- The Washington Times - Saturday, September 17, 2005

The last place I want to be is at the dentist; until I witnessed 18 senators (21 if you count those who “introduced” Judge John Roberts at his Supreme Court confirmation hearing) posture for the cameras and special interest groups. The dentist is looking better. At least he has painkillers. Nothing dulls the pain of pontificating senators.

Judge Roberts demonstrated more class, integrity and legal knowledge than most of his interrogators. The most laughable performance (as of last Tuesday) was by Sen. Joseph Biden, Delaware Democrat. After spending about 8 minutes making statements and not asking a question, Mr. Biden accused Judge Roberts of “filibustering” in his answer to one of the questions Mr. Biden eventually asked.

Mr. Biden’s body language, his arrogant and condescending attitude and use of the vernacular (“I hope you don’t still hold that view, man” and “Hey, Judge, how are ya?”) was improper and ill-mannered. Worse, though, was Mr. Biden’s amnesia.

Mr. Biden tried to make political hay out of a memo a young John Roberts wrote on Dec. 11, 1981, in which he referred to a “so-called right to privacy.” Three months after Judge Roberts wrote his memo, Mr. Biden voted in favor of the Hatch Amendment which, among other things, sought to declare the Constitution does not secure a right to abortion. By voting for an amendment whose purpose was essentially to obliterate the “so-called right to privacy,” Mr. Biden aligned himself with Judge Roberts’ thinking.

These hearings are an excellent classroom on contrasting views of the U.S. Constitution. One view, held mostly by Democrats, says the Constitution is open to the interpretation of judges to advance a social and cultural agenda that advocates of such policies know they do not have a voluntary prayer of getting through Congress. These include, but are not limited to, abortion and “gay rights.” The other side believes judges, as Judge Roberts put it, are like umpires, because “they don’t make the rules.” They are, he said, “servants of the law, not the other way around.”

That’s bad news for the left, which for four decades has counted on the Supreme Court to pay lip service to the Constitution while running roughshod over it. Judge Roberts effectively told the senators making law is their job and interpreting those laws in light of what the Founders had in mind when they wrote the Constitution is the job of judges. On several occasions, Judge Roberts used the word “limited” when referring to the role of judges and courts.

On the issue of greatest importance to social conservatives — abortion — Judge Roberts paid homage to precedent, but he carefully crafted his answer. He noted Planned Parenthood vs. Casey, while affirming Roe, dispensed with its trimester approach for when abortion might be regulated by the states and replaced it with a requirement no state place an “undue burden” on a woman seeking an abortion. Judge Roberts suggests in Casey, Roe’s “doctrinal bases of a decision had been eroded by subsequent developments.”

For those who believe Roe was wrongly decided (including some supporters of abortion rights), that is a significant statement. It indicates Judge Roberts is not a fundamentalist about previous rulings and that one court is not prevented from overruling the decisions of another court when new information is presented.

Speaking about the value of honoring precedent to avoid an upheaval in law and culture, former Boston University Law School Dean Ron Cass told Creative Response Concepts, a firm working in support of John Roberts, “Not all precedents are equal. Some are wrong when decided and grow weaker over time. Other precedents … such as Miranda v. Arizona … became stronger over time.” Clearly, Roe falls into the former category. Whether a Chief Justice Roberts will reach such a conclusion depends on the type of case he is asked to decide.

Roe is kept alive by artificial judicial means and will die a slow death. Just as certain legal arguments and precedents were established (such as the right to contraception) before Roe, so, too, will there be cases that continue weakening Roe until the states are again granted the power to decide the issue. By going slow, Judge Roberts and his pro-life colleagues will be able to lessen the impact of upheaval.

Cal Thomas is a nationally syndicated columnist.

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