- The Washington Times - Sunday, January 15, 2006

Democrats tried to end a sacrosanct judicial tradition in last week’s confirmation hearings when they asked Judge Samuel Alito to rule out the possibility of reconsidering a past decision by the Supreme Court.

In other words, to say how he would vote in a future case.

Are they kidding?

Stripped of all their sanctimonious mumbo-jumbo, that’s what Senate Judiciary Committee Democrats were demanding Judge Alito do on the question of Roe v. Wade, the landmark case that helped make abortions legal.

Supreme Court nominee, now chief justice, John G. Roberts Jr., had declared in his confirmation proceedings he considered Roe v. Wade “settled law,” explaining it had been reaffirmed so many times by the courts it was a legal precedent that demanded hallowed respect in future court cases.

But Judge Alito was not willing to say how he would vote, though he, too, agreed with Justice Roberts that it was “an important precedent” in jurisprudence that in Judge Alito’s words was “protected.” That, however, wasn’t enough for the committee’s liberals, like Sen. Richard J. Durbin of Illinois and Sen. Edward Kennedy of Massachusetts.

They wanted Judge Alito to go much further, maybe even further than Roberts, to say under no circumstances could that case be revisited by the court with an open mind in an entirely different case that could raise new and very legitimate issues.

When Mr. Durbin pressed him to declare the ruling was “the settled law of the land,” Judge Alito resisted because that raised disturbing legal implications in future cases brought before the high court.

“If ‘settled’ means that it can’t be examined, then that’s one thing. If ‘settled’ means that it is a precedent that is entitled to respect… then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis,” Judge Alito responded. The Latin term stare decisis is a legal principle that means “to stand by that which is decided.”

Actually, Judge Alito’s position was not that different from Justice Roberts’. What the chief justice meant by “settled law” is that it was settled only in terms of the legal precedent it set in law — not that it was an inviolable decision the court could never re-examine under any and all circumstances.

Justice Roberts, like Judge Alito, was equally reluctant to tell the committee how he would vote on the issue or to indicate what his leanings may be in some unknown future case. He, too, pointed to the doctrine of stare decisis now part of the sturdy legal structure surrounding Roe, but he also said he believed the ruling to be “settled law.”

However, when Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania asked Justice Roberts to explain what he meant by “settled law,” his answer came back full circle to the protective precedent Judge Alito embraced. Here is Mr. Specter’s question and Justice Roberts’ reply:

“Do you mean settled for you, settled only for your capacity as a circuit judge or settled beyond that?” Mr. Specter asked.

“Well, beyond that, it’s settled as a precedent of the court,” Justice Roberts answered.

In other words, Justice Roberts was not saying it was now inconceivable for the court to readdress the legal parameters of Roe under very different circumstances at some point in the distant future. He was saying it had set a strong legal precedent in a body of law that the court has upheld many times and that, as Judge Alito also said, demanded the court’s deepest respect in any and all future cases about abortion.

But Mr. Durbin and his liberal colleagues, frustrated with the polls showing a majority of Americans think Judge Alito should be confirmed and frustrated by the prospects he will be confirmed, wanted him to flatly state what even Justice Roberts did not say: that this entire area of law was “settled” for all time to come as far as he was concerned and anyone who came before the court with a new case, involving yet unknown issues, might as well forget it.

If he was to have the “open mind” that his critics said he did not have, that had to apply to all cases that would come before him, even ones involving abortion, he suggested.

Here’s how Judge Alito put it in his testimony last week:

“It would be wrong for me to say to anybody who might bring any case before my court. … ‘Go away, I’ve made up my mind.’ That’s the antithesis of what courts are supposed to do. And if that’s what settled means, I think that is not what judges are supposed to do.”

How can any fair-minded person disagree with that? But Mr. Durbin and his friends do. They want him to say this is not just an important legal precedent that should guide future courts, but is forever beyond further Supreme Court consideration.

Judge Alito thinks that would set a dangerous and unconstitutional precedent in our system of equal justice under the law, where all pleas, grievances and petitions are received, heard and given all due consideration and respect.

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.

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