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How Arlen Specter Almost Changed History -- and the Supreme Court

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The Associated Press report on the death of longtime Pennsylvania Senator Arlen Specter remembers the former Senate Judiciary Committee chair as playing "a pivotal role in several Supreme Court nominations." But the AP, which mentions Specter's vote against Robert Bork and his harsh questioning of Anita Hill, fails to mention an episode that almost changed the course of American history.

The day after George W. Bush won re-election in 2004, Specter was riding high. He had just defeated a nominal Democratic challenger to win his fifth term in office. His seat was secured when Pennsylvania's junior Republican Sen., Rick Santorum, and other high profile conservatives closed ranks and protected Specter's right flank against a strong challenge from conservative Congressman (and current Pennsylvania Sen.) Pat Toomey. And, since his party retained control of the Senate, it was his turn to take the reins as Chairman of the Senate Judicary Committee.

It was that day, contemplating his good fortune, that Specter offered the following reflection on how he would use his perch as Chair of the Judiciary Committee: "The president is well aware of what happened, when a bunch of his nominees were sent up, with the filibusters. And I would expect the president to be mindful of the considerations which I am mentioning."

Given Specter's record in support of abortion rights, his unstated threat to block anti-choice judicial nominees was clear. Jan LaRue, president of Concerned Women for America, a conservative women's group that promotes biblical principles, interpreted Sepecter's remarks to mean that "he will block appointments of federal judges who do not pass his pro-abortion litmus test," And, as chair of the Judiciary Committee, the damage he could potentially inflict on President Bush's agenda was vast.

The problem was, Specter was not yet the Committee chair. A formal vote on Senate leadership positions would not take place until January 2005, when the 109th Congress would be seated. And conservatives freaked out. Activists opposed Specter's ascension, and groups such as the Christian Defense Coalition planned nationwide protests. Concerned Women for America sent a letter to then-Senate Majority Leader Bill Frist that read in part: "Sen. Specter has dismissed as 'unlikely' the notion that he would allow a nominee who does not support the manifestly unconstitutional Roe v. Wade decision to be confirmed to the Supreme Court. Sen. Specter has signaled in advance that he does not intend to conduct the Judiciary Committee in a fair and impartial manner. Therefore, he has disqualified himself from consideration for that position."

Inevitably, Specter caved. Unlike the Democratic caucus, Republicans in the Senate do not -- and did not, in 2004 -- assign chairmanships based primarily on seniority. Republican Senate leadership would have to approve Specter's ascension. Specter had long coveted the Judiciary Committee chairmanship, and in order to achieve that ambition he signed an actual pledge stipulating that he would not oppose anti-abortion nominees.

In hindsight, it is impossible to say how the judiciary would have been altered had Specter kept his mouth shut until after chairmanships were divvied out. While both of President Bush's Supreme Court appointees are orthodox judicial conservatives, at the time of their nominations they evaded questions on abortion and sang hosannas to stare decisis. Faced with concerted pressure from the White House, Senate Republican leadership and the same activists that challenged him in 2004, it's very possible that Specter would have lost any battle he may have chosen to wage in 2005 when John Roberts and Samuel Alito were nominated.

But it is also possible that Specter may have stood by his pro-choice convictions and provided bipartisan cover to a filibuster effort against one or both of Bush's Supreme Court nominees. Specter was never all that attached to the Republican establishment; he did, in fact, switch sides and begin caucusing as a Democrat in 2009. If he had, the composition of the Supreme Court, which is currently considering key cases on affirmative action and voting rights, may have been very different today -- as would be the political legacy Specter left behind.