Transcripts For CSPAN3 Supreme Court Justices On Roe V. Wade

Our constitution, protected constitutional right. And yet when senator schumer asked repeatedly, do you find that roe versus wade established and recognized a constitutional protection for a woman to make this most private decision you, wouldnt answer. You wouldnt give a direct answer. On to Supreme Court cases, griswold and brown, now, you have said, just right as we started this hearing, that you believe that we have a constitutional basis for this protection and this right. And yet when it came to roe v. Wade, you did not. Most of us are troubled by the 1985 memo. You said yesterday you would have an open mind when you give them to this issue but im sorry general point that your memo is taking a job in the Reagan Administration is not evidence of an open mind. It evidence is a mind that sadly is closed in some areas. Yesterday when you were asked about one man one vote, you clarified it and said, those were my fears and, they are not my face now. When senator cole asked you about the the power and authority of elected branches as opposed to others, no, said i, want to clarify that, thats not what you know. And yet, when we have tried to pressure you on this critical statement that you made on this application, statement that 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 im 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 youre for griswold, you accept a constitutional basis for griswald, but you cant bring yourself to say there is 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 unconstitutional 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 14th amendment, of course, will was adopted and ratified after the civil war and 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 people of a different race denies them equality. Theyre not treated the same way. An African American is not treated the same way as a black person when theyre treated that way. So they are denied equality. And that is based squarely on the language of the equal protection clause, and the principle, the hard, the principle that was, the magnificent principle that emerged from this great struggle that is embodied in the 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 theory of emanations and penumbras from various constitutional provisions, the ninth amendment and the Fourth Amendment, and a variety of authors. 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, shallbe denied liberty without proof due process of law and. And thats my understanding of it. And the issue that was involved in griswold, 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 than i do on an issue that is involved in litigation. Now, what i have said about roe is that if it was, if the issue were to come before me if im confirmed, and im on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important. The things that i said in the 1985 memo were a true expression of my views at the time from my 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. Thornburgh was decided and then webster, and then casey, and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law. And when if i copy on, that i would approach the question and of course in casey that was the beginning at the ending point of the analysis and the joint opinion. If i were to get beyond that i would approach that question in 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 decisionmaking. This is what troubles me. That you do not see the natural decision of griswold, that you do not see the privacy rights of griswold extended by the decision in a row. That you have 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 v. Wade. Yesterday, senator spector asked you, as he asked john roberts before, 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 to a 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 the most general statement that he believed reliance was part of stare decisis. But let me just ask you this again, john roberts said that roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land . Roe v. Wade 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 kc, based on stare decisis. I think, that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons. First of all, more often a decision is reaffirmed, the more people tend to rely on it. Second, i think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath, and are scholars and are conscientious. And when they examined a question and they reach a conclusion, i think that is entitled to considerable respect. Of course, the more times that happens more respect the decision is entitled to and that is my view of that. So, it is a very important precedent is it the settled law of the land . It is a precedent. If settled means that it cant be reexamined, then that is one thing. If settled means that it is a precedent that is entitled to respect as stare decisis and all of the factors that i have mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected and entitled to respect under the doctrine of stare decisis in that way. How do you see it . I have explained, senator, best i can how i see it. It is a precedent that has now been on the books for several decades, it has been challenged and 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 and ive sat on three of them at the court of appeals for the third circuit. Im sure there are others in other courts of appeals or working their way toward the court of appeals right now. So, its 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, a hard decision, a sad decision, a 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 trying to find ways to reduce the incidence of abortion. But, as i listen to the way that youve answered this question this morning and yesterday and the fact that you have refused to refute 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 the deciding 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 roe v. 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 its pretty widely accepted that that word, liberty, includes a number of basic, important things that are not does only listed in the first eight amendments to the constitution. Into the ninth amendment helps make that very clear. Because as dont use that fact of the first eight to reason to the conclusion that there are no others. So itll be 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 all recognize as fundamental. And, it 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, that look at how those traditions have worked out as history has changed, and they are careful, theyre careful. Because eventually, 20 or 30 years from now, other people will look back at the interpretations that this generation writes, if theyre 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 been trying. Thats a kind of test of objectivity. But this horse, i think, is the 14th amendment and that word, liberty. The notion of liberty arises, obviously, in a number of different areas and i think theres been some examination here on this committee. But id just like, for my own edification, to really get a specific response from you. This goes to the issue of a womans right to choose. Justice ginsburg, a year ago, said that she believed that a womans right was part of the essential dignity of the individual. And, of course, the notion of privacy has also been referred to as the right to be left alone. 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 an intimate decision as to whether or not to be pregnant. That is the determination of roe v. Wade. Roe v. Wade is the law of this country, at least for more than 20 years. There that there is some kind of basic right of the nature that you described. Recently, the Supreme Court has reaffirmed that right in casey versus planned parenthood. 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 think on that question, you know, im going to invoke justice kagans description, which is i think, 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 thumbs down. And i think in an area where president continues to be pressed and litigated, and it is true of casey, it would be particularly, would actually be wrong and a violation of the canons for me to do that as a sitting judge. So if i express a view on the president one way or another where there i say i love it or hate it, it signals to litigants that i might tilt one way or another in a pending 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 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 you will 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. And in fact do come up, and they came up last term before the court. So i think, you know, what the casey standard is and, not just its a contentious issue, which is one reason why it would be comforting too to have an answer. But i cant express views or 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 id 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 in one way or another in their life. Not all, but certainly married women to, 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 stare 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 stare decisis, applying it as the court has articulating it, applying all the factors, our reliance, work ability, being undermined by later facts in law, which is all the standard factors. And i promised to do that for any issue that comes up, abortion or anything else. I will follow the law. You are watching American History tv on cspan. As we look back at what the current justices said about roe v. Wade during their confirmation hearings. Justice neil gorsuch was asked about the 1973 decision as well. [inaudible] considerations are important there. And all the other factors that go into analyzing president have to be considered. Hes a president of the United States Supreme Court, its reaffirmed in kc in 1992. And in several other cases. So a good judge will consider as president of the United States Supreme Court with the as treatment of president like any other. What about griswold, which was decided a few years before roe. The case where the court found constitutional right to privacy. Can you tell me your views on griswold . Senator, its a president thats now 50 years old . Griswold involved a right of married couples to use contraceptive devices in the privacy of their own home. And his 50 years old. There are light interests are obvious. Its been repeatedly reaffirmed, all very important factors, again, in analyzing president. Okay. Well, i think im going to stop questioning, but i kind of sum up what you and i just talked about in regards to precedent. So everybody understands the principles that are at stake here. There are two reasons why you cant give your opinion on these cases. One, i believe, is independents, and the other one is fairness to future litigants. That the way you see it . Is this, senator. If i were to start telling you which my favorite president s or which are my least favorite president s, or if i view president in that fashion, i would be tipping my hand and suggesting to litigants that ive already made up my mind about the 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 no. 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.