Date: SEPTEMBER 14, 2005
BROWNBACK: I'm going to take you to the now probably most contentious social issue of our day -- and you've been debating and discussion it a great deal here already -- the issue of abortion.
It's at the root of much of the debate taking place in the country today. It has inflamed people. It has gotten them involved in the political process, folks that probably wouldn't have been previously, because the only way they saw that they could affect the system was get involved and try to elect a president, a Senate.
The president' lead applause line in the last election cycle was, "I'll appoint judges who'll be judges, not legislators." That that's an applause line at a political rally should say something about people's angst toward what the courts have done, and particularly rooted in this issue of abortion.
The very root of the issue is the legal status of the unborn child. This is an old debate. Whether that child is a person or is a piece of property is the root of the debate.
In our legal system, everything's either one of the two: you're either a person or you're a piece of property. If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses.
And I believe everyone agrees that the unborn child is alive. And most agree that biologically it is a life, a separate genetic entity. But many will dispute whether it's a person. These may be legal definitions, but that's the way people would define it.
Could you state your view as to whether the unborn child is a person or is a piece of property?
ROBERTS: Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.
I will confront issues in this area as I would confront issues in any area that come before the court, and that would be to fully and fairly consider the arguments presented and decide them according to the rule of law. And I don't think it would be appropriate for me to express views in an area that could come before the court.
BROWNBACK: I hope you would agree with me that this is at the core of the issue, obviously, the competition between the woman's right to choose and the legal status of the unborn, and it permeates so much of our debate, and it's why a lot of us believe it should be within the political system to discuss.
I want to point out one thing to you, and I don't think it probably needs to be addressed, but I want to point it out.
In Plessy v. Ferguson, it's been cited yesterday along with the Brown decision, which my state is the proud home state host of Brown v. Board of Education. And I personally knew two of the lawyers that practiced in that case, and they were noble gentlemen.
They overturned Plessy, as you know, which was an 1896 case. So Plessy had stood for nearly 60 years.
We've had a discussion about this "super" stare decisis issue. And I just want to hold up a quick chart if I could -- if I've got it back here -- the notion that, because Roe has not been overturned in 30-some cases, makes it a "super" stare decisis: Plessy had not been overturned in a series of cases over a period of 60 years, where the court at each time looked at it, discussed it, decided against overturning it.
Yet I don't think anybody would agree that Plessy shouldn't have been overturned, and certainly not anybody from my state. We're the host state of Brown v. the Board of Education.
But the notion that by tenure a (inaudible) standing becomes a "super" stare decisis or by number of times that it's been looked at it become a "super" stare decisis I don't think finds a basis in law nor in practicality, as you noted. And some of these decisions up there, I would point out to you, are pretty onerous statements that the court put forward itself in how they upheld Plessy for a number of years.
And, yet, thank goodness that the court overruled it in the Brown v. the Board of Education's case that it eventually decided.
BROWN: I want to also point out to you something -- and you talked a lot about it yesterday, and I really appreciate this -- about facts matter in a case. And judges decide cases. And cases are built on facts. And you have the facts and you have the law but the facts matter.
There's no one in my state that wouldn't be honored to show you the school building where Brown v. the Board of Education was decided. We just dedicated it last year. The president was there, 50th-year anniversary.
You can see the path where the little girl walked to the school and had to walk by the all-white school to get there. And you look at that set of facts (inaudible). You look at it and you say, "That's wrong." And you're ennobled that we no longer do that.
I held a hearing earlier this year on the factual setting of Roe v. Wade and Doe v. Bolton; the factual setting of these two cases. The two plaintiffs in those cases testified in front of the Judiciary Subcommittee. And I was there and Senator Feingold.
Both of them talked about the false statements of record that those cases were built upon, the false statements.
Listen to this statement by Sandra Cano. She's Doe of Doe v. Bolton. This is what she said, June 23rd, 2005, in Judiciary Subcommittee that I chaired.
Quote, "Doe v. Bolton falsely created the health exception that led to abortion on demand and partial birth abortion."
This is her statements now.
"I, Sandra Cano, only sought legal assistance to get a divorce from my husband and to get my children from foster care. Abortion never crossed my mind. Although, apparently, it was on the mind of the attorney from whom I sought help."
Further quote, "At no time did I ever have an abortion. I did not seek an abortion nor do I believe in abortion."
This is Sandra Cano, the Doe of Doe v. Bolton.
And then she goes on to say, "Doe v. Bolton is based on lies and deceit. It needs to be retired, retried or overturned" -- which she's trying to get it retried.
BROWNBACK: "Doe is against my wishes. Abortion is wrong." That's "Doe" of Doe v. Bolton.
Now here's Norma McCorvey, "Roe" of Roe v. Wade. This is just the factual setting. "I believe I was used and abused by the court system in America. Instead of helping a woman in Roe v. Wade, I brought destruction to me and millions of women throughout the nation."
Sandra McCorvey, quote, "This is really troubling, too. I made up the story that I had been raped to help justify my abortion" -- Sandra McCorvey.
Facts. Facts. In Roe v. Wade and Doe v. Bolton, falsified statements. And upon this we've based this constitutional right that's been found that we now have 40 million fewer children in this country to bless us with?
And I want to take another point on that to tell you -- we talked a lot about the disability community, and well we should, and the protection needed for the disability community. And that's important, because I think it really helps people that need help, but it helps the rest of us to be much more human and caring.
Senator Kennedy is helping me with a bill because a number of children never get here that have disabilities. Unborn children prenatally diagnosed with Down's Syndrome and other disabilities -- I don't know if you know this, but there was a recent analysis, and 80 percent to 90 percent of children prenatally diagnosed with Down's Syndrome never get here -- never get here. They're aborted in the system.
And people just say: Look, this child's got difficulties. And we even have waiting lists in America of people, today, willing to adopt children with Down's Syndrome. And we will protect that child -- as well we should, under the Americans with Disabilities Act and other issues -- when they get here.
But so much of the time, and with our increased ability of genetic testing, they don't get here. Diagnosed in the womb, system that encourages this child to be destroyed at that stage -- and this is all in the records.
And we are the poorer for it as a society.
All the members of this body know a young man with Down's Syndrome named Jimmy. Maybe you've met him, even. He runs the elevator that takes the senators up and down on the Senate floors. His warm smile welcomes us every day. We're a better body for him.
He told me the other day -- he frequently gives me a hug in the elevator afterwards. I know he does Senator Hatch often, too, who kindly gives him ties, some of which I question the taste of, Orrin...
... but he kindly gives ties.
HATCH: It doesn't have to get personal...
BROWNBACK: And Jimmy said to me the other day after he hugged me; he said "Shhh, don't tell my supervisor. They're telling me I'm hugging too many people."
BROWNBACK: And, yet, we're ennobled by him and what he does and how he lifts up our humanity and 80 to 90 percent of the kids in this country like Jimmy never get here.
What does that do to us? What does that say about us. And I would just ask you, Judge Roberts, to consider -- and probably you can't answer here today, whether the individuals with disabilities have the same constitutional rights that you and I share while they're in the womb.
ROBERTS: Well, Senator, I appreciate your thoughts on the subject very much. I do think, though, since those precise questions could come before the courts that that is in the area that I have to refrain from answering.
BROWNBACK: Now, I just hope one thinks about people like Jimmy and a system, now, that scientifically can figure out the nature of this child's physical or mental state at an early point and is having many of them destroyed at that point in time. And that's taking place in our country today.
I have little time left. I want to say one final thing to you. And I appreciate you and I appreciate your inability to answer some of these questions. They're tough questions. And they're questions that are live in front of us as a society.