Topic: Roe v. Wade and Stare Decisis
Date: SEPTEMBER 13, 2005
You know, Senator Specter came right out of the chute asking you about stare decisis and Roe and other related-type matters and that's an important question.
As I understand it, you committed to Senator Specter that you would bring no hidden agendas to this matter, that you would consider any case that came up under Roe or any other case that might impact stare decisis and that you would apply reasonable, professional analysis to that, drawing on the history of courts and their opinions in dealing with these cases and would try to make a fair and honest and objective decision.
Is that what I understood you to say?
ROBERTS: That's what I understood my testimony to be, yes, Senator.
SESSIONS: And you are not saying, one way or the other, how you would rule on Roe or some of the other cases that have been...
I feel that it would be very inappropriate for me as a nominee to tell how I would rule on a particular case that might come before the court.
SESSIONS: Well, I would like to know how you would rule on a lot of those cases, too, but I didn't ask you when you came and talked with me, and I don't think it's appropriate.
I don't think those of us who are politically conservative ought to look to the courts to promote our conservative agenda through the manipulation of interpreting words of the Constitution or statutes.
SESSIONS: I don't think liberals have a right to ask the court to promote their agenda by twisting the plain meaning of words to accomplish an agenda.
What we need is what you said -- an umpire, fair and objective, that calls it like they see it, based on the discreet case that comes before the judge. And I think that's most important.
And I would just say I don't know the answer to those questions legally and how a law comes out, but I would just offer that our polling data continues to show that our young people and numbers in general are showing that the people are more hostile to abortion than they used to be.
Perhaps it's seeing the sonograms and those kind of things, they -- 75 percent, according to a Harris survey, said that they didn't think an abortion was proper in the second trimester; 85 percent said they didn't think it was proper in the last trimester.
I just saw an interesting article by Mr. Benjamin Wittes. He writes for The Washington Post. He declares he's pro-choice, and says, let go of Roe.
And he goes into an analysis of it. He says -- he said, "I'm not necessarily thinking Roe ought to legally be overturned, but if it does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating a justice who might bury it once and for all."
This is in Atlantic Monthly, January of this year.
And he goes on to say, "Roe puts liberals in the position of defending a lousy opinion. It disenfranchised millions of conservatives on an issue about which they care deeply, while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support."
He goes on -- as have others -- he goes on to say this, "The right to an abortion remains a highly debatable position, both jurisprudentially and morally."
SESSIONS: And he also noted that, "In the years since the decision, an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground, but thousands of pages of scholarship notwithstanding, the right to abortion remains a constitutionally shaky proposition. Abortion policy is a question that the Constitution, even broadly construed, cannot convincingly be read to resolve."
So that's one opinion, I'm just saying, you will have to deal with.
And I just don't think that we ought to take the view that, that matter is open and shut.
And I hope that you -- we will take you at your word that your mind is open and you will evaluate the matter fairly according to the high standards of justice that you can bring to bear to that issue and any others like it that come up.
Will you give us that commitment?
ROBERTS: Absolutely, Senator.
And I would confront issues in this area, as any other area, with an open mind in light of the arguments, in light of the record, after careful consideration of the views of my colleagues on the bench -- and I would confront these questions just as I would any others that come before the court.
SESSIONS: Well, I'm of the view that the Constitution is a contract with the American people, that developments will occur that clearly fit within the ambit of a fair reading of that Constitution that were never contemplated by the founders.
Things do change and we have to apply new circumstances.
But wouldn't you agree a judge should never make an opinion that is beyond what a fair interpretation of the Constitution would call for?
SESSIONS: Judge Roberts, thank you for responding to my questions and to those of the other members of this body.
You have been open, honest and direct in providing a great view of your judicial philosophy and how you approach cases.
I appreciate the fact that you have correctly avoided some questions, some you should not answer. You hadn't read the briefs and heard the arguments and thought about it -- but you have carefully answered the appropriate questions, and we respect you for it.
Thank you, Mr Chairman.
SPECTER: Thank you, Senator Sessions.
The vote is now in progress.
We will recess until 5:05, at which point we will call on Senator Feingold for his 30 minutes of questioning.
We stand in recess.