Specter lectures justices on base closing issue

March 03, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- You can take the senator out of the Senate, but apparently you can't take the Senate out of the senator.

Yesterday morning, Sen. Arlen Specter of Pennsylvania moved across the street from the Capitol and took his place at the Supreme Court lectern to appear as a lawyer for a cause dear to his constituents: keeping the Philadelphia Navy Yard from shutting down in 1995.

Pennsylvania and New Jersey politicians, shipyard workers and labor unions have been waging a three-year battle against a proposal by a base-closing commission to close that yard. They sued after Congress and the Bush administration accepted the plan.

With occasional flights of Senate-style oratory, some passing hints of filibustering, a tendency to yield only reluctantly and a conspicuous willingness to lecture the court on its duties, the Pennsylvania Republican worked his way confidently through a half-hour of sometimes pressing questions.

Chief Justice William H. Rehnquist at one point cast doubt on one of the key legal precedents Mr. Specter had claimed to be in his favor, but the senator was not fazed: "I respectfully disagree with you. . . ." Pausing, he then added: "Categorically!"

The going did get a little rough toward the end, when several justices tried to nail down some constitutional answers from the senator about presidential and congressional authority.

But, in a fairly artful dodge, Mr. Specter began talking about how political realities -- "staying away from the political hot potato" -- are what really influence Congress and the president, and how it was for the courts to deal with the constitutional complications.

The core of his argument, though, was distinctly legal as he pressed for a judicial resolution of the fight to keep the Navy Yard open.

The first member of Congress in 22 years to argue a case before the justices, Mr. Specter was, in a way, speaking for himself. His name is in the title of the case -- Secretary of Navy vs. Specter.

A former Philadelphia prosecutor, Mr. Specter argued two cases at the court before becoming a senator; he won both.

With other politicians and prominent Washington lawyers in the courtroom audience yesterday, Mr. Specter appeared opposite the U.S. government's top advocate in the court, Solicitor General Drew S. Days III.

Mr. Days sought to defend the compromise that he said Congress and the White House reached in 1990 to end years of wrangling over which military bases to close when defense needs change.

"Partisan and procedural obstacles" had blocked almost all base closings, Mr. Days said, and the 1990 compromise law was a way out of that. He thus urged the justices to keep the courts from second-guessing the results of that compromise procedure, saying that Congress and the White House had denied themselves the option of choosing which bases to close and that the courts should not now be allowed to revive that discredited practice.

"All the pieces of this puzzle have to fit together," he argued, without court review of any one piece, such as the Navy Yard.

Because "military sensitivities" were involved in closing bases, it was even more important to keep the judiciary out, the solicitor general contended.

Mr. Specter then took his turn at the lectern, defending a federal appeals court ruling that permits a limited court challenge of the Navy Yard's closing.

To Mr. Days' point that all "the pieces" of the base-closing puzzle had to fit, the senator said that it was "peculiarly a judicial function" to take a close look at the legality of one of those pieces without necessarily disturbing the others.

At one point, under questioning by Justice Anthony M. Kennedy, Mr. Specter acted out the role of a White House staff lawyer advising the president on what his powers would be regarding base closings. The advice he said he would give, not surprisingly, fit exactly the legal arguments he was pressing before the court.

As the senator was finishing his argument, the red light on the lectern went on -- a signal the court uses to bring an immediate halt to anything a lawyer is saying. Mr. Specter, though, tried to finish, only to be cut off by the chief justice in mid-sentence.

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