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Tuesday, September 06, 2005

Specter again floats the notion that Roe is a "superprecedent"

Back on July 24th, I posted at some length on an NYT op-ed by the Chairman of the Senate Judiciary Committee, Sen. Arlen Specter (R-PA), in which he'd used a term entirely unfamiliar to me — "superprecedents." Others in the blogosphere also weighed in with the results of their own inquiries and research, most of which I believe ended up being linked either in my post and its update or else in its comments. Although the term "superprecedents" was apparently used in a different context and with a clearly different meaning in some law review articles in past years, the closest precedent (so to speak) for the use of the term — at least in the sense that Sen. Specter seemed to be using it — appeared to be a very brief reference in a separate opinion in Richmond Medical Center for Women v. Gilmore, 219 F.3d 376 (4th Cir. 1998), written by Fourth Circuit Judge (and oft-rumored potential SCOTUS nominee) Michael Luttig.

In explaining why he was voting to dissolve a previously issued stay pending appeal in one of the partial birth abortion cases, Judge Luttig speculated that the Supreme Court perhaps "intended its decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy." (Boldface mine, not Judge Luttig's.) My reaction, both then and now, was that if Sen. Specter thought Judge Luttig's reference to "super-stare decisis" somehow was announcing a new legal doctrine that would limit the Supreme Court's ability to reconsider and potentially to overrule either Casey or Roe v. Wade, he was asking an awfully slender reed — an almost off-hand reference by a single judge not yet even nominated to serve upon, much less speaking for, the Supreme Court — to bear an enormous weight.

But whatever he actually meant, I was relatively certain that Sen. Specter was very deliberately and calculatedly using the NYT op-ed to lay groundwork for some position he intended to take, or argument he intended to make, during Judge John G. Roberts, Jr.'s Senate confirmation hearings. And an article in tomorrow's WaPo now confirms that much:

There are advantages to being Senate Judiciary Committee chairman, and Arlen Specter used them yesterday [i.e., Tuesday, Sep. 6th] to sit down with the man nominated to be chief justice of the United States and to quiz him about abortion, consensus-building and other topics....

"I talked to him about consensus-building," the senator said. "He said that was something that he thought was important" and will be a priority if he is confirmed.

Specter said he also told Roberts that the 1973 landmark abortion rights case Roe v. Wade has been followed by 38 Supreme Court rulings meant to refine or clarify its guidelines, and he asked, "Is Roe a super-precedent?"

And the nominee's reply? "He didn't say," Specter said. Even a committee chairmanship, it seems, has its limits.

This article will apparently be buried back on page A09 of tomorrow's WaPo print edition, and the reference to Roe as a "superprecedent" is tucked in at its end. But my overwhelmingly strong hunch is that this is more deliberate preparation by Sen. Specter — another step in a comprehensive plan he's methodically attempting to execute. But a plan for what?

Now, it's entirely possible, and indeed quite likely, that before his meeting today with Sen. Specter, Judge Roberts had read Sen. Specter's NYT op-ed from July. If, as many have suggested, he's retained his "managing editor-type personality" from his Harvard Law Review days, I'd not be surprised if Judge Roberts cocked an eyebrow — bemused, perplexed, or otherwise — when he saw Sen. Specter's reference to "superprecedents" then. And there's been speculation in the blogosphere that Judge Roberts is himself a reader of blogs, and my previous post did draw some links and commentary from blogs with wider readership than mine usually has. In any event, Judge Roberts might have seen this informal interview question from Sen. Specter coming. And perhaps Judge Roberts wasn't stumped, but was rather being cagey and playing his cards close to the vest in not giving Sen. Specter an answer yet — or at least not giving him an answer intended by one or both of them for quotation and attribution. Nevertheless, the gun having been brandished in Act I, and now having been discharged into the air (but without appreciable effect) in Act II, I think it's pretty certain that Sen. Specter will shoot it off again in Act III — that is, some time next week in the Judiciary Committee hearings.

I'm quite certain that Judge Roberts is too diplomatic to say then, in public anyway, what I said in my first post — which basically was "Did you just make that up, Arlen? What've you been smokin', Senator?" I'm almost as certain that Judge Roberts will resist any attempt — whether from Sen. Specter on the Republican side of the aisle, or from the Leahy-Kennedy-Schumer-Biden wing on the other side — to get Judge Roberts to pre-commit as to how he'll vote when and if Roe, Casey, or any other particular precedents are reconsidered.

What I can't predict is whether Judge Roberts will "play along" with Sen. Specter and pretend that this particular term, or the vague concept that Sen. Specter seems to have associated with it in his own mind, is something that's actually been recognized in prior caselaw of the United States Supreme Court. I'm not suggesting that Judge Roberts be insulting or rude; but I frankly hope he doesn't go very far in humoring Sen. Specter. Because the straightforward, honest, and indisputable fact is that there's no Supreme Court precedent on "superprecedents." And I would be enormously surprised — stunned, shocked, dumbfounded — if Judge Roberts doesn't already know that to an absolute certainty.


UPDATE (Wed Sep 7 @ 9:45am): Terry Eastland recently anticipated Sen. Specter's continuing use of the term "superprecedents" in the Weekly Standard; his terrific piece is subscription-only, but an online teaser appears here. [Edit: Full version's now online and free, here.]

Posted by Beldar at 11:59 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Specter again floats the notion that Roe is a "superprecedent" and sent a trackback ping are listed here:

» Reader email re Roberts from ProfessorBainbridge.com

Tracked on Sep 7, 2005 10:48:14 AM

» "Super-stare decisis": "a term that hasn't found its way into the Supreme Court opinions yet" from BeldarBlog

Tracked on Sep 13, 2005 9:02:45 PM

» "Super-stare decisis": "a term that hasn't found its way into the Supreme Court opinions yet" from BeldarBlog

Tracked on Sep 13, 2005 9:06:18 PM


(1) Dave Schuler made the following comment | Sep 7, 2005 9:11:15 AM | Permalink

Some of the animals are more equal than others.

(2) Geek, Esq. made the following comment | Sep 7, 2005 10:58:53 AM | Permalink

Why is Roberts so coy on the issue of abortion? It's not like people don't already know how he'll vote when the issue comes up.

My theory is that this talk of super-precedent is all about Griswold, and whether Roberts would abolish the right to privacy that most Americans have enjoyed for their entire life.

(3) Thorley Winston made the following comment | Sep 7, 2005 11:42:40 AM | Permalink

Roe’s probably part of it, but I think we ought not to discount the concern by the Left that some of the decisions from the New Deal courts (e.g. Wickard) regarding the Commerce and General Welfare Clauses might be either overruled or significantly curtailed by a Roberts Court.

Of course the irony is that those decisions (made largely after FDR threatened to pack the Court) pretty much overruled about a hundred or so years of precedent seems to be lost on those who would enshrine it as “superprecedent.”

(4) Whitehall made the following comment | Sep 7, 2005 12:33:26 PM | Permalink

This does seem daft on Spector's part.

If he is so concerned about abortion rights, why doesn't and his colleagues ensure that there is a federal constitutional right to abortion by proposing a constitutional amendment to that effect?

It worked for Prohibition - for a while.

The answer is, of course, that a defeated amendment would undercut the judicial status quo.

(5) craig mclaughlin made the following comment | Sep 7, 2005 2:09:32 PM | Permalink

I wonder if Senator Specter considered Plessy v. Ferguson superprecedent when he was at Yale?

(6) Grant made the following comment | Sep 7, 2005 2:18:23 PM | Permalink

Specter is attempting to provide himself with a valid reason to vote against Roberts. It won't work.

(7) Thorley Winston made the following comment | Sep 7, 2005 4:49:22 PM | Permalink

Specter is attempting to provide himself with a valid reason to vote against Roberts. It won't work.

I don’t think so because he knows that if that should that happen, his remaining time as Chair of the Senate Judiciary Committee will be measured in nanoseconds.

(8) John made the following comment | Sep 8, 2005 1:46:30 AM | Permalink

Great post.

(9) nk made the following comment | Sep 8, 2005 8:21:28 AM | Permalink

Ronald Reagan who was an honest man, both morally and intellectually, lobbied very hard for a Right to Life Amendment. I wonder if he did not, in his heart of hearts, consider Roe and Griswold superprecedents.

My constitutional law professor went on to become a director of the ACLU and I left law school with the belief that the Bill of Rights confers a general right to liberty. After 23 years I have still not been cured notwithstanding that no judge has ever agreed with me.

It is true, as opponents of Roe say, that the Constitution nowhere mentions privacy -- but it sure says "liberty" and "free" more than once. So getting back to Reagan, if he, as the individualist cowboy that he was, thought that there was a general right to liberty, he also must have recognized that it would be a broader and more profound right than Griswold's and Roe's "privacy", ergo, the necessity of a Right To Life Amendment.

Even if all the foregoing is nonsense, isn't it more than a little bit unseemly for alternating conservative and liberal presidents to be trying to pack the Court with pro-choice or pro-life judges? How about this for a jurisprudential Tim Burton movie -- abortion being alternatively constitutionally protected and unprotected every ten years or so?

(10) Mike Gomez made the following comment | May 29, 2006 3:07:45 PM | Permalink

Arlen Specter is not to be trusted and goes to the side that is most beneficial to him. He is an unprincipled traitor to this country and wants to hand over our immigration and border policies to Mexico. The entire senate is made up of traitorous scum, and we need to wrest control from these fat cats by voting in strong 3rd party candidates who actually represent us. That's the way to make real change.

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