John Roberts Hearings So Far

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John Roberts began his answers to questions from senators this morning, responding to Arlen Specter, Patrick Leahy, Orrin Hatch, Ted Kennedy, Chuck Grassley, and Joe Biden. Jon Kyl should be starting things off again at 2:30. My oveall impession is that he's extremely well-prepared, and those who are trying to corner him are having a very difficult time of it. Ted Kennedy was a lot nicer and much more fair than I expected (based on how he's treated other Bush nominees in recent years), though Arlen Specter did have to step in a few times to tell him to let the judge answer the question. If there was any loser in this morning's proceedings, it would have to be Joe Biden, who was just plain rude and needed to be reprimanded more than once by the committee chair. He called the nominee "Man!" in a way that really sounded morally condescending to my ear. Three times in a row he refused to let Roberts answer the question he had just asked, all the while complaining that he hadn't answered the question. If you interrupt someone before they finish answering, it's pretty stupid to claim that they were being evasive in not answering.

As far as I can tell so far, the only trouble spot for Roberts has been some memos he wrote 25 years ago that he doesn't now agree with that represented his employer's position and how best to approach defending such a position. Biden and Kennedy in particular have been pressing him on these issues, but Biden's got a stronger claim, I would say. There is some first-person language that at first blush sounds as if it's Roberts's own view, and and he was saying that he never endorsed some of the things he was recommending in those memos to be argued to support the official administration positions. Ultimately it matters little if he now doesn't believe something he might have believed then, but my suspicion is that Biden is trying to push an impression of dishonesty.

The issue the NPR commenters had the most interest in was abortion. Not suprisingly, most of Specter's questioning had to do with Roe v. Wade, precedent, and stare decisis. A few of the others also raised some important questions that had some bearing on those issues, particularly with respect to Chief Justice William Rehnquist's willingness to accept Miranda rights as status quo on the grounds that they were so much a part of American popular culture, even though he still believed them to have been wrongly established in the first place. Roberts has carefully avoided making any comment on how he would connect any of these more general issues to specific cases like abortion that might come before the Supreme Court, but he made a few things clear. Contrary to the view of Justice Thomas (that I endorse), he considers precedent to be a prima facie consideration that needs to be respected. Other issues may outweigh or trump that respect, but it's a respect that needs to be consideed. I'm philosophically opposed to that very notion, because the fact that some judge wrongly decided a case does not give us any reason to continue to enact a wrongly decided decision. It's the very reason why a judge should overturn it. Still, this is the standard view among most judges, including all eight other justices of the most recent lineup of the Supreme Court.

In light of this, he holds that Roe v. Wade's central claim that was held up by Casey v. Planned Parenthood (but not the framework of Roe that Casey dismantled) is such a precedent that needs to be respected as precedent. He pointed out that sometimes cases like this can become established enough under stare decisis that it will take much stronger arguments to overturn them, while other cases might not, and it all depends on how the stare decisis conditions will apply in the particular case, which is what he wouldn't comment on. He pointed out that Chief Justice Rehnquist did not apply the reasoning he used regarding Miranda rights in the area of abortion, which means he did not himself accept the analogy between the two cases that the Democratic senator (I don't remember offhand which one; was it Leahy?) was suggesting but that he would not comment on his own views about a particular case that might come before the Court.

Nina Totenberg of NPR commented later that she thought his insistence on the central holding of Roe as precedent subject to stare decisis committed him to not overturning it. I had to wonder if she'd been listening to the same testimony I'd been hearing, because he quite clearly stated that holding a precedent with respect according to stare decisis does not in any way mean that it can't be overturned, just that there needs to be higher justification than there would be with a law that hasn't been upheld by a court precedent. If he'd been dropping a hint anywhere, I would have guessed it to be when he mentioned that Rehnquist wouldn't have applied his reasoning in the Miranda case to abortion, but if that was a hint it was very carefully worded. I don't think his statements about stare decisis and respect for precedent amount to a hint at all, and I imagine this is just wishful thinking on Totenberg's part. It gets worse, though. The very next segment on NPR began with a news report that just barely fell short of saying that John Roberts had declared Roe v. Wade settled law that he would not overturn.

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