WASHINGTON (BP)–Supreme Court nominee Samuel Alito on Wednesday refused to affirm unequivocally Roe v. Wade as the “settled law of the land,” despite efforts to pin him down on the 1973 opinion legalizing abortion on the second day of questioning by the Senate Judiciary Committee.
The 18 committee members ended the first round of questioning Wednesday morning and began a second round of questions, with each senator getting 20 minutes.
Illinois Sen. Richard Durbin, a supporter of abortion rights, continued Democratic efforts to elicit a more precise response about Roe from Alito. Durbin referred to a statement made by new Chief Justice John Roberts.
“John Roberts said that Roe v. Wade is the settled law of the land. Do you believe that it’s the settled law of the land?” Durbin asked Alito.
“Roe v. Wade is an important precedent of the Supreme Court that was decided in 1973,” Alito said, declining to answer the question directly. “So it’s been on the books for a long time. It has been challenged on a number of occasions … and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes, in [Planned Parenthood v.] Casey, based on stare decisis. And I think that when a decision is challenged and it is reaffirmed, that strengthens its value” as stare decisis, the legal doctrine that says a court should not overturn its own decision unless there is a compelling reason to do so.
Still unsatisfied, Durbin again asked Alito, “Is it the settled law of the land?”
Alito replied, “If settled means that it can’t be re-examined, then that’s one thing. If settled means that it is a precedent that is entitled to respect as stare decisis and all the factors that I’ve mentioned come into play, including the reaffirmation and all that, then it is a precedent that is protected and entitled to respect under the doctrine of stare decisis in that way.”
Durbin told Alito he is “concerned that many people will leave this hearing with questions as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them.”
Planned Parenthood v. Casey is the Supreme Court’s 1992 opinion that upheld some state restrictions on abortion but reaffirmed the Roe decision.
Even if the Senate were to confirm Alito to the high court, he would not be the deciding vote in overturning Roe. The current nine-member court has least six members who have affirmed the 1973 ruling. One of those six is retiring justice Sandra Day O’Connor, a supporter of abortion rights who is sitting on the bench until her replacement is confirmed. It is not yet known where Roberts stands on abortion.
Later in the day, Sen. Orrin Hatch, R.-Utah, attempted to clarify an impression left by Durbin’s referral to Roberts’ view of Roe. Hatch said Roberts’ “settled law” comment was made during Roberts’ confirmation process to the D.C. Circuit Court of Appeals and not during his Supreme Court confirmation hearings in September.
“There’s a difference between a nominee for the circuit court of appeals saying that something is settled law — that he or she has to be bound by it — [and] somebody who is the nominee for the Supreme Court,” Hatch said.
In fact, Roberts did make a “settled law” comment during his Supreme Court confirmation hearing, although it was similar to what Alito said Wednesday. According to a transcript, Roberts said in September: “[Roe v. Wade is] 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. And it is settled as a precedent of the court, yes.”
Sen. Tom Coburn, R.-Okla., noted that Durbin once “was adamantly pro-life.”
“[H]e wrote multiple, multiple letters expressing that, up until 1989,” Coburn said.
Durbin, later in the day, said: “The voters of Illinois know that.” He added that he believes he is now right on the issue.
Sen. Sam Brownback, R.-Kan., who is pro-life, asked Alito about instances in which the Supreme Court has overturned its own decisions. Not hiding the fact that he would like to see Roe overturned, Brownback asked Alito about the 1896 Plessy v. Ferguson pro-segregation decision, which was reversed in 1954 by the famous Brown v. Board of Education ruling.
Brownback noted that Plessy stood as the law of the land for “twice the length of time” that Roe vs. Wade has stood.
“[Brown] overturned all these super duper precedents that had been depended upon in [Plessy], because the court got it wrong in Plessy. Is that correct?” Brownback asked, referencing a phrase that Sen. Arlen Specter, who is pro-choice, has coined.
“The court certainly got it wrong in Plessy, and it got it spectacularly wrong, and it took a long time for that erroneous decision to be overruled,” Alito said.
Brownback quoted several liberal scholars — most notably Laurence Tribe and Supreme Court Justice Ruth Bader Ginsburg — as questioning the legal reasoning of Roe.
On other issues:
— Alito was asked his thoughts on Article III, Section 2 of the Constitution, which many conservatives say allows Congress to limit what issues come before the court. The section states, in part, that the “Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Scholars call it the “exceptions clause.”
“The exceptions clause, obviously, gives Congress the authority to define the appellate jurisdiction of the Supreme Court and it can provide for various avenues by which cases get to the Supreme Court, and that has changed over the years. There has been a controversy — never resolved — over the exact scope of the authority,” Alito said, without taking a position on the issue.
— Alito was asked his views of the Constitution’s Full Faith and Credit Clause, which homosexual activists say they will use to challenge laws banning “gay marriage.” The clause says that “full faith and credit” must be given in each state to the “public acts, records, and judicial proceedings” of every other state. Homosexual activists argue that the Defense of Marriage Act — which gives states the right not to recognize another state’s “gay marriage” licenses — violates the clause.
“The full faith and credit clause, in general, means that one state must honor judgments that are issued by a court of another state … and it’s an important part of the federal system, so that we don’t have warring decisions in different states,” Alito said. “… The doctrine has certain boundaries to it. There are exceptions to it. It covers certain areas and doesn’t cover other areas. A challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine.”