Despite G.O.P. Gain, Fight Over Judges Remains

The New York Times
November 5, 2004

Despite G.O.P. Gain, Fight Over Judges Remains
By SHERYL GAY STOLBERG

WASHINGTON, Nov. 4 - When Senator Arlen Specter, Republican of Pennsylvania, faced the toughest primary race of his political career, President Bush went to his rescue, campaigning with Mr. Specter at every turn. But when both men were re-elected this week, Mr. Specter promptly made remarks that seemed to warn the president against nominating Supreme Court justices who would overturn the 1973 ruling legalizing abortion.

The Senate, Mr. Specter said, would be unlikely to approve "judges who would change the right of a woman to choose.'' On Thursday, as outraged conservatives demanded that the Senate block Mr. Specter's rise to the chairmanship of the Senate Judiciary Committee, the senator issued a statement clarifying those remarks.

"I did not warn the president about anything and was very respectful of his constitutional authority on the appointment of federal judges," Mr. Specter said, adding, "I have never and would never apply any litmus test on the abortion issue."

The controversy suggests that, despite talk of a political mandate, the long-running battle over federal judgeships will be in full bloom when the new Congress convenes next year under strengthened Republican control. Although Republicans made significant gains on Election Day, their majority of 55 senators still falls five votes short of the 60 needed to break a Democratic filibuster.

"The magic number in the Senate is 60, not 50," Senator Charles E. Schumer, the New York Democrat who sits on the Judiciary Committee, said in an interview. Mr. Schumer added, "If the president nominates people who are not part of the mainstream but who are far off, who will try to make law, not interpret it, and who will be way over to the ideological extreme, the controversy over judges will be alive."

But Senator Rick Santorum, another Pennsylvania Republican and a staunch opponent of abortion, said in a statement he looked forward to getting more judges approved.

"Senate Republicans are committed to approving all of the president's judicial nominations, despite the Democrats' rhetoric that they are committed to block judges who fail their litmus tests," Mr. Santorum said. With 55 Republicans, he added, "I am hopeful that with this increase we can overcome the Democrats' filibustering tactics."

In a telephone interview, Mr. Specter, whose support for abortion rights is well known, said he issued his statement at the suggestion of Mr. Santorum, who is a member of the Republican leadership. He said he was not worried about losing the chairmanship and added that he thought he could be a bridge between Democrats and the White House.

"I think I can be helpful to the president on getting his nominees confirmed," Mr. Specter said.

As the second-most-senior Republican on the Senate Judiciary Committee, Mr. Specter is in line to replace the current chairman, Senator Orrin G. Hatch of Utah, who must step down under Senate rules that limit the terms of chairmen to eight years. The position will give Mr. Specter, a centrist known for an independent streak, great influence over the judicial confirmation process.

The issue of judicial nominations percolated throughout the elections, including Mr. Specter's own. This spring, he faced a difficult primary challenge from Representative Patrick J. Toomey, a conservative Republican, who labeled Mr. Specter a Ted Kennedy liberal who would block conservative judges if he ascended to the chairmanship.

With help from the White House, Mr. Specter won that race, and then on Tuesday went on to win a fifth term in the Senate, handily defeating his Democratic challenger, Representative Joseph M. Hoeffel. Fresh from his victory, Mr. Specter was asked at a news conference on Wednesday about possible retirements on the Supreme Court, and what he would do if the president nominated abortion opponents.

"When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely" that they would be approved, Mr. Specter said at the news conference, referring to the 1973 Supreme Court ruling that made abortion legal.

He added, "The president is well aware of what happened, when a number of his nominees were sent up, with the filibuster."

On Thursday, he said in the interview that he was simply noting "the political reality of the Senate on the Democrats' filibustering."

Political analysts said they had not been surprised by the comments. Jenny Backus, a Democratic strategist, viewed them as "a little bit of payback to the conservative right for making him go through a punishing primary." She said Mr. Specter was "sending a signal that he is a force to be reckoned with inside the Senate."

G. Terry Madonna, a professor of public policy at Franklin and Marshall College in Pennsylvania who has watched Mr. Specter for years, said: "This is in a sense a declaration of independence."

But the reaction was intense. Abortion rights advocates, feeling beleaguered after Senator John Kerry's loss to Mr. Bush, said they were encouraged by Mr. Specter's remarks.

"Welcome back, Senator Specter," said Elizabeth Cavendish, interim president of Naral Pro-Choice America, in a reference to what she views as the senator's recent efforts to distance himself from abortion rights. She called his remarks "an important statement to the president that he should not interpret the election results as a mandate to take away fundamental freedoms."

But abortion opponents were beside themselves. Aides to Senate Republicans who oppose abortion said their phones rang with complaints about Mr. Specter. One group, the Concerned Women of America, declared that Mr. Specter had "Borked himself" - a reference to Judge Robert H. Bork, whose appointment to the Supreme Court was doomed after sharp questioning from Mr. Specter, who crossed party lines to vote against him.

"President Bush says his only litmus test for judges is whether they will interpret the law and not write it," said Jan LaRue, the group's chief legal counsel. She said Mr. Specter had disqualified himself from the chairmanship. "Senator Specter is openly opposed to the president and the Constitution on this."

In his statement, Mr. Santorum did not go so far as to say Mr. Specter would be chairman, but nor did he indicate that Mr. Specter was in danger of losing the chairmanship. "In the new Congress," he said, "I look forward to working with Senator Specter to guarantee that every judicial nominee put forth by President Bush has an up-or-down vote on the floor of the United States Senate."