While reading Linda Greenhouse’s piece in The New York Times this morning discussing today’s opening of the Supreme Court’s 2007 term (which is NOT the subject of this post), there was a little bit in the section about the Guantanamo Bay detainees case. That case, as you likely already know, involves the question of whether the Military Commissions Act, which Congress passed and the President signed into law last year, impermissibly prohibits the federal courts from considering habeas corpus petitions brought by Guantanamo detainees. So far so good. In the course of describing the case, she notes that Pennsylvania Senator Arlen Specter, who was the Chairman of the Senate Judiciary Committee, had voted in favor of the Act, but has now “filed a brief telling the justices he believes it is unconstitutional.” It is curious – to me at least – that Senator Specter would vote in favor of a law that he believes to be unconstitutional.
As a voting member of a coequal branch of the federal government, Senator Specter has a duty to protect and uphold the Constitution, just as the President does, and just as the Supreme Court does. It seems to me to be an abrogation of that duty to vote in favor of a bill that one believes violates the Constitution. If Senator Specter REALLY believes that the Act is unconstitutional, in my view he had a duty to vote against it. Hos vote in favor of the Act was no less an instance of dereliction of duty than was the President’s signing into law of McCain-Feingold, which, the President opined at the time, he believed was, at least in substantial part, unconstitutional.
Of course we are talking about the Senator who famously voted “not proven” at the conclusion of the Clinton impeachment trial. But still, if Senator Specter had concerns about the constitutionality of the Act grave enough to justify his filing of an amicus brief, ought he not have voted against it in the first place?
Filed under: Congress, Constitutional Law, The Supreme Court
