Specter happens to be right about this. The nominee is under no compulsion to answer how he would rule on any particular set of hypotheticals.

The idea that a nominee to a federal court cannot fairly be asked any question about substantive law is silly.  It is one thing to say that a nominee should not be asked how he or she would rule about the specific facts of a case that is likely to come before him/her if confirmed.  But there is no reason that questions on the order of generality of "do you believe that there is a constitutional right to privacy that includes a right to abortion?" cannot be answered.

Consider the following exchange:

"Do you believe the Constitution is the supreme law of the land?"  "I'm sorry, Senator, but that issue might come up in a case I might someday hear, and therefore I cannot comment on it."

Is there any good grounds for distinguishing that question from a question about the general legitimacy of Roe?

OK, I understand on theoretical grounds why nominees shouldn't opine on issues that might come before them. But, if I may return to the reality-based community for a second, isn't it silly to have a process where nominees are basically encouraged to lie, and we're all supposed to pretend they're not? I mean, how convenient that the only people in the entire country who don't have an opinion on abortion are lawyers who have spent most of their careers in constitutional law?

The fact is, the legal argument against nominees stating opinions on cases has become a convenient excuse for the real reason they don't want to do it, especially if they're Republican: because doing so would inevitably piss off either the right or the left, and cause a huge political problem.

Here's the dialogue I'd like to hear in the Senate:

Senator: Judge Roberts, I am sure that, as a man who has devoted his entire life to the practice of law, you have given considerable thought to past decisions of the Supreme Court and have your own opinions about many of those decisions. Is this correct?

Judge Roberts: Of course, sir.

Senator: As a judge, when a case is presented to you concerning a point of law about which you have opinions yourself, what role do your opinions play in determining your decision?

Judge Roberts: Well, certainly I don't totally ignore my own thoughts. And as a Supreme Court justice I am hired in part to use my own judgment to interpret the law as best I can in accord with the text of the Constitution, past decisions, and the law as written. But a good judge must enter a case with his or her personal opinions suspended. He or she must listen carefully to both sides of the case as argued and be open-minded. When I make my decision, I certainly will take into account my own beliefs about what the law means, but I will do so only after carefully considering all sides of the argument. And I will be open-minded enough to be swayed in either direction, depending on which arguments are most convincing.

Senator: Good answer Judge. I know you must have some thoughts about Roe v. Wade--and in fact, were at least in part responsible for a brief that stated that Roe was wrongly decided. Is it incorrect to assume that you have thought about Roe before?

Judge Roberts: No, senator, I have thought about it extensively, as has any serious student of the law.

Senator: Good. Now accepting the fact that you are going to keep an open mind if you are ever presented with an opportunity to review Roe v. Wade and therefore would not prejudge the case, and recognizing the fact that, because of your open mindedness, your opinions might change, do you currently agree with the statement in a prior brief for which you were responsible that Roe was "wrongly decided"? Given that the statement is a matter of public record already, I think we must assume that that is your opinion unless you state otherwise.

Judge Roberts: Senator, that was the opinion of the administration I represented.

Senator. Well, we all know that!  But is it your opinion as well? Given your role in producing the brief, I think the senate is correct to assume that it is unless you say otherwise.

Judge Roberts: I do think that there are problems with the way Roe v. Wade was decided.

Senator: Can you explain why you think it was wrongly decided, again with the caveat that what you say here is only your current opinion as a man who has thought deeply about the law, but who is still open-minded and could change his opinion were he to hear a convincing argument for an alternative opinion? It seems to me that Roe finds that the right to privacy is one of the ninth amendment's "unenumerated" rights. Do you object to this, for instance, or is it something else?

ETC ETC . . . The point is that I think with careful questioning there's a way to get fairly specific answers without requiring the nominee to prejudge any case. It does seem silly to assume that an unknown bias is better than a bias revealed. In hiring a judge, we want someone who has solid opinions and good reasoning--and we certainly have a right to question them about their opinions and reasoning--and who also doesn't have any biases (and particularly any hidden biases) that would make him or her unfair to the plantiffs and defendants who appear before him or her. 

 

 
  

"On the other hand, once it happens, the dems win for a generation."   That has been a prediction by a number of liberals on these boards, but I beg to differ.  People with strong pro-abortion opinions (i.e., abortion on demand up to the moment of delivery) already vote democrat and those with strong pro-life opinions (abortion should be illegal under all circumstances) already vote Republican. [In the interest of full disclosure, I am in the latter category.]  The vast majority of voters would allow some abortions but favor restrictions far more stringent than anything allowed under existing law.  If Roe were overturned, the issue would be returned to the state legislatures and the abortion laws would most likely, after considerable debate, reflect the majority positions of the several states, with few, if any, outlawing it entirely.   There would not be a big backlash against the Republican party or its candidates.  Where would such a backlash come from?  It would certainly not come from the majority that voted for Bush in the last election with full knonwledge of his position on the issue.  The more likely scenario would be further radicalization of the feminist/homosexual left (any diminution of the false doctrine of "right to privacy" would implcate both groups).  Conservatives generally benefit from the high energy levels of the leftist fringe.  If the truth were known, I would bet MoveOn.org motivated more conservatives than liberals to vote in the last election.

Roe isn't going to be overturned. There's a 6-3 pro Roe majority now. This nomination may end up being about regulating abortion around the edges though, late term abortion, parental consent, etc. Which would help Dems IMO because it would take those issues off the table - and force the abortion dabate back onto turf more favorable to Dems, IE the basic right to have an abortion.

I am unaware of any organized opposition to the availability of artificial birth control drugs or devices.

 

I was speaking of the efforts to ban things such as "morning-after" drugs and the kind.  There clearly are efforts to ban these.  I just read the other day that Wisconsin, for example, has proposed this:

http://www.usatoday.com/news/nation/2005-06-17-day-after-pill_x.h tm?csp=34

In any case, I do feel that if the republicans still have congress and Roe is overruled, they will pass federal anti-abortion legislation.

 Even if that fails, I do think that the majority of the state legislatures, especially those in the west, south and midwest, will ban abortion, and once the issue is back on the table, I do think that the issue breaks for democrats.

The vast majority of voters would allow some abortions but favor restrictions far more stringent than anything allowed under existing law.

...

If Roe were overturned, the issue would be returned to the state legislatures and the abortion laws would most likely, after considerable debate, reflect the majority positions of the several states, with few, if any, outlawing it entirely.

 

Currently 90% of abortions are performed in the first trimester and more than 99% of abortions are performed in the first 24 weeks of pregnancy.

Before Roe v. Wade, abortion was illegal in most states, except to save the life of the mother.

I don't see how the mainstream position (abortion should be legal but limited, according to you) is closer to the pre-Roe situation than to our current situation.  In fact, we currently have the situation where to strongly advocate for a woman's right to choose is easily spun as "Jesus, it's one thing to have the right to choose, but you want the right to choose abortion the day before the baby is born!  How extremist!"  For an example of this sort of spinning, you can re-read your own post, which of course was written by someone who has the moderate and popular position that abortion should be illegal under all circumstances.

"I was speaking of the efforts to ban things such as 'morning-after' drugs and the kind."   "Morning-after" drugs are not contraceptives, they are abortifacients.    "In any case, I do feel that if the republicans still have congress and Roe is overruled, they will pass federal anti-abortion legislation."   They already have, the partial birth abortion legislation.   I think, however, that if Roe were overturned the pressure on conservatie pro-life politicians would shift from the federal to the state level.

"I don't see how the mainstream position (abortion should be legal but limited, according to you) is closer to the pre-Roe situation than to our current situation."

At present, no state of which I am aware has a statute that prohibits abortion.  After Roe, most states enacted statutes regulating abortion that have been scrutinized under Roe and, in some cases, found "unconstitutional" in one or more respects.  If Roe were overturned, abortion would be legal in every state with some degree of regulation - including some regulation that Roe and its progeny find unacceptable.  As a practical matter, abortion would be available everywhere absent further affirmative legislation.

"In fact, we currently have the situation where to strongly advocate for a woman's right to choose is easily spun as 'Jesus, it's one thing to have the right to choose, but you want the right to choose abortion the day before the baby is born!  How extremist!'"

How else would you characterize NARAL's strident opposition to the partial birth abortion legislation?

"For an example of this sort of spinning, you can re-read your own post, which of course was written by someone who has the moderate and popular position that abortion should be illegal under all circumstances."

I have never said I hold the "moderate and popular position."  I believe abortion is murder and ought to be regaded as such by the law.  Mine is a minority position.  But so is that of NARAL and others that "strongly advocate for a woman's righ to choose" to abort children up to the moment of delivery.

We seem to agree that we can look at the abortion debate and see roughly 3 camps: absolute right to choose, no right to choose, some right to choose.  Let's call these groups pro-choice, pro-life, and mainstream.

Where exactly is most of the debate?  You seem to think that the debate is between the mainstream and the pro-choice crowd, which is extremist.  I am saying that this is the result of the pro-life crowd being totally out of the picture and having no say on law.

The pro-life movement ostensibly has grander goals than cutting the number of abortions by 1%.  And interestingly enough the Republican Party, their party, is in control of a good deal of the country.  Both houses of Congress, plenty of state legislatures.  And yet abortion remains legal.  Why?  Of course, because the Supreme Court took the issue out of the hands of the legislatures, in Roe v. Wade.

Are we really supposed to think that the pro-life movement is outraged by the legal reasoning employed in Roe v. Wade ("Right to privacy") and not by the fact that Roe v. Wade made abortion legal?   And that they'll be happy as long as some legislature votes on it, even if the legal outcome remains essentially the same?  [See http://www.guttmacher.org/statecenter/spibs/spib_RPA.pdf for a review of current restrictions on abortion.]  Are you saying that having a few more restrictions on abortion (no more partial-birth abortions) is all that the pro-life movement wants?

If the pro-life movement is serious, they will push Republican-controlled legislatures to ban abortion entirely.  And if the Republicans are serious about the pro-life movement, they will find ways to achieve that.  And that will cause problems for the Republicans.  But you seem to think that at least one of these entities is not that serious about the issue.

 

OK, does the Republican Party have a pro-life position or not?  If abortion falls to some legislature(s) to decide, will the Republican Party fight for the banning of abortion?  If most Republican voters think that abortion should be banned, but most of the general populaton thinks that it should be not, how will Republican politicians behave?  And what will become law, if Republican politicians form majorities in the legislature?

 

I gather that you think the Republicans, if faced with such a situation, will simply change their position to support legal but limited abortion (flip-flop), and that will be fine with the Party's pro-life base, which will continue to support the Party just as ardently as it does now.  Hey sure; I mean, I can definitely understand people who think all abortion is murder but will rally behind politicans who think that murder should be just a little more regulated.

Last two sentences of earlier reply:

Most foes of abortion understand that the greatest challenge will be to change the culture and that it could take generations to overcome the damage done by the Supreme Court in 1972.  Overturning Roe is merely the first step in a long fight.

"OK, that's all I was trying to say. ... You're probably right about the "lesser of two evils" outcome."

Glad to see that we understand where each is coming from.  I admit to being against all abortion.  However, the demise of Roe v. Wade will not, of itself, get the country where I ultimately wish it to be.  On the other hand, the demise of Roe, of itself, will not be the "catastrophe" for abortion proponents that NARAL et al. insist it would be either.  The S.Ct. majority in Roe had the hubris to think that by creating a "right" to abortion that they would end the debate. Instead, they caused great polarization in the political process and made enemies of a lot of people that ordinarily might have been motivated to seek acceptable political compromise.  That is a problem with a lot of judges - both state and federal.  They have inflated opinons of their own competencies.