I watched as much of the replay of today’s Roberts confirmation hearing as I could, consistent with my family and blogging responsibilities. I would like to have watched more. First, it’s educational — I’m actually learning and re-learning law. Second, it’s therapeutic — I love watching Judge Roberts outduel his assailants, usually without breaking a sweat.
By and large, the questions I heard from the Democrats, and from the liberal Republican Chairman, seemed fair in substance. But (and this was hardly a surprise) some Senators marred their performance through their unwillingness to allow Roberts to answer their speeches/questions. Specter deserves credit for calling Kennedy on this.
The bottom line is that Roberts is doing very well and almost surely will be confirmed.
JOHN wonders: Yes, but what about the content of his answers? It seemed to me that he came very close to pledging loyalty to Roe v. Wade with his answers on stare decisis and the Fourteenth Amendment. He acknowledged Roe and, more important, Casey as precedents and bought into the “erosion” theory under which some precedents are more precedential than others. The implicit point of this is to distinguish Roe from Bowers, which decided that there was no Constitutional right to homosexual sodomy in 1986, but was overruled in 2004 because it was “eroded”–that is to say, Justice O’Connor changed her mind. And Roberts said that he agrees with the result in Griswold v. Connecticut and recognizes a general “right of privacy”–whatever its contours may be–in the Fourteenth Amendment’s guarantee of liberty.
As one of the relatively few who dislike Roe more because I am oppposed to judicial usurpation than because I am opposed to abortion, I had hoped that he would not give up all this ground so readily. It was hard to see any sign that he intends, as Chief Justice, any discontinuity with some of the Court’s more disturbing trends. The proof will come, of course, once he is confirmed and starts deciding cases.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill