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Opening Arguments

Roberts, Day 2

Here are the highlights of Day 2 of the Roberts confirmation hearings yesterday. Note how many different ways various senators try to get the nominee to give a hint on how he might vote on certain issues that might come before the court. A nominee can't answer such questions because that would mean he couldn't hear cases with an open mind. So, senators are trying to get Roberts to violate one of the most sacred judicial tenets. What does that say about the senators?

It should also be apparent that a lot of the senators care an awful lot about Precedent. That would seem to make them believers in the slow evolution of the law, which means they should also worry about the plain meaning of the Constitution and its connection to the accumulation of common law. Not so. Whenever you hear "precedent," think "Roe vs. Wade." Since, 1) there is absolutely nothing in the Constitution about abortion a woman's right to choose, 2) The justices who decided Roe made up constitutional principles out of whole cloth, usurping state legislatures all across the country, it follows that, 3) the only way to keep justifying Roe is to put precedent over everything else. If I may borrow an analogy that others have used: If we start on a journey with a specific destination in mind and somewhere make a wrong turn, is it more important to keep going in the wrong direction or get back on the right path? Senators got Roberts to admit that precedent is VERY IMPORTANT, but note that he did not say it trumps everything.

Cynicism is appropriate for Roe no matter what you think about this issue. (My own view is that, if we agree that life ends with brain death, it makes sense to define the beginning of life with brain function, so that's where I would draw the line between personal decision and state intervention in abortion.) Roe is the epitome of judicial activism and using the court for a legislative function it should not perform.

And isn't there something sad about making the right to terminate even potential life the most important thing about a Supreme Court nomination?