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September 2005   
Roberts On Abortion By Mark Carroll

In a previous commentary (John Roberts? Irrelevant!), we showed that John Roberts, George Bush’s nominee for Chief Justice of the Supreme Court, is not pro-life as many are claiming. The Establishment media is telling us that in today's confirmation hearings he “dodged” the abortion issue. But did he? Decide for yourself (emphasis added):

Roberts: Precedent Settles Abortion Ruling
September 13, 2005 9:41 AM EDT

WASHINGTON - Supreme Court nominee John Roberts said Tuesday that the landmark 1973 ruling legalizing abortion was "settled as a precedent of the court" as he was immediately pressed to address the divisive issue on the second day of his confirmation hearings.

"It's settled as a precedent of the court, entitled to respect under principles of stare decisis," the concept that long-established rulings should be given extra weight, Roberts told the Senate Judiciary Committee.

Roberts dismissed any suggestion that his Catholic faith would influence his decisions if he were confirmed to be the nation's 17th chief justice. The Roman Catholic Church strongly opposes abortion.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., cited President Kennedy's statement in 1960 that he did not speak for his church on public matters and the church did not speak for him.

"I agree with that, Senator, yes," Roberts said.

"There's nothing in my personal views based on faith or other sources that would prevent me from applying the precedent of the court faithfully under the principles of stare decisis," Roberts said.

Stare decisis is Latin for "to stand by a decision" and legally translates into the doctrine that says courts are bound by previous decisions, or precedents, particularly when a case has been decided by a higher court.

Questioned about rights of privacy, the appellate judge cited various amendments of the Constitution that he said protect those rights, and said, "I do think the right to privacy is protected under the Constitution in various ways."

Specter, a moderate Republican who supports abortion rights, asked if the Roe v. Wade decision was a "super-duper precedent" in light of efforts to overturn it.

Roberts noted that the Supreme Court itself upheld the basics of Roe v. Wade in a 1992 case, Casey v. Planned Parenthood.

"That, I think, is the decision that any judge in this area would begin with," Roberts said.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the committee, focused on the balance of power between the executive branch and Congress - and Roberts' suggestion, in past writings, that favor the presidency and speak dismissively of the legislature.

After considerable discussion about a memo dealing with military benefits, the White House and Congress, Leahy simply asked if Congress has the power to declare war.

"Of course, the Constitution specifically gives the power to Congress," Roberts said.

Leahy also questioned Roberts about recent Bush administration documents on torture and interrogation, prompting another definitive statement from Roberts.

"No one is above the law and that includes the president," he said.

Specter pressed Roberts on whether the abortion ruling was settled law for him, established only for an appellate judge such as he or "settled beyond that."

"Well, beyond that, it's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not," Roberts said.

In the most recent major test of Roe v. Wade, the Supreme Court voted 5-4 in 1992 to uphold the core holdings of that 1973 decision and ban states from outlawing most abortions. Chief Justice William H. Rehnquist wanted to use that case, Casey v. Planned Parenthood, to overturn Roe, but he was stymied by moderate Justice Sandra Day O'Connor, who is retiring. The court said states could impose restrictions on the procedure that do not impose an "undue burden" on women.

Justice Antonin Scalia wrote a bitter dissent then, and is likely to push the court to revisit the issue.

An abortion case will be taken up by the court this fall, but it does not directly deal with the right to an abortion. The Supreme Court's next term begins Oct. 3.

Troy Newman, leader of Operation: Rescue, said anti-abortion activists weren't surprised by Roberts' comments but would watch him closely.

"We're concerned about these statements, but the proof will come when it's time for him to rule on these cases as a justice," Newman said.

Sen. Orrin Hatch, R-Utah, asked Roberts whether he was an originalist, a constructionist, a perfectionist or any of the oft-repeated legal definitions that analysts and activists apply to Supreme Court justices.

"I think, like most people, I resist the label. ... When pressed I prefer to be known as a modest judge. I appreciate the role of judge is limited," said Roberts, who said he tends to look at cases according to the facts and details and avoids an overarching judicial philosophy.

"I don't think the courts should have a dominant role in society, in addressing society's problems. Their role is to judge what the law is," he said.

Copyright 2005 Associated Press.