Updated: Senators Begin Questioning Roberts

This morning, the second day of the hearings, the real (red) meat began with Senators doing their best to pry into John Roberts' personal views on assorted issues from civil rights to abortion.

Republican chairman of the Judiciary Committee Senator Arlen Specter asked Roberts a number of questions concerning Roe v. Wade, especially the importance of respecting previously-decided cases. Roberts did not reach the issue of whether he thought Roe was a proper ruling. "I should stay away from discussion of specific cases," he told Specter.

The cringe moment of the morning came when pro-choice Republican Spector pulled out a huge chart detailing 38 Supreme Court cases, which Spector claimed represented 38 times that the Supreme Court had a chance to overrule Roe: "Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled? . . . would you think that Roe might be a super-duper precedent in light of 38 occasions to overrule it?"

"Which side is he on?" is the question that came to mind. Deflating the abortion issue for Roberts by bringing it up before the Democrats is a proper tactic, but spelling out in great detail the numerous opportunities that the Court supposedly could have overruled Roe and declined to do so hardly helps cast Roberts in the mainstream (assuming that he would vote to overturn Roe). "Super-duper precedent"? Perhaps the Senator was citing Scottish law again.

Roberts set Spector straight: "The interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question." Roberts was being kind, as he must. The key purpose of precedent is that it permits a court to decide the issues in the case at hand without a need to redecide every prior controversy all over again each time a new case comes before the Court. Supreme Court decisions are long enough, full of historical recounting of precedent. It is a principle of judicial restraint that judges should not interpret the law any further than is needed to decide the case at hand.

Roberts pointed out that the proper place for a judge to begin would be with Planned Parenthood v. Casey (1992), which directly considered the issue of whether Roe should be overruled.

So far, Roberts is on track for confirmation.

(Photos courtesy CNN.com and AFP/Micah Walter)