In an interview with CNN's Wolf Blitzer, CNN senior analyst Jeff Greenfield repeated a false claim by former Republican National Committee chairman Ed Gillespie that John Roberts “never said” that Roe v. Wade was “settled law” during his Supreme Court nomination hearings. Blitzer failed to challenge or correct this false statement.
During CNN's live January 11 coverage of Supreme Court nominee Samuel A. Alito Jr.'s confirmation hearing, CNN senior analyst Jeff Greenfield repeated former Republican National Committee chairman Ed Gillespie's false claim that Chief Justice John G. Roberts Jr. “never said” that Roe v. Wade was “settled law” in his 2005 Supreme Court nomination hearings. The discussion was prompted by Alito's response to Sen. Richard J. Durbin's (D-IL) questions during the January 11 hearing about whether Alito considers Roe to be “settled law.” In fact, when Senate Judiciary Committee chairman Arlen Specter (R-PA) asked Roberts at his September 13, 2005, Supreme Court hearing whether his appellate hearing statement that Roe was “the settled law of the land” meant that it was “settled only for your capacity as a circuit judge, or settled beyond that,” Roberts replied: “Well, beyond that, it's settled as a precedent of the court.”
According to Gillespie, Roberts described Roe as settled only “in his confirmation to the 1st Circuit Court of Appeals,” before noting that “there is a difference obviously in following the dictate of the Supreme Court -- there is no revisiting when you are an appeals court judge, as there is on the Supreme Court.” Moments later, Greenfield said that Gillespie “did make clear” that Roberts didn't describe Roe as settled when he was “a prospective Supreme Court chief,” but rather “as a candidate for a lower federal court, all of whose members are bound by the Supreme Court.” But while it is true that there is a substantive difference between describing Roe as “settled” during an appellate hearing and a Supreme Court hearing, as Media Matters for America has extensively documented, Roberts referred to Roe as “settled” in both hearings. (Roberts was, in fact, a judge on the U.S. Court of Appeals for the D.C. Circuit, not the 1st Circuit, as Gillespie claimed. Further, Roberts's appellate hearing was in 2003, not in 1991 or 2001, as Gillespie also claimed.)
Responding to Specter, Roberts confirmed during his September 13, 2005, Supreme Court nomination hearing that, “beyond” his capacity as an appellate judge, he considered Roe “settled as a precedent of the court, entitled to respect under principles of stare decisis,” the recognition of court precedent:
SPECTER: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: ''Roe is the settled law of the land.'' Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?
ROBERTS: Well, beyond that, it's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the [Planned Parenthood v.] Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.
Alito responded to Durbin's question about whether Roe v. Wade was “settled law” as follows: "[I]f 'settled' means it is a precedent entitled to respect as stare decisis ... then it is a precedent entitled to respect under stare decisis."
From CNN's January 11 coverage of Alito's nomination hearing:
BLITZER: You helped John Roberts prepare for his confirmation hearings. He was approved; he's now the chief justice. He said Roe v. Wade, in his view, was the “settled law of the land.” But we didn't hear -- we didn't necessarily hear Samuel Alito go that far. He said it's “an important precedent,” but he refused to say it was “settled law.”
GILLESPIE: Well, actually, Wolf, when Senator Durbin cited that, and I'm sure one of the other senators will correct the record on that, but Chief Justice Roberts never said that in the Supreme Court confirmation hearing. That was from 1991, when he was -- I'm sorry, 2001, in his confirmation to the 1st Circuit Court of Appeals. And there is a difference, obviously, in terms of following the dictate of the Supreme Court. There is no revisiting when you are an appeals court justice or judge as there is on the Supreme Court. And so, Chief Justice Roberts did not say that and was pressed on it, in fact, and what he said was pretty much exactly what Alito said, which was, as a justice on the Supreme Court, we would treat it with the respect it is due under the principles of stare decisis.
GILLESPIE: So Senator Durbin is right that John Roberts had referred to Roe as “settled law,” he left out the context for it -- it was not during his Supreme Court confirmation hearing, it was during his appellate court confirmation hearing.
GREENFIELD: Ed Gillespie, on air, did make clear that when Senator Durbin said John Roberts said abortion was “settled law,” he didn't say it as a prospective Supreme Court chief. He said it as a candidate for a lower federal court, all of whose members are bound by the Supreme Court. So in that sense, the spread between Roberts and Alito is a lot less than it might have looked like.