In their coverage of Supreme Court nominee John G. Roberts Jr., numerous media outlets have continued to baselessly suggest that Roberts's 2003 pledge to “fully and faithfully apply” Roe v. Wade as the “settled law of the land” signals that he would vote to uphold the ruling if confirmed to the Supreme Court. In fact, Roberts's description of Roe as “settled law” in the context of an appellate court nomination indicates nothing about either his personal views on abortion, or whether he would vote to uphold Roe if confirmed to the high court. As an appellate judge, Roberts must uphold the law and adhere to Supreme Court precedent or face the threat of reversal; his description of Roe as “settled law” merely amounted to a pledge to do his job. But as a Supreme Court justice, Roberts would be free to reconsider and overturn prior Supreme Court rulings, including Roe.
For the second successive night, NBC News justice correspondent Pete Williams misconstrued Roberts's use of the term “settled law.” On the July 20 broadcast of NBC's Nightly News, Williams repeated Roberts's assertion in his 2003 confirmation hearing to the U.S. Court of Appeals for the D.C. Circuit that he was simply representing his client when he wrote a legal brief in 1990 on behalf of the first Bush administration advocating overturning Roe. According to Williams, Roberts's 2003 testimony proved he “saw it otherwise”:
WILLIAMS: But it's Roberts's own views on abortion the Democrats will pursue as a lawyer in the first Bush administration. This is the Supreme Court brief Roberts helped file in the 1990 abortion case. It said Roe v. Wade was wrongly decided and should be overruled. But at his confirmation hearing two years ago for a federal appeals court judgeship, he said he was representing his client, the government, and that he saw it otherwise.
ROBERTS [video clip]: Roe v. Wade is the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent.
Earlier in the day, Williams himself had more accurately characterized the significance -- or lack thereof -- of Roberts's 2003 statement. Moreover, while challenging White House press secretary Scott McClellan during a July 20 press briefing to explain why it is “unreasonable” to expect Roberts to be more “forthcoming” about his views on abortion, Williams's colleague NBC News chief White House correspondent David Gregory noted that Roberts's statement in 2003 says little about how a Justice Roberts would rule on Roe. “As an appellate judge, he [Roberts] is limited by what is the Supreme Court decision, but as a justice, he would wield so much more power and have the authority, you know, to reverse 'settled law,' ” Gregory noted.
In their reporting on Roberts, CBS correspondent Gloria Borger, ABC White House correspondent Kate Snow, Fox News general assignment correspondent Major Garrett and CBS Early Show anchor Julie Chen all adopted similarly misleading frameworks. Each suggested that Roberts's 2003 testimony somehow clarified the stance he took on Roe v. Wade in the 1990 brief.
From the July 20 broadcast of CBS' Evening News:
BORGER: Roberts's credentials are not in question. It's his personal views that Democrats want to know more about. On abortion: In 1991 [sic] as an attorney in the first Bush administration, Roberts signed a brief challenging Roe v. Wade as “wrongly decided,” adding “it should be overruled.” Yet at his Senate hearings, Roberts said he was representing the government as its lawyer, and called Roe v. Wade “the settled law of the land.” Separately, he said, a judge is bound by the law.
From the July 20 broadcast of ABC's World News Tonight:
SNOW: Those trying to define Roberts's views on abortion rights are zeroing in on two pieces of his record. In a legal brief, Roberts approved when he worked as a government lawyer under the first President Bush, he argued Roe v. Wade was wrongly decided and should be overruled. But in confirmation rulings in 2003, he was asked to clarify. "Roe v. Wade," he replied, “is the settled law of the land. There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”
From the July 20 edition of Fox News' Special Report with Brit Hume:
GARRETT: On abortion, Roberts, while a top Bush administration attorney, co-signed a 1990 brief arguing for the overturning of the landmark abortion rights case Roe v. Wade. It came up at Roberts's confirmation hearing for the Court of Appeals for the D.C. Circuit.
ROBERTS [video clip]: Since that was the administration position, and the administration was my client --
GARRETT: Roberts later added that he considered Roe, quote, “settled law,” unquote.
From the July 21 broadcast of CBS' The Early Show:
CHEN: Getting to know him is exactly what Democrats want, especially what he thinks about abortion. As a lawyer in the first Bush administration, he co-wrote a brief which said Roe v. Wade was wrongly decided and should be overruled.
SEN. RICHARD J. DURBIN (D-IL) [video clip]: What is your position on Roe v. Wade?
CHEN: But 12 years later at confirmation hearings for his appeals court seat, senators questioned him about the landmark abortion ruling.
ROBERTS [video clip]: It's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent.
While both Borger and CNN's Brian Todd noted Roberts's assertion in the 2003 hearings that as an appellate court judge he would be “bound” by precedent, neither they nor the other reporters explained that while judges are indeed restricted in this way, Supreme Court justices are not.
From the July 20 edition of CNN's Wolf Blitzer Reports:
TODD: There's nothing tangible to indicate his position on the death penalty. But he does seem to have sent strong signals on abortion rights, signing off on a 1990 Supreme Court brief that said, quote, “We continue to believe that Roe was wrongly decided and should be overruled.” But he later made clear that he argued that case on behalf of President George H.W. Bush while serving as deputy solicitor general. And at his 2003 confirmation, Roberts stressed the importance of following previous court rulings.
ROBERTS [video clip]: There's no role for advocacy with respect to personal beliefs or views on the part of a judge. The judge is bound to follow the Supreme Court precedent.
On the July 20 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly went further, apparently interpreting the 2003 statement to mean that Roberts “would have no problem upholding Roe v. Wade” on the Supreme Court and criticizing the “liberal print” media for ignoring the statement:
O'REILLY: I expect him to be confirmed by the end of the year. But not before the pro-abortion senators work him over, playing to the reproductive rights crowd. The left-wing print press was in lockstep about the judge's stand on abortion. Nearly identical wording in editorials about the judge's stand on abortion appeared in The New York Times, the San Francisco Chronicle, The Washington Post, USA Today, among others. Now, if you don't think there's a group-think among the liberal print, you're living in Oz. He has stated he would have no problem upholding Roe v. Wade. But that will be -- not be enough for the opposition crowd.