefront, with a starring role in what Wheeler says are the two most controversial confirmation hearings since they were televised: Bork and Clarence Thomas.
He was always keenly interested in what potential justices thought about the right of privacy and abortion, how courts were adjusting to technology, and pushing for video cameras in the Supreme Court, Gerhardt said.
But after becoming judiciary committee chairman, Specter “was a little more deferential to nominees than he would have been otherwise,” Gerhardt said. “You cannot overlook the fact that in the [Clarence] Thomas hearings, he might have leaned too far in protecting the nominees.”
Specter aggressively questioned attorney Anita Hill during Thomas’ confirmation hearings in 1991, a hint of his days as a prosecutor, as she alleged Thomas had sexually harassed her. The move angered women’s rights groups and almost cost him re-election.
“I think in a way he was trying to find a way to ensure the Senate was independent, but not overly so or abusively so,” Gerhardt said. “I think he was trying to do what he could to depoliticize those hearings as best he could.”
By the time he lost a bid for re-election in 2010, he had played a role in 14 Supreme Court confirmation hearings.
Over the years, Specter had fought two previous bouts with Hodgkin’s disease, overcome a brain tumor and survived cardiac arrest following bypass surgery. Specter died at his home in Philadelphia from complications of non-Hodgkin’s lymphoma, said his son Shanin, the Associated Press reported.
President Barack Obama ordered flags flown at half-staff Tuesday, the day of Specter’s funeral.
Specter had a genuine concern for the federal courts, Wheeler said. He was a moderate, and so he was distraught by the court bashing that was going around. In 2009, he wrote an opinion piece for the NLJ advocating open up the Supreme Court to cameras.
In his farewell address to the Senate, which he called his “closing argument,” Specter made a final pitch for bringing cameras into the Court. By cavalierly overturning acts of Congress, Specter said, the Supreme Court has been “eating Congress’ lunch” for years.
“Congress’ response is necessarily limited in recognition of the importance of judicial independence as the foundation of the rule of law,” said Specter on the floor of the Senate. “But Congress could at least require televising the Court proceedings to provide some transparency to inform the public about what the Court is doing since it has the final word on the cutting issues of the day. Brandeis was right when he said that sunlight is the best disinfectant.”