Specter’s Rise Appears Secure

Posted November 5, 2004 at 6:44pm

The prospect of an imminent Supreme Court vacancy has dramatically raised the stakes in selecting the next Senate Judiciary chairman and added new fuel to the battle over changing Senate floor procedures on filibusters.

Sen. Arlen Specter (R-Pa.), who is in line to take over the panel, appeared to have stabilized his position late last week after complicating his elevation with a series of post-election remarks casting doubt on the confirmation prospects of any nominee who opposes the landmark Roe v. Wade ruling.

No effort emerged from within the Republican Conference last week to prevent Specter from taking the gavel, although outside conservative interest groups began a furious effort to deny Specter, a longtime supporter of most abortion rights, the chairmanship.

With conservative activists viewing their efforts at the polls as the cornerstone of the GOP’s victories Tuesday, some aides and GOP allies outside the Senate said Specter’s standing would remain solid as long as he had the support of Sen. Rick Santorum (R-Pa.), chairman of the GOP Conference and the most prominent social conservative in the chamber.

After prodding Specter to issue a clarifying statement last week — rejecting an abortion “litmus test” and citing his votes for every nominee President Bush has sent to the Hill to date — Santorum issued his own release defending Specter and providing him needed political cover.

As one GOP aide put it, Specter’s ascension to the chairmanship appears a done deal “if Santorum seems OK with it.”

The tension over the next Judiciary chairman has only grown since Supreme Court Chief Justice William Rehnquist’s announcement, on the eve of the elections, that he has thyroid cancer, and he has not been seen on the court since the announcement. In the remarks that sparked the controversy, Specter himself said he knew Rehnquist’s condition was far more grave than was initially stated and that he now believed Rehnquist would not be able to return to the court, prompting Bush’s first Supreme Court nomination.

“The Chief Justice is gravely ill. I had known more about that than had appeared in the media,” he said at the Wednesday press conference. “When he said he was going to be back on Monday [Oct. 29], it was known inside that he was not going to be back on Monday. The full extent of his incapacitation is really not known, but I believe there will be cause for deliberation by the president.”

Hoping the controversy would die down, Specter issued a second clarifying statement Friday, attacking the initial Associated Press report and citing his work with Santorum on conservative nominees from Pennsylvania. “There can be no doubt about my support for the president,” he said.

Santorum’s support for Specter is a marked contrast to his early Senate years when he tried to revoke a chairmanship from a wayward Senator — a revolt that ended with the Conference agreeing to six-year limits on holding gavels.

In addition to Santorum’s apparent continued support for Specter, a strategist familiar with the efforts of conservatives on judicial nominees noted that so far the most prominent on the right have remained silent and not called for denying Specter the gavel. The strategist said pressure against Specter would build if he loses the support of activists such as C. Boyden Gray, the former White House counsel to the first Bush administration and the founder of the Committee for Justice, and Edwin Meese, an attorney general in the Reagan administration.

So far that support seems firm, and Hill aides said to deny Specter the chairmanship would most likely require a revolt from Republicans on Judiciary. Internal Conference rules lay out a process for selecting a chairman, but the Senate GOP has had a long-standing if unofficial policy that allows the Republican with the most seniority on the committee to become chairman.

Sen. Orrin Hatch (R-Utah) is up against the six-year limit on serving as chairman, with Sen. Chuck Grassley (R-Iowa) next in line but already chairing what is widely viewed as a more influential panel, the Finance Committee.

Officially, Conference rules call for a secret ballot of committee members to name a chairman, and that name is then forwarded to the full Conference for ratification. A majority of both the committee and Conference are needed to become chairman.

If just five of the 10 GOP Judiciary members refused to approve of Specter’s chairmanship, he could be denied the panel — but that would be the first time in recent memory that such a move was taken and would likely spark an outraged reaction from veteran committee chairmen protective of the seniority system.

The last time the Republican Conference faced a real battle for a chairmanship was after the 1996 elections when Sen. Jim Jeffords, then a Republican, was in line by seniority to take the helm of what is now the Health, Education, Labor and Pensions Committee. He faced a fight from the more conservative Sen. Dan Coats (R-Ind.), who lost the battle and retired two years later.

Specter made his pending chairmanship of Judiciary a top issue in his re-election campaign, even in a bitter primary against Rep. Patrick Toomey (R-Pa.), and was backed by Bush, who introduced Specter to a campaign crowd last spring as the “next chairman.”

Assuming he secures the chairmanship — the GOP will determine that at organizational meetings next week — Specter’s first big test could be the Supreme Court nomination fight, which could come sooner rather than later if Rehnquist’s condition makes a return to the court impossible.

Democratic aides to Judiciary members said last week that the election results did not mean they would back down from filibustering a Bush Supreme Court nominee, a tactic they used 10 times in the past two years on appellate court picks and one they consider a constitutionally acceptable option if the nominee is too far right.

“It’s become more important,” one aide said of the filibuster potential. “Whatever happened last Tuesday, the basic constitutional structure didn’t change.”

Another Democratic aide noted that the spring and summer of 2003 provided a “fire drill” preparation for the coming battle, when speculation was rampant that a justice would step down and both sides engaged in a massive amount of research into the potential nominees.

Suggesting Democrats might have to “pick and choose [filibusters] a little more carefully,” the aide said Judiciary Democrats were ready for the fight. “We’re not going to get caught flat-footed,” the aide said.

With several more votes on their side, Republicans are hearing renewed talk from within their Conference about pursuing the “nuclear option,” forcing, by a simple majority vote on the Senate floor, a rule change that would forbid filibusters of judicial nominees.

Democrats have vowed swift retribution if the Republicans pushed the move, but the GOP has lacked the 50 votes they need to approve of the unilateral abolition of filibusters.

The prime movers for the issue have been Santorum and Sen. Trent Lott (R-Miss.), who have been in charge of rounding up support for the move. Aides said there was more talk of the nuclear option after the four-seat pick-up during the elections, but at most they gained just three votes because outgoing Sen. Zell Miller (D-Ga.) already sided with them on the issue.

Moderate Republicans and veteran chairmen have been most hesitant to make the move out of fear that one day they would be in the minority and Democrats would seek out their own retribution.