Transcripts For CSPAN3 Supreme Court Nominees On Roe V. Wade

Constitution are going to consider each of these problems. In general they illustrate how much the civil war was a constitutional crisis. It created a crisis both on what the constitution was, whether its required all of these states to be in it, whether it was illegal to secede and also had to conduct a war against your own people. When they are trying to rebel. How do you approach these constitutional problems when the constitution does not give you easy answers . It does not provide the answers that you need in order to appropriately fight the war . This is what the Lincoln Administration and congress are going to deal with over the course of the war and its going to have really important ramifications Going Forward and that is what we are going to talk about on thursday. If you are enjoying American History tv, sign up for a newsletter using the qr code on the screen to receive the weekly schedule of upcoming programs like lectures in history, the presidency and more. Sign up for the American History newsletter today and be sure to watch American History tv every saturday or anytime online at cspan. Org history. But the 1973 roe versus wade case and abortion being widely debated in the nation today, American History tv is looking back to see what the nine justices who are currently on the Supreme Court had to say about roe v. Wade in their confirmation hearings. We begin with a Justice Samuel alito, the author of the new, leaked draft opinion, which seeks to overturn the roe case. His nomination hearing was heard in january 2006. You conceded the fact that we have free speech because its explicit in 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 there is a constitutional basis for this protection and this right. And yet when it came to roe v. Wade, you would 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 seeking 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 equal protection clause of the 14th amendment. 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 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 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, 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 then 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 Lincoln Administration<\/a> and congress are going to deal with over the course of the war and its going to have really important ramifications Going Forward<\/a> and that is what we are going to talk about on thursday. If you are enjoying American History<\/a> tv, sign up for a newsletter using the qr code on the screen to receive the weekly schedule of upcoming programs like lectures in history, the presidency and more. Sign up for the American History<\/a> newsletter today and be sure to watch American History<\/a> tv every saturday or anytime online at cspan. Org history. But the 1973 roe versus wade case and abortion being widely debated in the nation today, American History<\/a> tv is looking back to see what the nine justices who are currently on the Supreme Court<\/a> had to say about roe v. Wade in their confirmation hearings. We begin with a Justice Samuel<\/a> alito, the author of the new, leaked draft opinion, which seeks to overturn the roe case. His nomination hearing was heard in january 2006. You conceded the fact that we have free speech because its explicit in 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<\/a> cases, griswold and brown, now, you have said, just right as we started this hearing, that you believe that there is a constitutional basis for this protection and this right. And yet when it came to roe v. Wade, you would 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 seeking a job in the Reagan Administration<\/a> 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<\/a> 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 equal protection clause of the 14th amendment. 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<\/a> 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<\/a>, 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 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<\/a>. 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, if the issue were to come before me if im confirmed, and im on the Supreme Court<\/a> 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<\/a> as an attorney in the Solicitor Generals Office<\/a> 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 then 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<\/a>. 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<\/a> 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<\/a> before the Supreme Court<\/a> this term, there are Abortion Case<\/a>s 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<\/a> Justice Samuel<\/a> alito in 2006. Appointed by president george w. Bush, Justice Alito<\/a> is the author of the leaked opinion draft which seeks to overturn the roe v. Wade decision. Retiring Justice Stephen<\/a> 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<\/a> 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<\/a> has reaffirmed that right in casey versus planned parenthood. So, in my opinion, that is settled law. And that was retiring Justice Stephen<\/a> breyer at his 1994 confirmation hearing, discussing the legalities of abortion. Amy Coney Barrett<\/a> is the newest justice currently on the court. She was nominated by President Trump<\/a> 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<\/a> 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<\/a> view that roe can and should be overturned by the Supreme Court<\/a> . 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<\/a> 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<\/a> Supreme Court<\/a>, its reaffirmed in kc in 1992. And in several other cases. So a good judge will consider as president of the United States<\/a> Supreme Court<\/a> 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<\/a> 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 feinstein. Thank you, mister chair. And judge, good morning good. Morning. Situate on row i wasnt going to begin with this but i will recall the time we spent in my office, and we talked about precedent, and in my opening remarks i indicated that if anything had super precedent roe did in terms of the numbers. And i put that in the record. Huge suede becomes a concern. The president had said that he would appoint as someone who would overturn roe. You pointed out to me that you viewed president 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 president it has lots of value, it has value in itself because our history. Our history has really, in value intrinsically. But it also is an instrumental value, in this sense. It edited to determine a sea of law it adds to the determination of law. We have a lot of tools that allow us to narrow the realm of admissible dispute between parties so that people care and anticipate and order their efforts. It is part of the reason why the rule of law in this country works so well. We have statutes, we have rules we, have a fact finding process in the judicial system thats the envy of the world. The president is a key part of that. Because as the chairman pointed out, when he quoted a piece of mine, once a case is settled that adds to the determination determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward. And senator, the value of that is United States<\/a> Supreme Court<\/a> takes Something Like<\/a> 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 is like 0. 001 . And they are unanimous in those cases which have provided circuit judges. Thats why Supreme Court<\/a> largely takes the case because his divided us. Its one of the rare cases where we disagree. Theyre unanimous 40 of the time. One other question. Sure. Do you view roe as having super precedent . Well senator, super president is in numbers, 44 it has been remembered many times. Justice neil gorsuch is one of three justices nominated by President Trump<\/a> and confirmed to serve on the Supreme Court<\/a>. He began his tenure in 2017. In light of the leaked opinion on overturning the 1973 roe v. Wade decision, American History<\/a> tv is looking back at what the current members of the high court had to say about abortion during their confirmation hearings. Justice elena kagan began serving on the court in 2010. The former times Harvard Law School<\/a> dean was nominated by president obama. She too too was asked about the issue in her confirmation hearing. As i understand the law after casey, its that after viability, the state can regulate as it pleases, except for situations where the womans life or Health Interests<\/a> are at issue. Before viability the question is whether there is an undue burden on the womans ability to have an abortion. Is it fair for the court to consider scientific changes in when a fetus becomes a viable as medical science evolves . Senator graham, i do think that in every area, that it is fair to consider scientific changes. We have talked in the past about how different forms of Technology Influence<\/a> the evolution of the courts Fourth Amendment<\/a> jurisprudence. Im glad to hear 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<\/a> 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 on board would be much appreciated on my part by considering science, not your personal feelings, because i think is appropriate for the court to do so. That we 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. He repeatedly stated that you would respect gonzales versus car argument, in which the courtroom rejected official challenge to the federal partial abortion act, based on stare decisis. Thats what you said in the last hearing. I assume thats your position today. Absolutely, senator. Carhart that, the gonzalez case is settled law and entitle to all the president of south laura Going Forward<\/a> and oh i. Want to make a very present comment based on my opening statement. Many of us believe roe v. Wade is a matter of privacy in the womens chase and not taking sides in an abortion [inaudible] the right to privacy and what is the appropriate role for the government to play. Elena kagan has served on the Supreme Court<\/a> since 2010. The next justice well be listening to is brent kavanaugh. His contentious 2018 nomination hearings included questions about roe v. Wade heres. A proportion. Well, as a general proposition, i understand the importance of the president set forth in roe v. Wade. So roe v. Wade held, of course, and is 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 roe and also in planned parenthood versus casey, more fully, is along the lines of what you said, senator feinstein, about the quote from justice oconnor. So thats one of the rationales that under that undergirds roe v. Wade, is one of the rationales that undergirds lantern versus casey. Let me give you a rational. In the 19 50s and 60s, two decades before roe, deaths from illegal abortions in this country ran between 200,001. 2 million. Thats according to the good marker institute. So a lot of women died in that institute died in that period. So the question comes and you have said today not today, but its been reported that you have said that roe is now settled law. The question first question i have a view 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 roe is settled precedent or could be overturned . And has your views changed since you were in the Bush White House<\/a> . Senator, i said that its settled as a president of the Supreme Court<\/a> entitled to respect the principles of stare 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, senator, i know when that case came up, the Supreme Court<\/a> didnt just reaffirm it in passing, the court specifically went through all the factors of stare decisis in considering whether to overrule it. And the joint opinion of justice kennedy, justice oconnor, and justice souter, at great length went through these factors. That was the question presented in the case. Could i interrupt you to say, since you mentioned stare decisis, and ive sat on nine of these hearings, and when the subject comes up, the person says, i will follow stare decisis, and they get confirmed, and then of course, they dont. So, i think now 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 senator, 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 attached to the room the way 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, my stuff just passed me a note. And let me read it to you because i think its a good have your views about whether roe is settled precedent changed since you were in the Bush White House<\/a> . My yes or no . Well, ill tell you what my views im not sure what is referring to about Bush White House<\/a>, but i will tell you what my view right now is, which is its an important president of the Supreme Court<\/a> that has been affirmed many kinds and plant this point i want to because important planned parenthood versus casey reaffirmed [inaudible] bro and did so considering the stare decisis factors. So casey now becomes a precedent on precedent. Its not as if its just a route of the mill case that was decided and never been reconsidered by casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes casey a precedent on precedent. Another example of that you might say there are other cases like that miranda. So miranda is reaffirmed a lot, but then in the dickerson case in 2000 chief Justice Rehnquist<\/a> writes the opinion considering the stare decisis factors and reaffirming miranda, even the chief justice [inaudible] by the way, had been a fervent critic of miranda throughout his career, he decided that it had been settled too long, had been president too long, and he reaffirmed it [inaudible] im sorry to interrupt. Im sorry to interrupt. I want to switch subjects, and 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 president of the senator, again, i would tell Supreme Court<\/a>, im in roe v. Wade and planned parenthood versus casey, been reaffirmed as a judge as a judge . Many kinds. Caseys precedent as a judge it is an on precedent, which itself is important president of the Supreme Court<\/a>, im in roe v. An important factor to wade and planned parenthood versus casey, been reaffirmed remember. And i understand the many kinds. Caseys precedent significance of the issue, the on precedent, which itself is jurisprudential issue and i an important factor to understand the significance. As remember. And i understand the significance of the issue, the jurisprudential issue and i understand the significance. As best i can. I was [inaudible] and i do hear of the real world effects of that decision as i tried to do over all the decisions of my court and all the Supreme Court<\/a>. And youre watching American History<\/a> tv on cspan as we look back to see what the current Supreme Court<\/a> justices had to say about abortion and the law during that confirmation hearing chief Justice John Roberts<\/a> has served on the court since 2005. The george w. Bush nominee had this to say when asked about the 1973 roe v. Wade decision. Well, senator the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the casey pinion but, also in either opinions outside that area of the law. The principles of stare decisis look at a number of factors settled expectations, one of them, as you mentioned. Whether or not particular precedents have proven to be on workable is another consideration on the other side. Whether the doctrinal bases of a decision have been eroded by subsequent developments. For example, if you have a case in which there are three president s 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 prior precedent. But theres no doctrinal basis erosion in roe, is there, roberts . Well, i feel the need to stay away from a discussion of particular cases. Im happy to discuss the principles of stare decisis. And the court has developed a series of precedents on precedent, if they if you will. They have a number of cases talking about how this principle should be applied, and that he emphasized in casey, they focused on settled expectations. They also look at the work ability and the erosion of precedents. The aversion of precedent, i think, figured more prominently in the courts discussion in the warrens case for, example. But it is one of the factors that is looked at on the other side of the balloons. Well, do you see any erosion of precedent as to roe . 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 court docket, of course. It is an issue that does come before the court. So im happy to talk about stare 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 we are dealing with any specific issue if, when you mention and you brought the term barbara erosion of precedent, where you see that as a factor in the application of stare decisis or expectations for example on the citation i quoted from casey versus planned parenthood. Well, in the particular case of roe, obviously, you have the casey decision in 90, 92, the 93. 92. 92. In which they went through the various factors in stare decisis and reaffirmed the Central Holding<\/a> in roe while revisiting the trimester framework and the substituting the undue burden analysis for strict scrutiny. So as of 92, you had a reaffirmation of the Central Holding<\/a> in roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles. The joint opinion [inaudible] after the statement as 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. Its 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 im reluctant to do that. Thats one of the areas where i think the prior nominees have drawn the line when it comes to do you agree with this case, or do you agree with that case. And thats something that im going to have to draw the line in the same place. Well im not going to ask you whether youre going to vote to overrule 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 roe. It would seriously weaken the courts capacity to exercise the judicial power and to function as the Supreme Court<\/a> of a nation dedicated to the role of law. Now, this moves away from the specific holding and goes to a much broader jurisprudential 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 role would be, quote, a surrender to put political pressure, and added quote, to vote a rule under fire would subvert the courts legitimacy, close quote. So in these statements on casey, youre really going beyond the holding, 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 payne 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 a factor in favor of reaffirming the decision. So its a factor that is in play in different ways in different precedents of the court i. Do think that its a jolt to the illegal system when you overrule a precedent. Precedent plays an Important Role<\/a> in promoting stability and even handedness. It is not enough, and the court has 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 a question. And you do look at these other factors like settled expectation is like, the legitimacy of the court, like whether a particular president is workable or not or whether a precedent has been eroded by subsequent developments, all of these factors go into the determination of whether to revisit the president based on the principles of stare decisis. A jolt to the legal system, a movement against stability. One of the roberts doctrines. If the overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability go ahead its just going to say that the principle of stare decisis recognize that there are a situations where there is a price to be paid. Obviously brown versus board of education is a example, overruling plessy versus ferguson. The west coast hotel case overruling the lockner era decisions. Those were two a certain extent jolt to the legal decision and the arguments had a lot to do with stability and predictability. But the other arguments, that intervening precedents had eroded the authority of those cases, that those president s that they were overruled and proved unworkable, carried the day in those cases. One final citation from the joint opinion in roe, quote, after nearly 20 years of litigation in roes wake are satisfied that the immediate question is not the soundness of roads 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 in elevating president ial force even above the specific holding of the case . That is the general approach when youre considering stare decisis. Its the notion that its not enough that you might think that the president is flawed that, there are other considerations that enter into the calculus that have to be taken into account. The values of respect for president , even handedness, predictability, stability. The considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether its been eroded. So to the extent that the statement is making the basin point that its not enough that you might think the that is a portion of what she Justice Roberts<\/a> had to say about abortion in the long in precedent is flawed to justify revisiting it, i do agree with that. His 2000 of five confirmation hearing. Next up, president obamas 2009 nominees saw intercepted by our. Heres what she said about the issue. The courts decision in concurrent versus casey reformed the Court Holding<\/a> of roe. That is a president of the court, and settled in terms of the holding of the court. Do you agree with justice souter, oconnor and kennedy in their opinion in case, which reaffirmed the Court Holding<\/a> enroll . As i said, casey reaffirmed the holding in row that. That is the Supreme Court<\/a> settled interpretation of what the Court Holding<\/a> us and its reaffirm as so. All right. So let me ask you in a difficult area of the law, a question. The Supreme Court<\/a> has decided on more than seven occasions that the law cannot put a Womans Health<\/a> at risk. It said it in a row in 73, in down fourth in 76, in planned parenthood in 83, in thornburg in 86, in case in 92, in carhart in 2000, and in iowa in 2006. With both justices roberts and alito on the court, however, this rule seems to have changed because in 2007 in car hard to the Court Essentially<\/a> removed this basic constitutional right from women now. Heres my question. When there are multiple president s and a question arises, are all the previous decisions discarded, or should the court riyadh examine all the cases on point . Its somewhat difficult to answer that question because before the court in any one case is a particular factual situation. And so how the courts president applied to that unique factual situation because often what comes before the court its something thats different than its prior decision. Not always, but its somewhat difficult to answer that question because before the court in any one case is a particular factual situation. And so how the courts president applied to that unique factual situation because often what comes before the court its something thats different than its prior decision. Not always, but often. In the carhart 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 a, i dont believe, a rejection of its prior precedents. Its prior precedents are still the president s of the court. The health and welfare of a woman must be a compelling consideration. Im you mentioned many cases. It has been a part of the courts jurisprudence and a part of its precedents, those precedents must be given deference in any situation that arises before the court. And that was justice anna sotomayor, responded to questions about roe v. Wade during her 2009 confirmation hearing in the senate. 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 a 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. I think we all feel strongly in this country about our privacy, i do. I believe the constitution protects the right to privacy. And i have no reason to prejudge the issue or to predispose to rule one way or 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 it some of the questions which you responded yesterday, both from senators thurman, hatch it and biden about matters that might come before the court. He certainly can express an opinion as to whether or not a woman has a right to choose to terminate her pregnancy without indicating how you expect to vote in any particular case. And im expecting you to do that. Senator, i think that to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue. Judge thomas, in 1990 i chaired a hearing on the freedom of choice act where we heard from women who were maimed by back alley abortionists. Prior to the roe, it decision, only wealthy women could be guaranteed access to safe abortions. Poor and middle class women were forced to say unsafe back alley is 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. The kinds of abortions were coat hanger substitutes for surgical instruments. The consequences of roe demise are so horrifying to me, and millions of american women and men, that i want to ask you, once again, appealing to your sense of compassion, whether or not you believe the constitution protects a womans right to abortion. Senator, the prospect and, i guess as 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 was subjected to the agony of an environment like that, on a personal level, certainly, i am very pained by that. I think any of us would be. I wouldnt want people subjected to torture of that nature. And i think its important to me, though, on the issue, the question that you asked me, as difficult as it is for me to anticipate or want to see that kind of illegal activity, i think it would undermine my ability to sit on an impartial way on an important case like that. I have some difficulty with that, judge thomas. Im frank to tell you because yesterday you responded, when senator biden asked you if you supported the right to privacy, validated in more v. The city of east cleveland, by agreeing that the courts ruling 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 really in pain vtc, families victimized by violence should be allowed to participate in criminal cases. You went on to respond by indicating that the court had recently consider that matter and you expressed concern that such participation could undermine the validity of the process. You also responded to saturday thurmans questions about the validity of placing limits on appeals and Death Penalty<\/a> cases. The fairness of the sentencing guidance, which was another one of his questions. And a good faith exception to the exclusionary rule, which was another one of his questions. Finally, you responded when senator hatchet asked if you might rely on substantive due process arguments to strike down social problems, programs, such as osha, food safety laws, childcare legislation and the and the like 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, end of 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 for other members of this committee. And thats a look at what the current nine justices on the Supreme Court<\/a> had to say about abortion and the law. A reminder that all Supreme Court<\/a>","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia804703.us.archive.org\/27\/items\/CSPAN3_20221024_150500_Supreme_Court_Nominees_on_Roe_v._Wade\/CSPAN3_20221024_150500_Supreme_Court_Nominees_on_Roe_v._Wade.thumbs\/CSPAN3_20221024_150500_Supreme_Court_Nominees_on_Roe_v._Wade_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240619T12:35:10+00:00"}