Griswold and brown now you have said just right there as we started this hearing that you believe there is a constitutional basis for this protection and for this right and yet when it came to roe versus wade, you would not. Most of us are troubled by this 1985 memo said yesterday you would have an open mind when it came to this issue. Im sorry to report that your memo seeking a job in the Reagan Administration does not evidence and open mind. In evidences a mind that sadly is is closed in some areas. Yesterday when you were asked about one man, one vote. You clarified. It said those were my views then theyre not my views now when senator cole asked you about the the power and authority of elected branches as opposed to others. No, he said i want to clarify thats not my view now and yet when we have tried to press you on this this critical statement that you made in that application. A statement which was made by you that said the constitution does not protect a right to an abortion. Youve been unwilling. To distance yourself and to say that you disagree with that. I think this is critically important. Because as far as i am concerned judge alito we have to rely on the Supreme Court to protect our rights and freedoms, especially our right to privacy and for you to say that your fork griswold you accept the constitutional basis for griswold, but you cant bring yourself to say theres a constitutional basis for the right of a womans privacy when she is deciding making a tragic painful decision about continuing a pregnancy that may risk her health or her life. Im troubled by that. Why why can you say unequivocally that you find constitutional support for griswold unequivocally you find constitutional support for brown but cannot bring yourself to say that you find constitutional support for a womans right to choose. Brown versus board of education as you pointed out is based on the equal protection clause of the 14th amendment and the 14th amendment of course was adopted and ratified after the civil war it talks about equality. It talks about equal protection of the law and the principle that was finally recognized in brown versus board of education after nearly a century of misapplication of the 14th amendment. Is that denying people the opportunity people of a particular race the opportunity to attend schools or for that matter to make use of other public facilities that are open to bowl of a different race denies them equality. Theyre not treated the same way an africanamerican is not treated the same way as a black person when theyre treated that way so theyre denied equality and that is based squarely on the language of the equal protection clause and the principle the the the heart of the principle that was the magnificent principle that emerged from this great struggle that is embodied in equal protection clause griswold concerned the marital right to privacy and when the decision was handed down it was written by Justice Douglas and he based that on his theories of his theory of emanations and penumbras from various constitutional provisions the ninth amendment and the Fourth Amendment and a variety of others, but it has been understood in later cases as based on the due process clause of the 14th amendment which says that no person shall be denied due process shall be denied liberty without due process of law. And thats my understanding of it and the issue that was involved in griswold the the possession of contraceptives by married people is not an issue that is likely to come before the courts again. Its not likely to come before the third circuit. Its not likely to come before the Supreme Court, so i feel an ability to comment a greater ability to comment on that and i do on an issue that is involved in litigation. What i have said about row, is that if it were if the issue were to come before me if im confirmed and im on the Supreme Court and the issue comes up the first question the first step in the analysis for me would be the issue of sorry decisis, and that would be very important the things that i said in the 1985 memo where a true expression of my views at the time from Vantage Point as an attorney in the solicitor generals office, but that was 20 years ago and a great deal has happened in the case law since then thornburg was decided and then webster and then casey and a number of other decisions. So the story decisis analysis would have to take account of that entire line of case law and then if i got beyond that, i would approach the question and of course in casey that was the beginning and the ending point of the analysis and the joint opinion if i were to get beyond that, i would approach that question the way i approach every legal issue that i approach as a judge and that is to approach it with an open mind and to go through the whole judicial process which is designed and i believe strongly in it to achieve good results to achieve good Decision Making well, and this is what troubles me. That you do not see row as a natural extension of griswold that you do not see the privacy rights. Griswold extended by the decision in row that you decided to create categories of cases that are have been decided by the court that you will concede have constitutional protection, but you have left in question the future of roe versus wade yesterdays senator specter asked you as he asked john roberts before you a series of questions about whether or not you accept the concept that this is somehow a precedent that we can rely on that is embedded in our experience that if it were changed it would call into question the legitimacy of the court and time and time again, he brought you to the edge. Hoping that you would agree and rarely if ever did you acknowledge that you would agree you made in the most general statement that you believed reliance was part of story decisis, but let me just ask you this john roberts. Said that roe versus wade is the settled law of the land. You believe it is the settled law of the land. Roe vs weight is an important precedent of the Supreme Court it was decided in 1973. So its been on the books for a long time. It has been challenged on a number of occasions and i discussed those yesterday and it is my and the Supreme Court has reaffirmed the decision sometimes on the merits sometimes in casey based on starry decisis, and i think that when a decision is challenged and it is reaffirmed that strengthens its value as sorry decisis for at least two reasons first of all, the more often a decision is reaffirmed the more people tend to rely on it. And secondly, i think sorry decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and our scholars and our conscientious and when they examine a question and they reach a conclusion, i think thats entitled to considerable respect. And of course the more times that happens the more respect the decision is is entitled to and thats my thats my view of that. So it isnt its a very important precedent. This is a subtle law of the land. Yeah, it is a present if settled means that it is it cant be reexamined then thats one thing if settled means that it is a it is a precedent that is entitled to respect to sorry decisis and all the factors that ive mentioned coming to play including the the reaffirmation and all of that then it is a it is a precedent that is protected entitled to respect under the doctrine of story decisis in that way. How do you see it . Ive explained senators best i can how i see it. It is a precedent that is now been on the books for several decades. It has been challenged. It has been reaffirmed but it is an issue that is involved in litigation now at all levels there is an Abortion Case before the Supreme Court this term there are Abortion Cases in the lower courts. Ive sat on three of them on the court of appeals for the third circuit. Im sure there are others in other courts of appeals or working their way toward the courts of appeals right now. So its a its a an issue that is involved in a considerable amount of litigation that is going on. I would say judge alito that is a painful issue for most of us. It is a difficult issue for most of us. The active abortion itself is many times hard decision a sad decision tragic decision. I believe that for 30 years. We have tried to strike a balance in this country to say it is a legal procedure, but it should be discouraged. It should be legal but rare and try to find ways to reduce the incidence of abortion. But as i listened to the way that youve answered this question this morning and yesterday and the fact that you have refused to refute that that statement in the 1985 job application. Im concerned. Im concerned that many people will leave this hearing with a question as to whether or not you could be that citing vote that would eliminate the legality of abortion. That was associate Supreme Court Justice Samuel alito in 2006 appointed by president george w. Bush Justice Alito is the author of the leaked opinion draft, which seeks to overturn the roby wade decision. Retiring Justice Stephen breyer was nominated by president clinton in 1994 and confirmed that same year. He too was asked about the roe v wade case and how he would rule if a similar case came before the high court. Basically, i think that word liberty. In the 14th amendment has been recognized. By most almost all modern judges on the Supreme Court and is pretty widely that that word liberty. Includes a number of basic important things that are not those only listed in the first eight amendments to the constitution. In the ninth amendment helps make that very clear. Because it says dont use that fact of the first eight. Reason to the conclusion that there are no others. So it isnt surprising to me. That there is widespread recognition. That that word liberty does encompass something . On the order of privacy people have described. Those basic rights not mentioned. In words like concept of ordered liberty that which the traditions of our people realize or recognize as fundamental. And in looking to try to decide what is the content of that . I think judges have started with text. And after all in amendments to the constitution, there are words that suggest that in different contexts privacy was important. They go back to the history. They look at what the framers intended. They look at traditions over time. They look at how those traditions have worked out as history has changed and theyre careful. Theyre careful. Because eventually 20 or 30 years from now other people well look back at the interpretations that this generation writes if their judges. And theyll say were they right to say that that ought permanently to have been the law . If the answer to that question is yes. Then the judges of today were right in finding that that was a basic value that the framers of the constitution intended to have enshrined. Thats a kind of test of objectivity. But the source i think is the 14th amendment and that word liberty. Mmm oh the notion of liberty arises obviously in a number of different areas, and i think theres been some examination here on this committee, but i just would like for my own edification to really get a response from you. And this goes to the issue of womens right to choose. Just Justice Ginsburg a year ago. Said that she believed that the that a womans right was part of the essential dignity of the individual. And of course the notion of privacy is also been referred to as the right to be left alone. And i guess my specific question is whether you would believe that a womans right to be left alone. Means the right to be left alone with regard to as an intimate decision as whether or not to be pregnant. That is the determination of roe versus wade. Roe versus wade is the law of this country at least for more than 20 years . That there is some kind of basic right of the nature that you describe. Recently the Supreme Court has reaffirmed that right in casey versus planned parenthood and so in my opinion that is settled law. And that was retiring Justice Stephen breyer at his 1994 confirmation hearing discussing the legalities of abortion. Amy Coney Barrett is the newest justice currently on the court. She was nominated by President Trump in 2020 and confirmed on a close vote a former law professor at notre dame her religion and past writings were scrutinized in her nomination hearing here. She is discussing the court and abortion. I on that question, i you know, im going to invoke justice kagans description, which i think is perfectly put when she was in her confirmation hearing. She said that she was not going to grade precedent or give it a thumbs up or a thumbs down and i think in an area where precedent continues to be pressed and litigated as is true of casey it would be particularly it actually be wrong and a violation of the canons for me to do that as a sitting judge. So if if i express a view on a precedent one way or another whether i say, i love it or i hate it it signals to litigants that i might tilt one or another and appending case. So on something that is really a major cause with major effect on over half of the population of this country who are women after all. Its its distressing not to get a straight answer. So let me try again. Do you agree with Justice Scalias view that roe was wrongly decided. Senator i completely understand why you are asking the question. But again, i cant precommit or say yes. Im going in with some agenda because im not i dont have any agenda. I have no agenda to try to overrule casey. I have an agenda to stick to the rule of law and decide cases as they come. Well what im as a person, i dont know if youll answer this one either. Do you agree with Justice Scalias view that roe can and should be overturned by the Supreme Court. Well, i think my answer is the same because you know, thats a case thats litigated it. Could you know, its contours could come up again. In fact do come up. You know, they came up last term before the court. So i think you know what the caseys standard is and thats just its a contentious issue, which is i know one reason why it would be comforting to you to have an answer, but i cant express views on cases or precommit to approaching a case any particular way. Well, that makes it difficult for me. And i think for other women also on this committee because this is a very important case and it affects a lot of people millions and millions of women and you could be a very important vote. And i had hoped you would say as a person youve got a lovely family. You understand all the implications of family life. You should be very proud of that. Im proud of you for that. But my position is a little different youre going on the biggest court of this land with a problem out there that all women see one way or another in their life and not all but it certainly married women do and others too. And so the question comes what happens and will this justice support a law that has substantial precedent now . Would you commit yourself on whether you would or would not . Senator what i will commit is that i will obey all the rules of story decisis that if a question comes up before me about whether casey or any other case should be overruled that i will follow the law of star decisis applying it as the court has articulated it applying all the factors reliance workability being undermined by later facts and law just all the standard factors and i promise to do that for any issue that comes up abortion or anything else. Ill follow the law. Youre watching American History tv on cspan as we look back at what the current justices said about roby way during their confirmation hearings Justice Neil Gorsuch was asked about the 1973 decision as well. Senator again, i would tell you that roe versus wade decided in 1973. The president United States Supreme Court it has been reaffirmed. The reliance interest considerations are important there. And all the other factors that go into analyzing precedent. To be considered it is a precedent of the United States Supreme Court. Is reaffirmed in casey in 1992. In several other cases so a good judge will consider it as precedent of the United States Supreme Court worthy as treatment of precedent like any other what about griswold which was decided a few years before row the case where the court found constitutional right to privacy . Can you tell me your views on griswold . Center its a precedent. Its now. 50 years old griswold involved the right of married couples to use contraceptive devices in the privacy of their own home. And its 50 years old. The reliance interests are obvious. Been repeatedly reaffirmed all very important factors again in analyzing precedent well, i think im going to stop questioning but i kind of sum up what you and i just talked about in regard to precedent. So everybody understands the principles that are stake here. There are two reasons why you cant give your opinion on these cases. One i believe is independence. And the other one is fairness to future litigants. Is that the way you see it . It is senator if i were to start telling you which are my favorite precedents or which are my least favorite precedent survive you president and that fashion. I would be tipping my hand and suggesting to lit against that ive already made up my mind about their cases. Thats not a fair judge. I didnt want that kind of judge when i was a lawyer. And i dont want to be that kind of judge now and i made a vow to myself i wouldnt be. Thats the fairness problem and then the independence problem. If it looks like im giving hints or previews or intimations about how i might rule. I think thats the beginning of the end. Of the independent judiciary if judges have to make effectively campaign promises. For confirmation and respectfully senator. I havent done that in this process, and im not about to start. Thank you. Ill yield back eight seconds senator. Thank you very much, mr. Chair. Welcome judge and good morning. Good morning senator again, since were on row i wasnt going to begin with this, but i well recall the time we spend in my office and we talked about precedent and in my opening remarks, i indicated that if anything had super president rowe did in terms of the numbers and i have put that in the record. Heres why it becomes of concern the president said that he would appoint someone who would overturn roe you pointed out to me that. You viewed precedent. In a serious way in that it added stability to the law. Could you elaborate on the point that you made in my office on that . Id be delighted to senator. Part of the value of precedent. It has lots of value. It has value in and of itself because its our history. And our history has value intrinsically. But it also has an instrumental value in this sense. It adds to the determinacy of law. We have lots of tools that allow us. To narrow the realm of admissible dispute between parties. So that we can people can anticipate and organize their affairs. Part of the reason why the rule of law in this country works so well. We have statutes we have rules. We have a factfinding process and a judicial system. Thats the envy of the world. Impression is a key part of that because as a chairman pointed out when he he quoted a piece of mind. Once the case is settled that adds to the determinacy of the law. What became what was once a hotly contested issue . Is no longer a hotly contested issue. We move forward and instead of the value of that. Is the United States Supreme Court takes Something Like 70 or 80 cases a year. That is a tiny fraction of all the disputes in our federal legal system. Right, right. My law clerks tell me Something Like point and theyre unanimous in those cases which have divided circuit judges. Thats why Supreme Court largely takes the case because its divided us. Its one of the rare cases where we disagree. Theyre unanimous 40 of the time one other question. Sure. Do you view row as having super precedent . Was senator i i super president is a numbers forty four. It has been reaffirmed many times just this neil gorsuch is one of three justices nominated by President Trump and confirmed to serve on the Supreme Court. He began his tenure in 2017. In light of the leaked opinion on overturning the 1973 roby wade decision American History tv is looking back at what the current members of the high court had to say about abortion during their confirmation hearings. Just this elena kagan began serving on the court in 2010 the former Harvard Law School dean was nominated by president obama. She too was asked about the issue at her confirmation hearing. Um, as i law after casey. Its that after viability the state can regulate as it pleases. Except for situations where the womans life or Health Interests are at issue. Before viability the question is whether there is an undue burden on the right womans ability to have an abortion. Is it fair for the court to consider scientific changes and when a fetus becomes viable as medical science evolves . Senator graham, i do think that in every area that it is fair to consider scientific changes. Weve ive talked in the past about how different forms of Technology Influence the evolution of the courts Fourth Amendment jurisprudence. Im glad to hear you say that because just as it would have been wrong to not consider the changes of how society had evolved versus segregation of Young Children based on race i hope the court would consider. The modern concept of viability in the 21st century and whatever protection you could give the unborn would be much appreciated on my part by considering science. Not your personal feelings because i think its appropriate for the court to do so. I dont think we need to do this, but let me just go over your 2009 confirmation hearings when you were asked about the partial birth abortion decision. You repeatedly stated that you would respect gonzalez versus car art in which a court rejected a facial challenge to the federal partial birth abortion act based on star decisis. Thats what you said in the last hearing. I i assumed that your position today. Absolutely, senator carhart that the gonzalez case is is settled law entitled to all the president of settled law going forward. I just really want to make a personal comment as i did on my Opening Statement many of us believe roe v. Wade is a matter of privacy and a womans right of choice and is not really taking sides on abortion not whether you favor or oppose abortions whether you favor a womans right of choice and the right of privacy and what is the appropriate role for the government to play elena kagan has served on the Supreme Court since 2010. The next justice will be listening to is Brett Kavanaugh his contentious 2018 nomination hearings included questions about roe v wade. Heres a portion. Well as a general proposition, i understand. The importance of the precedent set forth in roe v wade, so roe v wade held of course, and its reaffirmed in planned parenthood versus casey. That a woman has a constitutional right to obtain an abortion before viability. Subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden. On the womans right to obtain an abortion and one of the reasons for that holding as explained by the court in row and also in planned parenthood versus casey more fully is along the lines of what you said center feinstein about the quote from Justice Oconnor. So thats one of the rationales that undergirds roe v wade. Its one of the rationales that undergirds planned parenthood versus casey. Let me give you another one rationale. In the 1950s and 60s the two decades before row. Deaths from a legal abortions in this country ran between 200,000 and 1. 2 million. Thats according to the good mocker institute. So a lot of women in that period so the question comes and you have said today not today, but in its been reported that you have said that ro is now settled law. First question i have of you is what do you mean by settled law . I tried to ask earlier. Do you believe it is correct law have your views on whether row is settled precedent . Or could be overturned. And it has your views changed since you were in the Bush White House . Senator i said that its settled as a precedent of the Supreme Court entitled to respect under principles of story decisis and one of the important things to keep in mind about roe v wade. Is that it has been reaffirmed many times over the past 45 years as you know. And most prominently most importantly reaffirmed in planned parenthood versus casey in 1992. And as you well recall center, i know when that case came up the Supreme Court didnt just reaffirm it. In passing the court specifically went through all the factors of story decisis and considering whether to overrule it. And then joint opinion of Justice Kennedy Justice Oconnor and justice suitor at great length went through that those factors. That was the question presented in the case. Could i interrupt you to say since you mentioned story decisis and i sat on nine of these hearings and when the subject comes up the person says i will follow star he decisis and they get confirmed and then course they dont so i think knowing going into it. How you make a judgment on these issues is really important to our vote as whether to support you or not. Because i dont want to go back to those death tolls in this country. And i truly believe that women should be able to control their own reproductive systems within obviously some concern for a viable fetus. And i understand your point of view on that center and i understand. How passionate and how deeply people feel about this issue . I understand the importance of the issue. I understand. The importance that people attach to the roe v wade decision to the planned parenthood versus casey decision i dont live in a bubble. I understand. I live in the real world. I understand. The importance of the issue well, and that just passed me a note. Let me read it to you because i think its a good have your views about whether row is settled precedent changed since you were in the Bush White House. My yes or no. Well, ill tell you what my views. Im not sure what its referring to about Bush White House, but i will tell you what my view right now is. Which is as important precedent in the Supreme Court thats been reaffirmed many times, but then plan and this is the point. I want to make that i think is important. Planned parenthood versus casey reaffirmed row and did so by considering the story decisis factors. So casey now becomes a precedent on precedent. Its not as if its just a runofthemill case that was decided and never been reconsidered. But casey specifically reconsidered it applied the story decisive factors and decided to reaffirm it. That makes casey a precedent on precedent another example of that is you might say other cases like that miranda so mirandas reaffirmed a lot, but then in the dickerson case in 2000 chief justice rank was writes the opinion. Considering the story decisive factors and reaffirming miranda, even though chief justice rang was by the way had been a ferven critic of miranda throughout his career. He decided that it had been settled too long had been president too long and he reaffirmed it so president on prep. Im sorry to interrupt. Im sorry to interrupt, but i want to switch subjects in one last question. What would you say your position today . Is on a womans right to choose. As a judge as a judge as a judge, it is an important precedent of the Supreme Court by it. I mean roe v wade and planned parenthood versus casey. Then reaffirm many times. Casey is precedent on precedent. Which itself is an important factor to remember . And i understand the significance of the issue the jurisprudential issue and i understand the significance as best i can. I always try and i do hear of the real world effects of that decision as i tried to do of all the decisions of my court and of the Supreme Court. And youre watching American History tv on cspan as we look back to see what the current Supreme Court justices had to say about abortion and the law during their confirmation hearings chief justice. John roberts has served on the court since 2005 the George W Bush nominee had this to say when asked about the 1973 roby wade decision. Well senator the importance of settled expectations in the application of starry decisis is a very important consideration that was emphasized in the casey opinion, but also in other opinions outside that area of the law the principles of starry decisis. Look at a number of factors settled expectations one of them and as you mentioned whether or not particular precedents have proven to be unworkable is another consideration on the other side whether the doctrinal basis of a decision have been eroded by subsequent developments, for example, if you have a case in which theyre three precedents that lead and support that result and in the intervening period two of them have been overruled that may be a basis for reconsidering the the prior president. Theres no theres no doc. Doctrinal basis erosion and grow is there. Well, right. I feel the need to stay away from a discussion of particular cases. Im happy to discuss the principles of starry decisis and the court has developed a series of precedence on precedent if you will they have a number of cases talking about how this principle should be applied. And as you emphasized in casey they focused on settled expectations. They also looked at the workability and the erosion of precedence the erosion of precedent. I think figured were prominently in the in the courts discussion in the lawrence case, for example, but it is one of the factors that is looked at on the other side of the the balance. Well, do you see any erosion of precedent as to row . Well again, i think i should stay away from discussions of particular issues that are likely to come before the court again and in the area of abortion there are cases on the courts docket. Of course, it is an issue that does come before the court. So while im happy to talk about starry decisis and the importance of precedent. I dont think i should get into the application of those principles in a particular area. Well judge roberts. I dont know that were dealing with any specific issue. If when you mention and you brought the term up erosion of precedent whether you see that as a factor in the application of storage decisis or expectations for example on the citation i quoted from casey versus planned parenthood. Well in in the particular case of row, obviously you had the casey decision in 90 92 or 93 92 92 in which they went through the various factors and starry decisis and reaffirmed the the Central Holding in row while revisiting the trimester framework and the substituting the undue burden analysis for the strict scrutiny. So as of 92, you had a reaffirmation of the Central Holding in row. Thats that decision that application of the principles of starry decisis is of course itself a precedent that would be entitled to respect under those principles. The joint opinion then go off so on after the statement to Sexual Activity to come to the core issue about women being able to plan their lives quote the joint opinion says the ability of women to participate equally in the economic and social life of the nation has been facilitated. By their ability to control their reproductive lives. Do you agree with that statement judge roberts . Well. Yes, senator as a general proposition, but i do feel compelled to point out that i should not based on the precedent of prior nominees agree or disagree with particular decisions and a reluctant to do that. Thats one of the areas where i think the prior nominees of drawn the line when it comes to do you agree with this case or do you agree with that case . And thats thats something that im going to have to draw the line in the same. Im not when i ask you whether youre gonna vote to overall or sustain it, but were talking here about the jurisprudence of the court and their reasoning let me come to another. Key phase of casey where the joint opinion says a quote terrible price would be paid for overruling role. It would seriously weaken. The courts capacity exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. Now this moves. This moves away from from the specific holding and goes to a much broader jurisprudential. A point really . Raising the issue of whether there would be a recognition of the Courts Authority and in a similar line the court said this that to overrule row would be quota surrender to political pressure. And added quote to overrule under fire with subvert the courts legitimacy close quote. So in the in these statements on on kc, youre really going beyond the whole thing. Youre going to the legitimacy and authority of the court. Do you agree with that . Well i do think the considerations about the courts legitimacy are critically important in other cases. Im thinking of, you know pain versus tennessee, for example, the court has focused on extensive disagreement as a grounds in favor of reconsideration in casey the court looked at the disagreement as factor in favor of reaffirming the decision, so its a factor that its a plane different ways in different precedence of the court. I do think that it is a jolt to the legal system when you overrule a precedent precedent plays an Important Role in promoting stability and even handedness it is not enough and the court is emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided that really doesnt answer the question. It just poses the question and you do look at these other factors. Like settled expectations like the legitimacy of the court like whether a particular precedent is workable or not whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of starry decisis a joel to the legal system a movement against ability. One of the roberts doctrines if a if a overruling of a prior precedent. Is a jolt to the legal system. It is inconsistent with principles of stability one. Go ahead. I was just going to say the principles of starry decisis recognize that there are situations when thats a price that has to be paid obviously brown versus board of education is leading example overruling plessy versus ferguson the west coast hotel case over ruling the lochner era decisions those those were to a certain extent jolts to the legal system and the arguments against them had a lot to do with stability and predictability, but the other arguments that intervening precedence had eroded the authority of those cases that those precedents that they were that were overruled had proved unworkable carrying the day in those cases. One final citation from the joint opinion in row quote after nearly 20 years of litigation in rose wake we are satisfied that the immediate question is not the soundness of rose resolution of the issue. But the president ial force that must be accorded. To its holding. Do you think the court the joint opinion is correct . An elevating precedential force even above the specific holding of the case. That is the general approach when youre considering starry decisis. Its the the notion that its not enough that you might think that the precedent is flawed that there are other considerations that enter into the calculus that have to be taken into account the values of respect for precedent even handedness predictability stability the considerations on the other side whether i precedent you think maybe flawed is workable or not workable whether its been eroded so to the extent that the statement is making the basic point that its not enough that you might think the precedent is flawed to justify revisiting it i do agree with that. And that was a portion of what chief Justice Roberts had to say about abortion and the law during his 2005 confirmation hearing next up president obamas 2009 nominees sonia sotomayor. Heres some of what she had to say about the issue. The courts decision in planned parenthood versus casey reaffirmed the core holding of row. That is the precedent of the court and settled in terms of the holding of the court. Do you agree with justices of suitor oconnor and kennedy in their opinion in casey which reaffirmed the core holding in rome . As i said, i casey reaffirmed the holding in row that is the Supreme Courts. Settled interpretation of what the Court Holding is and its reaffirmance of it. All right. So let me ask you in a difficult area of the law a question the Supreme Court has decided on more than seven occasions. That the law cannot put a Womans Health at risk it said it in row in 73 in danforth and 76 in planned parenthood in 83 in thornburg in 86 in casey in 92 in carhart in 2000 and in iota in 2006 with both justices roberts and alito on the court, however, this rule seems to have changed because in 2007 in carhart 2 the Court Essentially remove this basic constitutional right from women. Now heres my question. When there are multiple precedents and a question arises. Are all the previous decisions discarded or should the court reexamine all the cases on point . It somewhat difficult to answer that question because before the court in any one case, this is particular factual situation. And so how the courts precedence apply to that. Unique factual situation because often what comes before the port is something thats different than its prior decision not always but often. In the carhartt case the court looked to its precedence and as i understood that case. It was deciding a different question, which was whether there were other means safer means and equally effective means for a woman to exercise her, right . Then the procedure at issue in that case. That was and i dont believe a rejection of its prior precedence. Its prior precedence are still the precedence of the court. The health and welfare of a woman must be power must be a compelling consideration. So you believe that the health of the woman still exists. It is as a partner. You mentioned many cases. It has been a part of the courts jurisprudence. And a part of its precedence those precedents must be given deference in any situation that arises before the court. And that was Justice Sonia sotomayor responding to questions about roe v wade during her 2009 confirmation hearing in the senate a reminder that all confirmation hearings in their entirety are available to watch online at cspan. Org. Clarence thomas is the longest serving justice on the court today nominated by president george h. W Bush Justice Thomas began serving in 1991 his nomination process of course was one of the most contentious and closely followed in history the issue of abortion and the law came up. Heres justice thomas. And i think we all feel strongly in this country about the our privacy i do. I believe the constitution protects the right to privacy. And i have no reason or agenda to prejudge the issue. Or that predisposed to rule one where the other on the issue of abortion which is a difficult issue. Im not asking you to prejudge it. Just as you can respond. And i will get into some of the questions to which you responded yesterday both from senators thurman catch and biden about matters. That might come before the court. Certainly can express an opinion as to whether or not you believe that a woman. Has a right to choose the terminator pregnancy without indicating how you expect to vote in any particular case and im asking you to do that. Senator i think that to do that what seriously compromise my ability to sit on a case of that importance and that involving that important issue. That is pursue. Judge thomas in 1990. I shared a committee hearing. On the freedom of choice act where we heard from women who were named by back alley abortionists . Prior to the road decision only wealthy women could be sure of having access to safe abortions. Poor middle class women forced to unsafe back alleys if they needed an abortion. It was a very heartrending hearing. Frankly, im terrified that if we turn the clock back on legal abortion services. Women will once again be forced to resort to brutal and illegal abortions. Kinds of abortions where coat hangers substitute for surgical instruments. The consequences of rose demise are so horrifying to me. In a millions of american women and men i want to ask you once again appealing to your sense of compassion. The weather or not you believe the constitution protects a womans right . To abortion senator the prospect and i guess is a kid we heard. The hushed whispers about illegal abortions and individuals performing them in less than safe environments. But they were whispers. It would of course. If a woman is subjected to the agony of an environment like that on a personal level. Certainly. I am very very pained by that and again any of us would be i wouldnt want to see people subjected to torture that nature. But i think its important to me though on the issue that the question that you asked me. As hard as difficult as it is for me to anticipate or to want to see that kind of illegal activity. I think it would it would undermine my ability. Sick on an impartial way on an important case like that. I have some difficulty with that judge thomas and im frank to tell you. Because yesterday you responded when senator biden asked you if you supported the right to privacy validated against in more be the city of east cleveland. By a green at the courts rulings supported the notion of family. As one of the most private relationships we have in our country. That was one matter that might come before the court. You also responded when senator thurman asked you whether following the courts ruling and paying v, tennessee. Families victimized by violence should be allowed to participate in criminal cases. You went on and respond by indicating that the court had recently considered that matter. And you express concern that such participation could undermine the validity of the process. You also responded to senator thurmans questions about the validity of placing limits on appeals. In Death Penalty cases the fairness of the sentencing guidance, which was another one of his questions. And the good faith exception to the exclusionary rule, which was another one of his questions. And finally he responded when senator hatchessed whether you might rely on substantive due process arguments. To strike down social problems programs such as osha food safety laws child care legislation and the light by telling him that quote the court determined correctly that it was the role of the congress to make. Complex decisions about health and safety and work standards and the quote. Now all of those issues could come before the court again just as the roe v wade matter might come before the court again. So my question about whether the constitution protects a womans right to choose. Is frankly not one bit different. From the types of questions that you willingly answered yesterday from other members of this committee. An tts a look at whathe current nine justice is on t Supreme Court had to say about abortion and the law a reminder that all Supreme Court nomination hearings in their entire are available to
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