Friday, July 29, 2005

Should Roberts Answer Questions About Roe v. Wade?

On matters of politics, National Review contributor Andrew McCarthy and Senator Chuck Schumer rarely agree. Yet, they both believe that nominees to the Supreme Court should answer questions about important Supreme Court precedent like Roe v. Wade. McCarthy writes that Roe is a "transcendent decision" that "defines the judicial task itself." Money quote:


If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.

Thus, while the effort of some Senators to solicit Roberts' views on Roe may be pretexts to elicit his views on abortion, McCarthy believes that the Roe inquiry is justified to understand the nominee's fundamental approach to jurisprudence.

In the public sphere, Roe is widely considered to be a case about abortion rather than a case about jurisprudence. People who are pro-life are believed to oppose Roe; people who are pro-choice are believed to support it. McCarthy's article reminds us that some people (I come to mind) simultaneously hold the following two beliefs: (1) Roe v. Wade is poor jurisprudence; and (2) the Federal Government should not outlaw abortion.

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