Editor’s Note: This article was co-authored by Ken Klukowski, a fellow and senior legal analyst with the American Civil Rights Union.
Arlen Specter’s switch to the Democratic Party is a political earthquake that will have far-reaching consequences for a host of policy and political issues. Of all these, none is more significant than the potential consequences for the United States Supreme Court. As a result of this decision, the future of the Supreme Court may ironically rest with… the Supreme Court.
Pundits have waxed eloquent on how Senator Arlen Specter’s decision to switch to the Democratic Party going into his 2010 Pennsylvania reelection bid changes the balance of power in Washington, D.C. Many issues were hanging by a single vote in the Senate. One issue that has not received as much attention, but will in the days to come, is the future of our nation’s courts.
Senator Specter has always been a crucial figure in the ongoing struggles over judicial nominations. In 1987, Senator Specter was one of the pivotal votes in denying confirmation to Judge Robert Bork to be a justice on the U.S. Supreme Court. (That seat eventually went to Justice Anthony Kennedy.) On the other side of the issue, Senator Specter was also key in confirming Justice Clarence Thomas in 1991, and as chairman of the Senate Judiciary Committee in 2005 and 2006 he played a central role in the confirmation of Justice Samuel Alito.
Senator Specter has played a similar role in the fights over numerous federal appeals judges and other judicial nominations, with the same unpredictable positioning. Few if any senators have had such a rollercoaster career at the center of judicial confirmation fights. Conservatives have been deeply concerned about what Senator Specter would do in any given situation, and liberals have pleaded with him to repeat his performance with Judge Bork.
Now Arlen Specter will be a Democrat, giving that party fifty-nine votes in the U.S. Senate at a time when a liberal Democrat who was also president of the Harvard Law Review occupies the Oval Office. If Senator Specter chooses to support cloture on the nomination of all of President Barack Obama’s judicial nominees, then the only possible check that Republicans can have will ride on the outcome of another U.S. Senate seat, the open seat in Minnesota.