Transcripts For CSPAN3 Lectures In History Civil War As A Co

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. Cha