Wave Maker: Questioning Roberts on Roe

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Thursday, July 28, 2005

Questioning Roberts on Roe

It would appear to be the "elephant in the room," whether or not members of the Senate Judiciary Committee can expect Judge Roberts to answer questions regarding how he feels about Roe v Wade.

I don't care to spend time considering the arguments of the interest groups that oppose Roberts because they fear he indeed will be a vote to overturn Roe.

But here is a fabulous discussion at The Volokh Conspiracy about the difficulty, not of asking the question (or how to ask it), but of answering it. The professor begins:

"The question that seems least answerable to me by Roberts in a confirmation hearing is the one in which most people are concerned--whether he would overrule Roe v. Wade. Not because of the issue of whether Roe was rightly or wrong decided in the first place, but rather because there is a separate and independent question of parsing the Supreme Court's confused and confusing stare decisis jurisprudence."

There follows an informative discussion (including excerpts of the impressive jurisprudence of Judge Edith Jones) about the difficulty of applying the doctrine of stare decisis at the Supreme Court level because of the unusually fact-intensive examination that is required in order to determine whether the doctrine should be applied. He concludes:

"The key point here, though, is that there is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract. Given that, I don't see how Judge Roberts could meaningfully answer that particular question based on the lack of a solid factual record."

Mr. Volokh (as usual) provokes widely variant (and all interesting) comments from his readers, some of whom have taken up the challenge of formulating just the kind of question that will corner the nominee, and one of whom (based upon the analysis by Judge Jones) comes up with the right response.

It's a great read, if you want to look behind all the blather that you're likely to hear from MSM and the advocates.

Posted by: Wave Maker / 3:55 PM/ |