Ken Klukowski and Ken Blackwell: Specter's Switch Means the Future of the Supreme Court Hangs In the Balance


ACRU Staff


May 1, 2009

This column originally appeared on the Fox Forums on April 28, 2009.

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.

Since noon today 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.

All eyes are now on both Senator Specter and Minnesota, as the future of the American judiciary hangs in the balance.

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.

The outcome of the Minnesota election for the U.S. Senate between Senator Norm Coleman and acidic far-left comedian Al Franken is still being fought in court. Out of nearly 2.9 million votes cast, the candidates are within a few hundreds votes of each other. First, Senator Coleman had the lead for reelection. Then recounts and challenges over various ballots ensued, and Al Franken took a razor-thin lead.

The election went to court over the recount procedures. A three-judge Minnesota court found in Mr. Franken’s favor, and in June the Minnesota Supreme Court will hear arguments from Senator Coleman. If Al Fraken prevails there, Senator Coleman’s only chance will be taking the matter into the federal court system.

There is a solid basis for federal litigation. Some of the Minnesota counties are employing differing standards on which ballots to count, and the election outcome could easily switch back to Senator Coleman’s favor if certain standards were applied uniformly statewide.

The use of different standards raises an issue under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. And because the right to vote is a fundamental right under constitutional law, any equal protection issues subjects the counties’ procedures to what is called “strict scrutiny,” an extremely rigorous and difficult standard for the government to satisfy. If the counties’ decisions do not meet strict scrutiny, they will be struck down as unconstitutional.

Should this case go all the way to the U.S. Supreme Court, the issue in the Coleman-Franken case is very similar to the issue that decided Bush vs. Gore in 2000, and with it the presidential election. It would be up to the Supreme Court as to whether to take the case, where Senator Coleman would then have a good chance of winning.

If Senator Coleman won in the U.S. Supreme Court, two outcomes are possible. First, the Court could order a statewide recount with uniformly consistent standards, which could well give the lead back to Senator Coleman. Or second, if ballots are lost or a perfect recount is otherwise impossible, a new election could be called. Should that happen, Senator Coleman may well prevail again.

So in the end, the decision as to whether there is a filibuster-proof majority in the U.S. Senate for President Obama’s Supreme Court (and lower court) nominees may rest with the Supreme Court. That’s ironic.

It cannot be overemphasized that Arlen Specter has not yet shown how he will respond to Barack Obama’s judicial nominees. He may yet surprise those on both the right and left by asserting a moderate voice, should President Obama nominate a strident liberal as many experts anticipate.

So now all eyes are on both Senator Specter and Minnesota, as the future of the American judiciary hangs in the balance.



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