Roberts Stays Clear of Abortion Specifics

In a day of questioning that often dealt with the issue of abortion, John G. Roberts affirmed on Tuesday that there would not be a "dramatic departure" in his judicial philosophy from that of former Chief Justice William H. Rehnquist, a judge that Roberts admires and is considered by many to have moved the Supreme Court to a more conservative stance during his tenure.

As the confirmation hearings in Washington, D.C., by senators got underway to determine whether or not Roberts will become the 17th chief justice of the Supreme Court, the nominee said he would respect past precedent but stopped short of saying whether he would favor overturning the Roe v. Wade decision, saying various times that he would refrain from commenting on cases that could soon come up.

Jay Sekulow, chief counsel for conservative Christian group the American Center for Law and justice said Roberts' comments "left the door open" to the possibility that Roe v. Wade would be overturned.

"As someone who takes a pro-life position, I was extremely pleased with the answers he gave," he said, according to the Washington Post.

Sen. Lindsey Graham (R-S.C.) tried to understand what kind of justice Roberts would be by asking him to give a general view of himself considering that conservative chief justice William H. Rehnquist was someone he admired and whom he had been a clerk for.

Roberts said that he hesitated "to be put in anybody’s mold," but said his judicial approach was similar to that of the late justice.

"The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true?" asked Graham.

Roberts replied "Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for."

Roberts also answered in the negative when asked if the term "strict constructionist" made him feel uncomfortable. Roberts defined the term as someone faithful to the text of the constitution, and the intent of those who drafted it.

At the beginning of Tuesday’s hearings, Roberts was questioned by Sen. Arlen Specter (R-Penn.) about a memorandum where Roberts wrote about the “so-called right to privacy,” which is the basis for the Roe v. Wade decision that legalized abortion.

Pro-choice groups have used that quote to imply that Roberts holds the right to privacy in low esteem, and therefore would be inclined to also want to overturn the landmark 1973 case, in order to ban the practice of abortion.

During questioning, Roberts enumerated several ways that the right to privacy existed in the constitution, adding that in the in the memorandum, he was using the same type of language a skeptic of the right to privacy was using in order to make a point, not because it was his personal opinion.

Later, Senator Dianne Feinstein (D-Calif) asked if he believed that this view also extended itself to matters regarding the “beginning and end of life,” which Roberts declined to speak about saying that it would inappropriate to discuss the matter because future cases could deal with that topic.

The matter of whether previous Supreme Court rulings had weight came up in the context of the Roe v. Wade decision.

Cathy Cleaver Ruse, of the Family Research Council, a conservative Christian group applauded Roberts' response to the Roe v. Wade questioning.

"Specifically we were pleased with Judge Roberts' answers about Roe v. Wade. Judge Roberts refused to give hints or projections about how he might evaluate a future abortion case before the Court," she said in a released statement.

She also commended Roberts for limiting himself to explaining why stare decisis was important. The Latin phrase, which means, "to stand by the decision,” is a legal term that refers to the weight past decisions are given to new cases.

During questioning, Specter asked Roberts if the principles of stare decisis, applied in the landmark abortion case.

Specter began by giving an example of the 2000 case, U.S. v. Dickerson, which upheld the earlier “Miranda” case, probably known best for instituting the “you have the right to remain silent…” warning during police arrests.

In that case, Justice William H. Rehnquist voted for upholding Miranda because it had become “so embedded in routine police practice to the point where the warnings have become a part of our national culture.”

Specter wanted to know if the same type of ruling, following the stare decisis principles, could be applied in a future case challenging Roe v. Wade.

“Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?” asked Specter.

Roberts replied that the Supreme Court applied that principle in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey which reaffirmed the right to an abortion.

“And the question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?” Specter asked.

Roberts replied that since it “gets to the application in a particular case,” he would not answer, adding that previous court nominees had generally declined to answer questions dealing with the application of legal principles in particular cases.

Specter also asked Roberts if he believed that the right to privacy existed in the constitution. Roberts replied that that right was protected under the constitution in various ways, including examples such as the right of people to be secure in their homes, the freedom of religion and privacy in the matters of conscience. He added that certain aspects of the right to privacy were part of the liberty protected under the due process clause in the constitution.

Roberts explained that in the memorandum, he was using the same type of language a skeptic of the right to privacy was using in order to make a point, not because it was his personal opinion.

Later, Senator Dianne Feinstein (D-Calif.) returned to the issue, and asked if “this implied right of privacy applies to the beginning of life and the end of life.”

Roberts reiterated his earlier comments that the right to privacy existed in the constitution and was protected but he would not say if it applied in the case of the beginning and end of life because he said it would not be appropriate to speak on the matter since that issue would most likely come up in future cases during his time as a judge.