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2006-01-12

Alito Refuses to State Whether Roe v. Wade is Settled Law

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Supreme Court nominee Samuel Alito refuses to state that Roe v. Wade was the settled law of the land — a statement made by John Roberts four months ago during his confirmation hearings to become Chief Justice of the Supreme Court. [includes rush transcript]

In 1985, Samuel Alito wrote in a federal job application that he personally believes "the Constitution does not protect a right to an abortion."

On Tuesday, during the first day of questioning, he declined to say whether he still believes this but he vowed to go into any case involving abortion with a "open mind."

On Wednesday, however, Alito refused to state that Roe v. Wade was the settled law of the land — a statement made by John Roberts four months ago during his confirmation hearings to become Chief Justice of the Supreme Court.

  • Sen. Dick Durbin (D–IL), questioning supreme court nominee Samuel Alito.
  • Jamin Raskin, Professor of Constitutional Law at American University’s School of Law and author of "Overruling Democracy: The Supreme Court vs. the American People."

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: We want to turn now to the issue of abortion. In 1985, Alito wrote in a federal job application that he personally believes, quote, "The Constitution does not protect a right to an abortion." On Tuesday, during the first day of questioning, he declined to say whether he still believes this, but he vowed to go into any case involving abortion with a, quote, "open mind." On Wednesday, however, Alito refused to state that Roe v. Wade was the settled law of the land, a statement that was made by John Roberts four months ago during his confirmation hearings to become Chief Justice of the Supreme Court. This is Democratic Senator Richard Durbin of Illinois questioning Samuel Alito on Wednesday.

SEN. RICHARD DURBIN: Do you believe it is the settled law of the land?

JUDGE SAMUEL ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions, and I discussed those yesterday. And it is my — and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes, in Casey based on stare decisis.

And 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, the more often a decision is reaffirmed, the more people tend to rely on it. And secondly, 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 examine a question and they reach a conclusion, I think that’s entitled to considerable respect. And, of course, the more times that happens, the more respect the decision is entitled to. And that’s my view of that. So it’s a very important precedent that —

SEN. RICHARD DURBIN: Is it the settled law of the land?

JUDGE SAMUEL ALITO: It is a precedent — if "settled" means that it can’t be re-examined, then that’s one thing. If "settled" means that it is a precedent that is entitled to respect of stare decisis and all of the factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

AMY GOODMAN: Supreme Court nominee, Samuel Alito, responding to questions from Senator Richard Durbin. Jamin Raskin, your response?

JAMIN RASKIN: Well, again, the whole reason why the right wing turned on Harriet Miers was precisely because they didn’t think that she was trustworthy on the abortion question and had said things kind of on both sides of the issues — both sides of the issue over the years. And the mantra on the right has been "No more Souters." That is, no more appointees like David Souter, who was named to the court by Bush’s father, who might end up doing the wrong thing.

There was a lot of phony baloney yesterday about the Democrats imposing an abortion litmus test. The litmus test, of course, comes from the right wing, which sacked Harriet Miers precisely because she was not a dependable vote against abortion. Everything in this nominee’s record suggests that Alito would be someone moving very quickly on the court, along with Scalia and Thomas, to topple Roe v. Wade.

And, you know, the Concerned Alumni of Princeton group also used to talk about abortion, as well as affirmative action and South Africa divestment and all of these things, so he’s someone who feels very comfortable in that ideological milieu, which is the same reason he’s a member of the Federalist Society.

JUAN GONZALEZ: Ted Shaw, Judge Alito did say that he believed that "one person, one vote" was settled law in the country. But you also have some concerns about his record on voting rights issues. Could you talk about that?

TED SHAW: Yes. Well, first, he did say at the hearing that "one person, one vote" was settled law, because he had run into some trouble on that issue. In fact, in the 1980s he had indicated that he believed that "one person, one vote" was problematic — the decision that gave us "one person, one vote" was problematic.

In voting rights, he’s had limited opportunity to rule in voting rights cases. One of the cases in the Third Circuit had to do with a challenge to at-large elections gains, which have often been used to subordinate minority voters’ opportunity to elect representatives of choice. And in the case he ruled upon, he said that the at-large scheme should not be struck down.

So it’s indicated again that he parses very narrowly, and this is somebody who is really concerned about interpreting civil rights laws in the most stingy way. Whether it’s the Voting Rights Act, whether it’s in the employment discrimination laws, his interpretations have been the most cramped, narrow readings, which again indicate what his thinking is, what his leanings are. And he does not believe in a vigorous interpretation, from what his record indicates, of civil rights laws.

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