Date: January 12, 2006
Senator: Specter
Topic:
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SPECTER: I'm going to use just a little of my reserved time to comment on what Senator Leahy raised about the issue with Chief Justice Rehnquist on his statement that you could not take away the jurisdiction of the Supreme Court of the United States on First Amendment issues.
That was as interesting a dialogue as I've had in my tenure here, and I've had a few. And it arose in a curious context. I'd asked the chief justice about the question, and he refused to answer.
And over night, the staff had found an article written by a young Arizona lawyer named William H. Rehnquist in 1958 which was published in the Harvard Law Record, not the Harvard Law Review but the Harvard Law Record. And, in that article, lawyer Rehnquist said that the Senate Judiciary Committee was derelict in its duty in questioning Justice Whittaker at his confirmation hearings in not asking pointed questions about due process or equal protection.
And when my turn came, I came back to then Justice Rehnquist and said, "How about it? Are you that William H. Rehnquist?"
SPECTER: And he admitted he was; didn't have much choice.
And I said, "Well, how about his article?" And he emphatically said, "I was wrong."
(LAUGHTER)
That provided...
(UNKNOWN): He was under oath.
(LAUGHTER)
SPECTER: That provided an opening, and I proceeded to continue the line of questioning. And finally he allowed as to how Congress couldn't take away the court's power over the First Amendment.
Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues -- cannot do it. That's the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the court's authority would be vacuous.
But then, as you might expect, I asked him about Fourth Amendment search and seizure and Fifth Amendment privilege against self- incrimination -- went right down the line. He refused to answer every question.
And I said, "Well, why will you answer questions on the First Amendment and not on the rest of them?" He wouldn't answer that either.
(LAUGHTER)
Chief Justice Rehnquist was confirmed 65-33, which confirmed an observation which I have made from time to time, Judge Alito: that nominees just about as many questions as they think they have to to be confirmed.
Now, you may turn out to be a notable exception, but I think that's a valid generalization. And it also confirmed my experience that nominees remember these proceedings and nominees are influenced by these proceedings in very subtle ways.
SPECTER: We don't extract promises, but when Senator Leahy very adroitly asks you about the rule of four on granting cert -- four justices say, "A cert's granted" -- but it takes give to stay an execution in a capital case, how ridiculous can you be?
And Senator Leahy wondered if you'd remember that. Well, I predict you'll, if confirmed, remember that. In fact, I predict you'll remember it even if you're not confirmed.
But to this day, justices comment to me about questions they had here. Every time I see Justice Souter, he says he still hasn't made up his mind on whether Korea was a war or not. And the other justices -- I won't go into any more detail.
I'm going to reserve the balance of my 20:54.
SPECTER: Senator Hatch?
HATCH: Well, I'll reserve my 25 minutes.
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