Washington, DC (LifeNews.com) -- As pro-life Sen. Mike DeWine did during the second day of hearings on Supreme Court nominee Samuel Alito, pro-life Sen. Sam Brownback of Kansas indicated that Roe v. Wade is not settled law.

BROWNBACK: Thank you. Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.

BROWNBACK: That would be correct. And the answer, when the court gets things wrong, is to overturn the case. Is that -- that's the way it works, isn't that correct?

ALITO: Well, when the court gets something wrong, and there's a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it...

BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you have gone through this.

Brown v. Board of Education, which is in my hometown of Topeka, Kansas -- I was there last year at the dedication of the school house, 50 years ago -- that overturned Plessy.

Plessy had stood on the books since 1896. I don't know if you knew the number. And I've got a chart up here. It was depended upon by a number of people for a long period of time.

You've got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You've got these number of cases that considered Plessy and upheld Plessy to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that's just not right.

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly -- would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously...

ALITO: Doctrine that would consider.

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.

BROWNBACK: Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.

BROWNBACK: They don't.

ALITO: I think they should have recognized that.

But one of the things that was illustrated in those cases -- and Sweatt v. Painter, the last one on the list, brought that out -- was that, in fact, the facilities, the supposedly equal facilities, were never equal.

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated -- if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.

BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court's willing to review various cases.

BROWNBACK: I want to give you an example of a couple, though, that the court hasn't reviewed yet that I think are spectacularly wrong.

The 1927 case of Buck v. Bell; I don't know if you're familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.

Buck's guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state's interest to have her sterilized.

Majority opinion written by Justice Oliver Wendell Holmes said, "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents."

Clearly, some precedents are undeserving of respect because they're repugnant to the Constitution. Isn't Plessy repugnant to the Constitution?

ALITO: It certainly was repugnant to the equal protection clause.

BROWNBACK: And the vision of human dignity.

Isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?

ALITO: I think they are repugnant to the traditions of our country. I don't think there's any question about that.

BROWNBACK: Give you another case, the Korematsu case versus the United States, 1944 case. World War II broke out following Japanese attacks on Pearl Harbor. Feelings spread that Japanese-Americans, both naturalized and those born in the United States, might not be loyal to the United States; should be removed from the West Coast.

BROWNBACK: So great was the fear that even the esteemed writer, Walter Lippmann stated that, quote, "Nobody's constitutional rights include the right to reside and do business on a battlefield. There's plenty of room elsewhere for him to exercise his rights."

President Roosevelt signed an executive order removing them. Korematsu contested the constitutionality -- Fred Korematsu did -- of his internment.

In Korematsu v. the United States, the Supreme Court held that military necessity justified the internment program and that Fred Korematsu had no protection against relocation under the Constitution.

Of course, that was later overturned. Excuse me: That was never overturned. In 1948, Congress enacted the Japanese American Evacuation Claims Act to provide some monetary compensation. In 1980, Congress again revisited the case.

In 1988, Congress passed legislation apologizing for the internment; awarded each survivor $20,000. In 1999, Fred Korematsu was awarded the Presidential Medal of Freedom, the highest civilian honor that anyone can receive.

Justice has not been done because Korematsu remains on the books. It's still on the books.

Roe v. Wade: you have had every question on that. But I want to point out its difficulty. My colleagues on the other side look at this as completely settled law, but let's see what the legal experts say about how settled it is.

Lawrence Tribe, who will be here to testify, I believe probably against you, in a little bit. Let's see what he says, professor of law at Harvard.

Quote, "One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

BROWNBACK: Settled law? Super-duper precedents? Lawrence Tribe asked some questions about it.

Justice Ruth Bader Ginsburg: "Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."

"Provoked, not resolved, conflict" one of your potential colleagues says.

Edward Lazarus, former clerk to Chief Justice Harry Blackmun, who wrote Roe: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right was granted elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather."

Settled law? Edward Lazarus has some questions about it being settled.

Let's look at John Hart Ely, former dean of Stanford Law School. Excellent law school in the country -- one of the top law schools in the country.

Roe v. Wade, quote, "is not constitutional law and gives almost no sense of an obligation to try to be. What is frightening about Roe is that this superprotected right is not inferred from the language of the Constitution framers' thinking respecting the specific problem at issue, any general value derivable from the provisions they included or the nation's governmental structure."

John Hart Ely -- think he thinks Roe is settled law? Not constitutional and gives no sense of an obligation to try to be.

Alan Dershowitz, professor of law, Harvard Law School, one of the top law schools in the country. It's not Princeton, but -- Roe v. Wade and Bush v. Gore, quote, "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political process.

"Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims, as in the abortion controversy. Clear governing constitutional principles are not present in either case."

BROWNBACK: Settled law, super-duper precedents? I think there's places where the court gets it wrong, and hopefully they will continue to be willing to revisit it.