- The Washington Times - Tuesday, September 13, 2005

Excerpts from yesterday’s Senate Judiciary Committee hearing on the nomination of Judge John G. Roberts Jr. to be chief justice of the U.S. Supreme Court.

Sen. Arlen Specter, Pennsylvania Republican: Black’s Law Dictionary defines stare decisis as “let the decision stand,” to adhere to precedents and not to unsettle things which are established. Justice [Antonin] Scalia articulated, quote: “The principal purpose of stare decisis is to protect reliance interest and further stability in the law.” …

Would you agree with those articulations of the principles of stare decisis as you had contemplated them, as you said you looked for stability in the law?

Judge Roberts: Yes, Mr. Chairman, I would. … Hamilton, in Federalist Number 78, said that to avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents. So even that far back, the Founders appreciated the role of precedent in promoting even-handedness, predictability, stability, the appearance of integrity in the judicial process.

Mr. Specter: I move now to Casey versus Planned Parenthood. … In Casey, the key test on following precedents moved to the extent of reliance by the people on the precedent, and the — Casey had this to say, in a rather earthy way. “People have ordered their thinking and living around Roe. To eliminate the issue of reliance, one would need to limit cognizable reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail.” That’s the joint opinion, rather earthy, in its context. Would you agree with that?

Judge Roberts: Well, senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion but also in other opinions outside that area of the law. The principles of stare decisis look at a number of factors, settled expectations one of them, as you mentioned. Whether or not particular precedents have proven to be unworkable is another consideration on the other side. Whether the doctrinal bases of a decision have been eroded by subsequent developments. …

Mr. Specter: But there is no doctrinal basis erosion in Roe, is there, Judge Roberts?

Judge Roberts: Well, I feel the need to stay away from a discussion of particular cases. I’m happy to discuss the principles of stare decisis. …

[I]n the particular case of Roe — obviously, you had the Casey decision … in which they went through the various factors on stare decisis and reaffirmed the central holding in Roe while revisiting the trimester framework and substituting the undue-burden analysis for the strict scrutiny. So as of ‘92 you had a reaffirmation of the central holding in Roe. That decision — that application of the principles of stare decisis — is, of course, itself a precedent that would be entitled to respect under those principles.

Mr. Specter: The joint opinion then goes on … to the core issue about women being able to plan their lives. … “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” Do you agree with that statement, Judge Roberts?

Judge Roberts: Well, yes, senator, as a general proposition, but I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions, and I’m reluctant to do that. …

Sen. Edward M. Kennedy, Massachusetts Democrat: To start my inquiry, I want to discuss with you the Brown versus Board of Education, which you have already mentioned this morning, which I believe is the most important civil rights decision in our lifetime. …

Judge Roberts: I do.

Mr. Kennedy: Yeah, and do you believe that the court had the power to address segregation of public schools on the basis of the equal protection clause of the Constitution?

Judge Roberts: Yes. …

Mr. Kennedy: Do you have any concerns or reservations about the constitutionality of the 1964 Civil Rights Act that outlawed racial discrimination in public accommodations, employment and other areas?

Judge Roberts: I don’t think any issue has been raised concerning those. …

Mr. Kennedy: Do you believe today that we need the federal laws to assure that all our citizens have the equal access to the voting booth and do you basically support the 1982 Voting Rights Act? …

Judge Roberts: You will recall … this was 23 years ago. I was a staff lawyer in the Justice Department. … It was the position of the administration, for which I worked, that the proposal was to extend the Voting Rights Act without change. …

Your position at the time … was the position that eventually prevailed. …

Mr. Kennedy: That was the law of the land that court after court decided. …

Judge Roberts: Well, senator, you disagree —

Mr. Kennedy: But we were —

Mr. Specter: Senator, let him finish his answer. …

Judge Roberts: Well, and the Supreme Court —

Mr. Kennedy: That’s all —

Mr. Specter: Let him finish his answer, Senator Kennedy.

Judge Roberts: The point is — and again, this is revisiting a debate that took place 23 years ago. …

Mr. Kennedy: But I’m interested today in your view. Do you support the law that Ronald Reagan signed into law? …

Judge Roberts: Certainly. … And the point I would make is twofold, that those, like President Reagan, like Attorney General Smith, who were advocating extension of the Voting Rights Act without change, were as fully committed to protecting the right to vote as anyone.

Mr. Kennedy: Right. Could I —

Mr. Specter: No, now let him finish his answer, Senator Kennedy.

Judge Roberts: And the articulation of views that you read from represented my effort to articulate the views of the administration and the position of the administration … for which I worked 23 years ago.

Mr. Kennedy: Well, after President Reagan signed it into law, did you agree with that position of the administration?

Judge Roberts: I’d certainly agree that the Voting Rights Act should be extended. …

Sen. Joseph R. Biden Jr., Delaware Democrat: [During her Senate confirmation hearing] Justice [Ruth Bader] Ginsburg said precisely what position she agreed on. Did she, in fact, somehow compromise herself when she answered that question?

Judge Roberts: She said “no hints, no forecasts, no previews.”

Mr. Biden: No, no. Judge, she specifically, in response to a question whether or not she agreed with majority or minority opinion in Moore versus the City of Cleveland, said explicitly, I agree with the majority, and here’s what the majority said, and I agree with it. My question to you is, do you agree with it or not?

Judge Roberts: Well, I do know, senator, that in numerous other cases — because I read the transcript —

Mr. Biden: So did I, judge.

Judge Roberts: She took the position that she should not comment. Justice O’Connor took the same position. She was asked about a particular case.

Mr. Biden: Aw, judge, judge —

Judge Roberts: She said, “It’s not correct for me to comment.” Now, there’s a reason for that —

Mr. Biden: But —

Mr. Specter: Wait a minute, Senator Biden. He’s not finished his answer.

Mr. Biden: He’s filibustering, senator. But OK, go ahead. …

Judge Roberts: That’s a bad word, senator.

Mr. Biden: That’s what we do, too. Go ahead — go ahead and continue not to answer.

Judge Roberts: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might come before the court.

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