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.]