Tuesday, September 13, 2005

This is rich
Armando, over at Daily Kos, tries to argue that Justice Clarence Thomas misrepresented his beliefs in his Senate hearings. He quotes an article that says:

Appointed to the Supreme Court in 1991 after a lengthy and bitter confirmation process, Justice Thomas is considered one of the most conservative justices on the bench, usually voting with Justice Scalia. He is staunchly opposed to abortion and believes that Roe should be overruled. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Thomas joined with Rehnquist when he wrote:
"We believe that Roe was wrongly decided, and that it can and should be overruled."
Also in Casey, Thomas joined Justice Scalia when he wrote:
"The issue is whether it [the right to choose] is a liberty protected by the Constitution of the United States. I am sure it is not."
Justice Thomas has even voted to overturn a measure protecting women seeking abortion care from harassment, joining Justice Scalia's scathing dissent in Hill v. Colorado that termed the Court's decisions regarding abortion a 'contradiction of constitutional principles.'

At his confirmation hearing, Justice Thomas assured Senators that he believed in the doctrine of stare decisis and denied any strong feelings on the abortion debate. His support of Scalia's dissent in Casey indicates otherwise. Critics have even suggested that Justice Thomas perjured himself in his Senate hearing in order to be confirmed.
OK, let's look at this.

Liberals love pointing to the term stare decisis, because it enables them to mislead people about its meaning. If you listened to people like Armando, you'd believe that stare decisis implies absolute adherence to precedent. In fact, according to the FindLaw Legal Dictionary, it is:
the doctrine under which courts adhere to precedent on questions of law in order to insure certainty, consistency, and stability in the administration of justice with departure from precedent permitted for compelling reasons (as to prevent the perpetuation of injustice). (emphasis added)
Get that? Belief that Roe should be overturned and support for stare decisis are in no way mutually exclusive. In fact, they go together quite nicely—if you believe that abortion constitutes the murder of innocent children (sounds like an injustice to me), then the doctrine effectively provides justification for overturning the decision, not opposition. So, no perjury on that point.

Next, I suppose Armando would say "well, he said he had no strong feelings on the abortion debate." Yeah, and? What's your point? Is it inconceivable to liberals that a Supreme Court Justice might actually be able to judge a case at face-value? Is it completely impossible that Thomas listened to the debate over Casey and determined based on the facts laid out before him that Justice Scalia's argument was more sound than the majority's? Thomas has not come out since Casey as a pro-life activist, so how do we know that he now has strong feelings? All it proves is that he reached a conclusion, not that it's a particularly strongly-held conclusion. And even if he does now have strong feelings, that's insufficient to show that he had them during his confirmation hearings. So, again, no perjury.

At the heart of this matter is the question of how a judge is supposed to decide on a particular case. Armando, Biden, Teddy K. et al. believe thta abortion is an unalienable right, and that no matter whether it's represented in the Constitution, a judge must decide in favor of an unrestricted "woman's right to choose" in every case.

Scalia, Thomas—and, based on the 30 minutes of hearings I listened to today, Roberts—they believe a judge must be an independent, impartial arbiter of each set of facts that come before them. They look at the controlling law, they look at the information provided to them by counsel, and they reach a conclusion—so not only should they not give any indication as to how they might rule down the road, they shouldn't be able to do so.

And I still say Biden needs a beatin'.

UPDATE [9/15/2005 - 9:43]: Dave Justus has a comment that's spot-on.


Exile said...

while I agree that asserting perjury in justice thomas' confirmation hearings is a pointless trifle, though I have less faith in his impartiality and little reservation that he would have said whatever was required to be confirmed, I think that examining his judicial philosophy for evidence of concealing a tendency to use prejudicial judgement is fair and should not be characterized as merely partisan. also, I think that Roberts' qualifications for the position of chief justice should nto excuse him him skepticism and rigorous inquiry that seeks to tell if he is going to be a plant for the partisan right to play politics with the court, because I for one do not believe that they, or any other hardcore political constituency, is above doing so.

RFTR said...

That's part of my point...

If he's willing to answer a question that would expose "a tendency to use prejudicial judgment," then he has prejudicial judgment.

In other words, insisting that he must answer these questions (just in case he's prejudiced) is the same thing as expecting (even demanding) that he be prejudiced.

Dave Justus said...

I think it quite possible to not have strong feelings on the abortion debate, but have strong feelings that a) Roe was wrongly decided and b) their is no right to choose in the constitution.

I for one, am pretty happly with the substance of Roe v. Wade that gauranteed abortion during the first trimester. I think it a reasonable compromise and for various reasons pretty good policy.

I don't think however that that case was decided correctly. It was, in my opinion, a very poorly crafted decision and created a policy prescription rather than narrowly ruling on a case. I think that this has greatly hurt both the abortion debate in this country and damaged the institution of the judiciary, leading to the sort of questions we are seeing in the hearings not, many of which are totally innappropriate.

So I don't have a 'strong interest' in the abotion debate, but I do believe that Roe was very wrong, damaging, and continues to be damaging.