Opposition to the confirmation of John Roberts centers on one issue –abortion, and in particular uncertainty as to whether Roberts would vote to overturn Roe v. Wade. If special interest groups like NOW and NARAL were confident that Roberts would not so vote, they would quickly conclude that he’s the best they can hope for under the circumstances. They would then call of “the dogs” (Senator Schumer and company) and Roberts would be confirmed with unanimity or something close, as Ruth Bader Ginsburg was.
The abortion lobby knows that Roberts can’t be expected to tell the Senate how he would vote in a case that raised the issue of whether Roe should be overturned. But they feel justified in demanding an answer to the question of whether Roberts thinks Roe was correctly decided. Roberts, of course, could believe that Roe was incorrectly decided and still conclude that it should not be overturned after more than 30 years. But the abortion lobby wants to erase any doubt as to how he would vote by having him affirm that Roe is correct.
The problem is that virtually no one of any repute in the legal community believes that Roe was correctly decided. Steve Chapman demonstrates this in the Washington Times. He notes that Archibald Cox, the liberal ex-Harvard law school dean, once said, “Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun [in Roe] are part of the Constitution.” And another liberal, the late Stanford law school dean John Hart Ely, said the opinion “is not constitutional law and gives almost no sense of an obligation to try to be.”
Moving further to the left, Lawrence Tribe has written, “behind its own verbal smokescreen, the substantive judgment on which [Roe] rests is nowhere to be found.” And Justice Ginsburg herself called the decision an act of “heavy-handed judicial intervention” that “ventured too far.”
In other words, the opposition to John Roberts, and the “jurisprudence” of the leftist portion of the Democratic party, rests on the fiction that Roe v. Wade interprets the Constitution correctly. His opponents would require that Roberts agree to an insupporable proposition as a condition of his confirmation. The Democratic portion of Roberts’ hearing may well resemble the Church inquisitors attempting to force Galileo to affirm that the earth is the center of the universe.
JOHN adds: I was in law school when Roe was decided, and I still remember the astonishment with which the opinion was greeted by legal scholars (let alone practicing lawyers). A poll of law professors was taken not too long after the decision came out, and my recollection is that more than 80% disagreed with it. So the Democrats are in the difficult position of decrying everyone outside a very narrow slice of professional opinion as “out of the mainstream.”
However, this is one of many arguments that the Republicans can win, but only if they make it. I would be surprised if Roberts says, before the Judiciary Committee, what he undoubtedly thinks: that Roe was wrongly decided.
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