Saturday, January 07, 2006


Senator Specter's Super-Duper Litmus Test

(Published by the Salt Lake Tribune Jan. 8, 2006)

If you watch news reports this week of the Senate’s Supreme Court confirmation hearings for Samuel Alito you are likely to catch a performance of Sen. Arlen Specter’s “Super-Duper Precedent” show. The pilot aired during similar hearings held last September for John Roberts. If you are old enough to remember Johnny Carson playing the role of Art Fern with his pointer and tripod charts, Specter’s routine will be like a flashback. In the pilot, Specter’s tripod held an immense chart highlighting the handful of opportunities the Supreme Court had in the last 33 years to overturn Roe v. Wade but didn’t. Specter used his pointer and chart to tutor Roberts and the nation on the principle of “stare decisis,” or legal precedent. However, after impressing us with his grasp of complex Latin, Specter resorted to “valley girl” English, asking Roberts, “Would you think that Roe might be a super-duper precedent?” That’s right. In his effort to ensure that Chief Justice Roberts would not vote to overturn the legal practice of abortion, a well-trained lawyer and distinguished senator invented a new legal term: the “super-duper precedent.”

Sen. Specter graciously handled the humor his remarks generated. But the principle he espoused—that once the Supreme Court decides something it should never be debated again—is not a laughing matter. If Specter truly believes that once the Supreme Court decides something it becomes untouchable, imagine what he would have been arguing in the Senate of 1860. Imagine the chart he could have constructed to show the stare decisis foundation for the practice of slavery. After all, it had been the recognized law of the land for more than 70 years. Or imagine the senator’s chart to deny women the right to vote in 1920. With more than 130 years of precedent, his staff would have been burning the midnight oil to prepare a chart for his civics lesson to the nation. Would a time traveling Sen. Specter have done such a thing? Of course not.

Specter and his pro-abortion colleagues know that we should respect decisions of the Supreme Court, but we should not be under the illusion that every decision made by the Court is morally sound, or for that matter, even legally correct. The Supreme Court is an assemblage of nine legal experts who have the difficult task of determining the constitutionality of issues that are by definition complex and difficult to reconcile with the Constitution. It should not be surprising that more often than not the Court is divided in its opinions. Many of the most important decisions of the Court have been decided by a vote of 5 to 4. Does that mean the four dissenting justices were legally incorrect, less intellectually capable or morally inferior to their five colleagues? No. What it really indicates is that men and women of great legal skill, considerable intellect and a sincere desire to do what is right can reach different conclusions when considering complex legal issues. And therefore, decisions of the Supreme Court are far from infallible.

Sen. Specter and his colleagues who insist that Roe v. Wade should be upheld because of legal precedent are doing it out of political expediency, not legal principle. In fact, nearly all of them have openly condemned Court decisions not in harmony with their own political philosophies. Would Sen. Specter and his colleagues who are pro-abortion show the same unanimous support for legal precedent as applied to the Supreme Court’s decision in 2000 that stopped the recount in Florida and upheld the election of President Bush? Who do they think they are kidding? Stare decisis is nothing more than a political litmus test to ensure that any candidate to the Supreme Court will agree to uphold Roe v. Wade. And we’ve been told by the same group of senators that any litmus test used to identify and appoint judges who might be anti-abortion is unacceptable. I guess what Sen. Specter and his pro-abortion colleagues really mean to say is that when an abortion litmus test is performed a blue result is acceptable and a red result is not. I don’t know about you, but it sounds like super-duper hypocrisy to me.

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