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Jewish World Review Sept. 15, 2005/ 11 Elul 5765

Cal Thomas

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Roberts rules

http://www.NewsAndOpinion.com | The last place I want to be is at the dentist; until I witnessed 18 senators (21 if you count those who "introduced" John Roberts at his Supreme Court confirmation hearing) posture for the cameras and special interest groups. The dentist is looking better. At least he has painkillers. There is nothing to dull the pain of pontificating senators.

Roberts demonstrated more class, integrity and legal knowledge than most of his interrogators. The most laughable performance (as of Tuesday) was by Sen. Joseph Biden, Delaware Democrat. After spending about eight minutes making statements and not asking a question, Biden accused Judge Roberts of "filibustering" in his answer to one of the questions Biden eventually asked.

Biden's body language, his arrogant and condescending attitude and his use of the vernacular ("I hope you don't still hold that view, man" and "Hey, Judge, how are ya?") was improper and ill-mannered. Worse, though, was Biden's amnesia.

Biden tried to make political hay out of a memo a young John Roberts wrote on Dec. 11, 1981, in which he referred to a "so-called right to privacy." Three months after Roberts wrote his memo, Biden voted in favor of the Hatch Amendment which, among other things, sought to declare that the Constitution does not secure a right to abortion. By voting for an amendment whose purpose was essentially to obliterate the "so-called right to privacy," Biden aligned himself with Roberts' thinking.

These hearings are an excellent classroom on contrasting views of the U.S. Constitution. One view, held mostly by Democrats, says the Constitution is open to the interpretation of judges to advance a social and cultural agenda that advocates of such policies know they do not have a voluntary prayer of getting through Congress. These include, but are not limited to, abortion and "gay rights." The other side believes judges, as Judge Roberts put it, are like umpires, because "they don't make the rules." They are, he said, "servants of the law, not the other way around."

That's bad news for the left, which for four decades has counted on the Supreme Court to pay lip service to the Constitution while running roughshod over the document. Roberts effectively told the senators that making law is their job and interpreting those laws in light of what the Founders had in mind when they wrote the Constitution is the job of judges. On several occasions, Roberts used the word "limited" when referring to the role of judges and courts.

On the issue of greatest importance to social conservatives — abortion — Judge Roberts paid homage to precedent, but he carefully crafted his answer. He noted Planned Parenthood vs. Casey, while affirming Roe, dispensed with its trimester approach for when abortion might be regulated by the states and replaced it with a requirement that no state may place an "undue burden" on a woman seeking an abortion. Roberts suggests in Casey, Roe's "doctrinal bases of a decision had been eroded by subsequent developments."

For those who believe Roe was wrongly decided (including some people who support abortion rights), that is a significant statement. It indicates that Roberts is not a fundamentalist about previous rulings and that one court is not prevented from overruling the decisions of another court when new information is presented.

Speaking about the value of honoring precedent to avoid an upheaval in law and culture, former Boston University Law School Dean Ron Cass told Creative Response Concepts, a firm working in support of John Roberts, "Not all precedents are equal. Some are wrong when decided and grow weaker over time. Other precedents such as Miranda vs. Arizona became stronger over time." Clearly, Roe falls into the former category. Whether a Chief Justice Roberts will reach such a conclusion depends on the type of case he is asked to decide.

Roe is being kept alive by artificial judicial means and will die a slow death. Just as certain legal arguments and precedents were established (such as the right to contraception) before Roe, so, too, will there be cases that continue to weaken Roe until the states are again granted the power to decide the issue. By going slow, Judge Roberts and his pro-life colleagues will be able to lessen the impact of upheaval.

Few doubt Roberts will be confirmed, but he is the undercard. The main event will come should President Bush nominate someone as, or more conservative, than Roberts for the remaining Supreme Court vacancy.

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