As Specter Moves to the Left, So Does the Supreme Court

Having a 60-vote filibuster-proof Senate for the president changes the dynamic entirely for Obama's Supreme Court nominee selections, and it changes it in his favor.
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The announcement by Pennsylvania Republican Senator Arlen Specter that he was changing his party affiliation from Republican to Democrat has stimulated intense energetic debate over how it happened, why it happened, and what will be the consequences.

But perhaps the most significant long-term consequence of this action may well be the new dynamic that the Specter switch could create for President Obama's ultimate Supreme Court appointments -- and everyone understands that the appointment of two or more Supreme Court justices during one Administration can have greater, and far longer-lasting, impact than most of all the other legislative initiatives and programs enacted during that administration's term in office. And so far, we have actually heard very little commentary on this perhaps most significant impact of all of the consequences of the Specter switch.

I will address this specific consequence in this essay, but let's first provide some additional overview to this event. The first observation that strikes me is the irony of the switch itself. Usually, as in the recent case of Jim Jeffords who switched from being a Republican to an Independent who would caucus with the Democrats, this usually happens when the Senator who is switching parties is doing so to provide more power to the opposition Party in the Congress, not to buttress the President's power -- so that's a bit ironic. Richard Shelby of Alabama is another example of the more usual course.

And yes, some of Specter's motivation has to be based on principle, despite the argument of his critics that the decision was entirely based on political self-interest. Not entirely. If Specter didn't actually feel more comfortable on principle with much of the philosophy of government of the Obama administration, he wouldn't be able to switch over and expect to have the support of the administration in his re-election effort or expect to be given substantive committee and leadership power within his new party in the Senate. He wouldn't have been able to survive being alienated by both sides, and he certainly wouldn't be expecting to run and win re-election next year in that kind of environment.

But certainly, the current polls showing Specter not being able to get out of the Republican primary were definitely a significant factor in his decision. And let's remember, not only will he now have President Obama coming into Pennsylvania to campaign for him, but he'll also have Joe Biden coming in with his strong ties in the State, and he'll also have Hillary Clinton coming in, and she won the State in the primary campaign. And we also must mention the fact that Pennsylvania's changing demographics and changing political dynamic with Obama already having driven most moderate Republicans over to the Democrats clearly laid out a road map to victory for Specter next year, and that road map did not recommend any stopovers at Republican rest stops.

So as is usually the case, the extreme critics on both sides miss the mark entirely, while an objective review of the facts tends to include a little of the commentary from both sides. Arlen Specter clearly understands the politics, and he knows this move does help him immensely on the political front. But Arlen Specter is also a man of principle, and he has demonstrated that in his almost thirty years in the Senate, and he could not have just abandoned that entirely purely for political gain. But the bottom line is that the administration now has the possibility of enacting its full court agenda for health care reform, education reform, environmental and energy reform, economic reform and recovery, and generally expanding the role of government as a "pro-active" agent for change in the country. And with the likelihood of Al Franken being certified as the new Senator from Minnesota, Specter's 60th vote now gives the administration that potential. It is enormous. And any Republican or conservative who denies that is simply in denial.

But while the conversation has not yet focused much on the Supreme Court, any historian can tell you that having a 60-vote filibuster-proof Senate for the President changes the dynamic entirely for the President's Supreme Court nominee selections, and it changes it in his favor. And remember, even with the threat of filibuster and a very divided Senate, any President who can make two or more appointments to the Supreme Court during his term in office will impact the direction of the country in the most significant way for at least a generation or more after that President leaves office.

But if that President has 60 votes on his or her side in the Senate, then the Supreme Court selection process reaches an entirely new level of opportunity for that President -- and again, the impact of Specter's 60th vote for the Obama administration in this regard is enormous.

First, it is possible that even if President Obama serves only one term, and it is almost a certainty that if he serves two terms, this President will have two Supreme Court selections to make, and they most likely would be appointments to replace Justices Ginsberg and Stevens, two of the more liberal members of the Court, with Stevens being the most liberal Justice on the Court.

It has always been my assertion that given the current make up of Congress, and given Obama's natural inclination to work for consensus if possible and minimize confrontation, he would likely name Justices more along the philosophical lines of Justices Kennedy and Souter, Justices considered to be moderate centrists, although Kennedy has often times proved to be more conservative than moderate, and David Souter has almost consistently proven himself to be more liberal than moderate (to the chagrin of the first President Bush). But it is in the mold of these two Justices that I had projected appointments by Barack Obama to be framed.

But now, with the likelihood of a filibuster proof Senate, and with the enhanced leverage the more liberal wing of the Democratic Party could now have on the selection process, I believe that President Obama may be more comfortable with making court appointments more philosophically framed in the mold of Justices Ginsberg and Stevens themselves, the very Justices the President would likely be replacing, and that, my friends, changes everything -- from abortion to civil rights to gay marriage to affirmative action to environmental issues to the role of religion to individual rights to national security to the prerogatives of the Chief Executive.

It changes everything!

And perhaps more than in any other area, the Specter switch to the Democrats now gives this President the chance to really implement his agenda, the agenda he was confident and comfortable with promoting before the September 15, 2008 weekend economic crisis changed the campaign and the country -- and probably elected him as well. If this scenario regarding the Supreme Court comes to pass, let no one ever forget how the Arlen Specter decision will have contributed to that scenario.

I opened this essay by mentioning one of the ironies of this evolving event -- let me close with another one. In commenting on the Arlen Specter switch to the Democrats, Republican Party Chairman Michael Steele accused Specter of "flipping the bird at Republicans." Isn't it ironic that we have come to a time in America where one African-American male may lead his party to the very top, and another African-American male may lead his party to the very bottom!

Carl Jeffers is a Los Angeles-and Seattle based columnist, TV political analyst, radio talk show host and commentator, and a national lecturer. To contact, e-mail

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