Which Is It?

| Tue Sep. 13, 2005 11:24 PM EDT

Via Jessica of Feministing, I see that confirmthem.org, a conservative site watching the John Roberts confirmation hearings, has a couple of contrasting posts worth reading. First, a poster named Andrew was not at all pleased with many of Roberts' answers:

Repeatedly, Judge Roberts said things like this: "if you think that the decision was correctly decided or wrongly decided, that doesn't answer the question of whether or not it should be revisited." This is the exact antithesis of judicial modesty and humility, and is instead a blank check that allows judges to write activist decisions without fear of later being overturned by their modest and restrained successors. It is a recipe for perpetuating judicial mistakes, and undermining constitutional government. Yes, judges should be bound down by precedents, but only precedents that they are convinced may have been decided correctly.

Read the whole post, it's from a staunchly conservative point of view, but thoughtful and well-considered. Looked at in a certain light, Roberts did seem to go slightly out of his way to please some of the Democratic senators—Sen. Herbert Kohl certainly appreciated the fact that Roberts apparently agrees with Griswold, which found that the Constitution contained a right to privacy and right to contraception—and didn't quite go out of his way reassure the conservative senators that he was on their side. On the other hand, Roberts was mostly taciturn and evasive, so all we can really do is read the tea leaves. Another confirmthem.org post read them this way:

A top-flight, leading conservative pro-life lawyer with a vibrant Supreme Court practice whose name most readers of this forum would know just walked into the room where I'm sitting. He was thrilled about Roberts' answers during the dialogue with Specter and indicated his strong approval and endorsement. He explained that Roberts's answer was carefully framed to provide a basis for revisiting and overturning Roe in the future. Specifically, he indicated that Roberts said that precedent could be overturned on the basis of changing circumstances.

The latter still seems much more likely to me. Besides, as has been discussed before, Roberts could help effectively neuter the right to choose in many states by voting against Planned Parenthood in a case coming before the court this fall, so in many ways, the question of "Keep Roe, overturn Roe?" is beside the point.

In non-abortion news, meanwhile, Marty Lederman has an important discussion of yet another issue discussed during the hearings: On whether Congress can, say, prohibit the president from using torture.

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