Rooting for Chairman Kyl
By Tara Ross
The most important Senate race of 2004 will be over on April 27.
The race is the Pennsylvania Republican Senate primary between liberal incumbent Arlen Specter and conservative Congressman Pat Toomey. Many editorialists have argued that, if Toomey manages to oust Specter from office, it will send an important warning to overspending incumbent Republicans in Congress.
An important warning, without a doubt, but spending is not the only issue. The identity of the next Senate Judiciary Chairman may also hinge on whether Toomey can defeat Specter on April 27. If Specter wins re-election, he will likely be the next chairman of the Judiciary Committee, since the current chairman, Orrin Hatch, is term-limited in that position.
Three events could prevent such a scenario. First, the Democrats could regain control of the Senate, leaving Patrick Leahy (D-VT) in charge of the Judiciary Committee. Second, the Republican leadership could take advantage of one of several procedural tricks to bypass Specter, such as voting to override its normal term-limit rules, leaving Hatch in the chairman position (but no movement has been made in this direction so far). Third, Specter can go down in defeat, either to Toomey or a Democratic challenger. In this last instance, Senator Jon Kyl (R-AZ) would ascend to chairmanship of the committee.
The vision of a Chairman Leahy in 2005 has sent many Republicans scrambling to support Specter. As the argument goes, Republicans should stand behind their incumbents, because they will have an easier time winning re-election. The incumbent Specter might be bad, but Leahy would be much worse.
Unseating Specter in the primary is not without risk. The seat could be lost to Democrats this November. Some argue that Specter has an advantage in the general election. Toomey, they contend, is simply too conservative to win statewide. These critics, however, skip two important facts. First, the State of Pennsylvania has repeatedly elected one of the Senate's most conservative leaders: Rick Santorum. Second, Toomey is a proven vote-getter. He was first elected to Congress in 1998 and won re-election twice, despite the fact that the ratio of registered Democrats to Republicans in his district is 48 percent to 37 percent.
Toomey is very electable. Conservatives should make it their mission to ensure that it happens. The possibility of losing a Chairman Specter and gaining a Chairman Kyl makes it a battle well worth fighting.
Specter will not end the "borking" of the President's nominees. After all, the blame for the first borking can be laid largely at his doorstep. It was Specter, in 1987, who played a key role in killing President Reagan's nomination of Robert Bork to the Supreme Court. In his book, Passion for Truth, Specter opined that Bork's views do not fall in line with the correct view of the Constitution as a "living, growing document." Robert Bork later explained Specter's judicial philosophy: "It's quite clear that he doesn't think that judges ought to stick to the original understanding of the Constitution, but up to other considerations--primarily political and social."
These "other considerations" have led judges in Massachusetts to order same sex marriages in their state. They caused Ninth Circuit judges to declare the words "under God" in the Pledge of Allegiance unconstitutional. "Other considerations" cause judges to create the law, when they should merely enforce it and leave everything else to the legislative process. President Bush has fought to drive deference to these "other considerations" out of the judiciary, leaving it to the people to govern themselves.
Don't expect Arlen Specter to help.
To the contrary, Specter's pro-abortion, pro-racial preferences, and pro-judicial activism views could come sharply into play when it comes time for the President to nominate a Supreme Court Justice. Specter stated in a 1997 National Public Radio interview, "I do not think that the ideological issues are significant at all in the United States district court judges.... [But] it is another matter when it comes to the Supreme Court of the United States, with so many five to four decisions and they're on the cutting edge, the avant garde...there I think ideology is important, and a fair consideration for the confirmation process."
Conservative judges need not apply for a Supreme Court position if Specter is chairman of the Judiciary Committee.
A Toomey win could change things completely. Senator Kyl has consistently championed the President's judicial nominees. As Judiciary Chairman, he could do even more to end deadlock and gain confirmation for the President's judges. Already, he has teamed up with Senator John Cornyn (R-TX) to work tirelessly on pushing the President's nominees through committee and to the Senate floor. They supported the nearly 40-hour talkathon on judges last fall in the Senate. They each signed a brief urging the Supreme Court to uphold the use of the words "under God" in the Pledge of Allegiance. Kyl understands the need for judges to show restraint, issuing decisions that are in accordance with the law rather than their own moral or policy beliefs.
In short, a Chairman Kyl would be as wonderful for conservatives as a Chairman Specter would be terrible, so I'll be rooting for Pat Toomey and Chairman Kyl on April 27.
Tara Ross is a writer and an attorney residing in Texas.
