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Specter Takes a Swipe at John Roberts

Legal bloggers are abuzz about Sen. Arlen Specter’s (D-Pa.) swipe at Supreme Court Chief Justice John Roberts in an exacting letter (pdf) Specter sent to nominee Sonia Sotomayor earlier this week about the kind of questions he plans to ask at her confirmation hearing.

As Rick Hasen of Election Law Blog writes: “Though the letter is directed to Judge Sotomayor, it takes a not-so-subtle shot at Chief Justice Roberts’ views of congressional power, first as expressed at his Supreme Court confirmation hearings, and then as expressed at the oral argument in NAMUDNO” — or Northwest Austin Municipal Utility District v. Holder, a challenge to the Voting Rights Act that the Supreme Court is getting ready to rule on soon.

The letter, also discussed in Constitutional Law Prof Blog, essentially accuses Roberts of lying by saying he believes one thing at his confirmation hearing, and then doing another on the bench.

Specifically, Specter accuses Roberts of saying in his confirmation hearing that he will defer to the findings of Congress when legislation is challenged in court, and then during oral argument in the recent Voting Rights Act, suggesting that he doesn’t accept Congress’s findings when it comes to the need for reauthorization of the Voting Rights Act.

Specter wrote in his letter to Sotomayor:

While too much cannot be read into comments by justices at oral argument, Chief Justice Roberts’s statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing.

How straight an answer Specter will get on his questions about deference to Congressional fact-finding may depend on whether (and how) the Supreme Court has ruled in the voting rights case by the time of Sotomayor’s confirmation hearing, notes Steven Schwinn, contributor to Constitutional Law Prof Blog and a professor at John Marshall Law School.

Sotomayor’s confirmation hearings are scheduled to begin July 13.

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