John Roberts May Not Think Abortion Law "Settled" After All

National   |   Steven Ertelt   |   Aug 10, 2005   |   9:00AM   |   WASHINGTON, DC

John Roberts May Not Think Abortion Law "Settled" After All Email this article
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by Steven Ertelt Editor
August 10, 2005

Washington, DC ( — Observers of the confirmation process for Supreme Court nominee John Roberts have been trying to dissect his views on abortion. In a legal brief for the administration for former President Bush, Roberts argued Roe v. Wade was bad law and should be overturned. Later, in his 2003 appeals court nomination hearings, he called Roe "settled law."

In an effort to explain Roberts’ views, Attorney General Alberto Gonzales, last month, said Roberts was required to say Roe was "settled law" because appeals court judges are not expected to overturn high court precedent.

That left it open for Roberts to decide, as a member of the Supreme Court, that Roe v. Wade could be overturned.

In a Tuesday meeting with Oregon Sen. Ron Wyden, a Democrat, Roberts confirmed that suspicion.

Wyden said he was concerned by Roberts’ answer to a question he posed about whether he still believed the Roe abortion decision is settled law.

Roberts told Wyden the notion of "settled law" depends on what court one is a member of — opening himself up to the possibility of overturning Roe. The Supreme Court is clearly different from the Court of Appeals, Roberts explained.

Wyden told the Associated Press the answer was surprising.

"I will tell you, based on my discussion with Judge Roberts this afternoon, the concept of what is settled law is not exactly settled," he said.

Wyden indicated the answer was not enough to cause him to vote against Robert’ confirmation, but said he wanted to follow up on the answer in the Senate Judiciary Committee hearings set for September 6.

"If you’re asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you’re bound by the precedent," Gonzales told the Associated Press about Roberts’ "settled law" remarks. "If you’re a Supreme Court justice, that’s a different question because a Supreme Court justice is not obliged to follow precedent if you believe it’s wrong."

NARAL president Nancy Keenan seized on Gonzles’ statement, saying it proved Roberts wants to overturn Roe.

"They are coming clean on how meaningless his evasive 2003 testimony was," Keenan told the Washington Post newspaper.

"It’s now even clearer than before that the far-right activists who’ve been turning handsprings in celebration of Roberts’ nomination are getting exactly what they wanted: a proven activist opponent of personal freedoms like a woman’s right to choose," Keenan added.