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Calling John Roberts's Bluff | The Nation

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John Nichols

John Nichols

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Calling John Roberts's Bluff

John Roberts, the President's nominee to become the seventeenth Chief Justice of the US Supreme Court, says that the 1973 high court ruling that guaranteed a woman's right to choose is "settled as a precedent."

Roberts told the Senate Judiciary Committee hearing on his nomination that the Supreme Court decision that legalized abortion is "entitled to respect under principles of stare decisis," the legal standard that long-established court rulings should not be casually challenged.

When pressed, Roberts suggested that only in extraordinary circumstances--when the precedent has proved to be "unworkable" or "difficult to apply"--should the Court even consider overturning settled law.

Since the Roe v. Wade precedent has survived basically intact through three decades of legal and legislative assaults, and since it has not proved to be unworkable or difficult to apply, Roberts has effectively promised the Senate--under oath--that he will not seek as the Chief Justice to outlaw abortion or other reproductive rights.

There can be no question that Roberts, who every observer agrees has an impressive awareness of the law and of politics, knows that this was the impression that he sought to convey with his comments.

Did Roberts seek to deceive the committee? Certainly, many Americans--and at least some senators--remain skeptical regarding this nominee. And, considering the sorry track record of the presidential Administration that has advanced his nomination, that skepticism ought not be dismissed casually.

But Roberts has clearly indicated a position with regard to Roe v. Wade. And that position is that, no matter what his personal opinions, he would not serve on the nation's highest court as the sort of conservative judicial activist who sets out to overturn established law.

It appears at this point that a number of senators who support a woman's right to choose will vote to confirm Roberts's nomination, which in all likelihood will gain the approval of the full Senate. It also appears, from the comments of these senators, that many of them were impressed with Roberts's performance before the Judiciary Committee--even if they would have preferred that the nominee be more forthcoming in response to questioning from Democratic and Republican senators.

While your correspondent continues to hold to the view that there are more than enough reasons to reject Roberts--beginning with his record on voting rights issues and certainly including his radical pro-business track record--he also recognizes political reality. In recognizing reality, however, it is important to set basic standards.

If and when senators who are supportive of reproductive rights cast their votes for Roberts, they ought make note of the nominee's statements to the committee with regard to this issue. Get it in the record again. And then add to the record a notation that a nominee who intentionally lies to the Senate must necessarily be subject to impeachment and removal from office.

These senators should also make it clear that, if John Roberts turns out to be the judicial activist that some fear, and if that activism takes the form of an attack on what he has described as "settled" law, then they will support a move to impeach the man and remove him from office.

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