Liberals not so keen on judicial independence anymore

Opinion Journal:

Welcome to Arlen Specter, the B side. One week after standing up for the nomination of Judge Leslie Southwick, a Bush appeals court nominee being stonewalled by Democrats, the mercurial Republican from Philadelphia has come up with a strange new quest.

On Tuesday, the Judiciary Committee's ranking Republican announced his plans to "review" the confirmation hearing testimony of Supreme Court Justices John Roberts and Samuel Alito to see how it matches their decisions on the bench. "There are things he has said, and I want to see how well he has complied with it," Senator Specter said of the Chief Justice, according to The Politico Web site.

They must be falling over at the American Bar Association. It's widely agreed that it would be unseemly and improper for a nominee to seek confirmation to the nation's highest Court by promising Senators how he or she would rule on a given issue on the bench. Yet Mr. Specter's statement suggests that he thinks he pocketed such promises from Justices Alito and Roberts, and he now wants to check to see if they've been kept.

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The Judiciary Committee could certainly find other uses for its time, with federal court vacancies piling up around the country. But the backlog of nominees waiting to get a hearing may be precisely the point. As Democratic Senator Dick Durbin put it, investigating the confirmation testimony of Justices Roberts and Alito "could lead us to a different approach" to future confirmation hearings. How so: Lie detector tests?

Mr. Specter's bugbear seems to be Supreme Court precedent, which he wants the new Justices to follow more rigorously. But while both Justices promised to take precedent seriously, neither one vowed to adhere to it in all cases. Facts differ from case to case. And this is precisely why judicial nominees refuse to predict how they would rule on topics--to prevent politicians from usurping the role of the judiciary and turning judges into Senators with robes.

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There are a couple of lessons from the reaction of the liberals that Roberts and Alito should take to heart. One is that they should listen to Scalia and Thomas more and not hold back when overturning bad precedents. It buys them nothing and the country would be better off with completely overturning things like McCain-Feingold. The other thing we should learn is that when liberals talk about the independence of the judiciary they just mean that for liberal decisions. While it is not particularly surprising that they have been unmasked as hypocrites on that issue, the blatant way they are doing it is.

Ed Lasky also has comments on the liberal attack on the judiciary.