Senator Brain Damage update.

Pennsylvania's senior (in more ways than one) Senator finds being the center of attention suuuuuuuuuper.

This Looks Like a Job for Super-Duperman!

During the Roberts hearings last week, Judiciary Committee chairman Arlen Specter asked the future chief justice an especially silly question about Roe v. Wade. Let's go to the transcript:

Specter: When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you didn't really know.

And you cited a number. I said, Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled?

One of them was Rust v. Sullivan, where you participated in the writing of the brief and, although the case did not squarely raise the overruling of Roe, it involved the issue of whether Planned Parenthood, even if it's funded with federal money, could counsel on abortion.

And in that brief you again raised the question about Roe being wrongly decided. And then I pointed out to you that there had been some 38 cases where the court had taken up Roe.

And I'm a very seldom user of charts but, on this one, I have prepared a chart because it speaks--a little too heavy to lift--but it speaks louder than just--thank you, Senator--38 cases where Roe has been taken up.

And I don't want to coin any phrases on superprecedents--we'll leave that to the Supreme Court--but would you think that Roe might be a super-duper precedent in light of--

[laughter]

--in light of 38 occasions to overrule it?

Back in July, Specter put forward the notion of a "superprecedent" in a New York Times op-ed. Blogger and lawyer Bill Dyer pointed out that the source of this idea seemed to have been the Pennsylvania senator's own imagination, and a super-duper imagination it is, to judge by his performance at the hearings.

But in truth, the idea that Roe is a more powerful precedent by virtue of having been upheld so many times is perfectly wrongheaded. If Roe were actually settled law, the Supreme Court could let it rest. That the court instead has reconsidered it at a pace of once a year (by Specter's count) shows the shakiness of the constitutional foundation on which it is built.
(Thanks to Best of the Web Today for the heads up.)