ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

I’ve looked over the transcript for today’s morning session, up through Senator Kennedy's questions, and can make a few comments. For me, the answers from Judge Roberts were not encouraging.

First of all, I thought that Senator Hatch’s questioning was excellent. Hatch pointed out that precedent is weakest in constitutional cases. It’s worrisome to me that Judge Roberts didn’t point that fact out himself, in response to Senator Specter’s earlier questions on the same subject. Senator Hatch correctly quoted from the case of Smith v. Allright, and I would add that the Court in Smith v. Allright also said, “when convinced of former error, this Court has never felt constrained to follow precedent." In other words, the doctrine of stare decisis only applies when there is uncertainty.

Judge Roberts should know that it is a violation of the judicial oath to strike down a statute that the judge is convinced is constitutional. Yet, we got this kind of statement over and over again from Judge Roberts: “it’s not enough that you might think the precedent is flawed to justify revisiting it --- I do agree with that.�? He also denied that when the Court wrongly strikes down a statute that’s “judicial activism.�? Certainly it's judicial activism, at least some of the time.

Judge Roberts agreed with Senator Specter that the “ability of women to participate equally . . . has been facilitated by their ability to control their reproductive lives." Judge Roberts also agreed with Specter that the Court’s generalized right to privacy is not “amorphous."

Judge Roberts was not well-informed about the Dickerson case, which was a very historic case in which the Court affirmed its Miranda decision. Roberts said that “all but one member of the court" concurred in that case, but actually Justice Scalia was joined in a very strongly worded dissent by Justice Thomas. Moreover, when asked by Senator Hatch whether Rehnquist believed “his Dickerson holding should apply to Roe," Judge Roberts said that he didn’t know. Actually, Chief Justice Rehnquist was very clear on this point. In Stenberg v. Carhart, Rehnquist wrote that, “I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, … and continue to believe that case is wrongly decided."

It now appears very possible to me that President Bush has nominated a pro-Roe vote in place of an anti-Roe vote. It appears from this morning's testimony --- and I could be wrong about this --- that Judge Roberts will probably affirm the so-called right to obtain an abortion all the way up until viability, even though 72% of women in the United States have consistently said that abortion should generally be illegal months before viability.