A July 27 NY Times account of an AP interview (Tuesday) of Attorney General Alberto Gonzales provides a helpful prelude to the questioning Roberts will face on Roe v. Wade. I say "helpful" because it was only a matter of time before Roberts would have to clarify what he meant when he said, at his 2003 Senate confirmation hearing before joining the D.C. Court of Appeals, that the Roe precedent was "settled law." Here is the relevant cite from Gonzales:
"If youre asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because youre bound by the precedent," Mr. Gonzales said. "If youre a Supreme Court justice, thats a different question, because a Supreme Court justice is not obliged to follow precedent if you believe its wrong."Now that AG Gonzales has clarified it for Roberts and the rest of the country, the Democrats on the Judiciary Committee will not be able to claim that Roberts misled them back in 2003 regarding how he would adjudicate future abortion cases, given the 1973 Roe precedent. On this and other important issues, Roberts will have a grand opportunity and obligation to articulate his judicial philosophy at his confirmation hearing. Add to this the confusion over whether or not he was a member of the Federalist Society, and you have a situation where Roberts must step up and explain if he still holds the view of the Constitution and the Supreme Courts respective role in the federal government that is reflected in his early legal career.
At bottom, Bush, Roberts, and the GOP should remind themselves daily that they hold a 55-45 majority in the Senate, which should give Roberts all the more confidence that an unflinching presentation of his judicial philosophy is worth getting confirmed to the high court with a slimmer margin than otherwise would be garnered by a less forthright and clear expression of his judicial views. Given his reputation as a sharp intellect and adept courtroom advocate, if his principles are no less conservative than those for whom he worked in the past few decades, then Robertss confirmation hearing may very well present the clearest contrast of judicial views (Roberts versus the "living Constitution" cohort on the Judiciary Committee) in our lifetime.