In a July 28 article, Washington Post staff writer Charles Babington set up a false comparison between Justice Stephen G. Breyer's 1994 statement at his Supreme Court nomination hearing that Roe v. Wade “has been the law for 21 years” and the answer current nominee John G. Roberts Jr. gave when he described Roe as “settled law” during his 2003 confirmation hearing for his appointment to the U.S. Court of Appeals for the District of Columbia Circuit. Babington wrote that because Breyer characterized Roe as established law, which according to Babington he “signaled no wish to change,” Breyer's response was “essentially the answer Roberts gave” in his appellate hearing.
But while Breyer and Roberts used similar words to describe the landmark 1973 decision establishing a constitutional right to abortion, the contexts in which they made their respective comments gave those words very different meanings. Asking an appellate court nominee whether Roe or any Supreme Court decision is established precedent is a “different question” than asking a Supreme Court nominee, as Attorney General Alberto R. Gonzales said in a July 26 interview with the Associated Press: “If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent. If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong.” While Babington wrote that Breyer “signaled no wish to change” the Supreme Court's ruling, as an appellate court nominee Roberts was simply not in a position to give such a signal one way or the other.
Moreover, Breyer's comments differed from Roberts's in another respect: Beyond characterizing Roe as settled law, he also described access to abortion as a “basic right,” which Roberts did not.
From the Post article, headlined “On Question of Nominee Questions, No Clear Answer” :
Partly because liberals felt deceived by [Justice Clarence] Thomas, the ground had shifted by the time Ruth Bader Ginsburg, nominated by a Democrat, went before the Judiciary Committee in 1993. She strongly endorsed the right to abortion, calling it “central to a woman's life, to her dignity.” The Senate confirmed her 96 to 3.
The most recent justice confirmed, Stephen G. Breyer, in 1994, was a bit dodgier. He told the committee that Roe “has been the law for 21 years” and signaled no wish to change it.
That is essentially the answer Roberts gave in 2003, when he was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. He called Roe “the settled law of the land,” a response that many senators expect to hear at his Supreme Court hearings.
In his 2003 appellate court nomination hearing, in response to a question by Sen. Richard J. Durbin (D-IL), Roberts testified that Roe was “settled law” and that his personal views would not prevent him from “fully and faithfully applying that precedent” in his role as an appellate court judge:
DURBIN: I have been an attorney, represented a client, sometimes argued a position that I did not necessarily buy personally. And so, I am asking you today: What is your position on Roe v. Wade?
ROBERTS. I don't -- Roe v. Wade is the settled law of the land. It is not -- it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the [1992 Planned Parenthood v.] Casey decision. Accordingly, 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, as well as Casey.
By contrast, Breyer noted that Roe “has been the law for 21 years” when he was a Supreme Court nominee who would have authority to overturn it if confirmed. Responding to a question by then-Sen. Strom Thurmond (R-SC) at his 1994 confirmation hearing, Breyer described abortion access as a “basic right” :
THURMOND: Judge Breyer, it is likely that Justice Blackmun is most widely known to the public as the author of Roe v. Wade. What was your impression of his majority opinion in that landmark decision? In particular give us your thoughts on where he draws the line at different points during pregnancy as it relates to the state's interest in the regulation of abortion-related services. For instance, do you agree that the first trimester of pregnancy is distinctive and that the state should not be able to prohibit abortion during that period?
BREYER: You're asking questions, Senator, that I know are matters of enormous controversy. The case of Roe v. Wade has been the law --
THURMOND: Speak a little bit louder --
BREYER: Oh, yes. The case of Roe v. Wade has been the law for 21 years, or more, and it was recently affirmed by the Supreme Court of the United States, in the case of Casey. That is the law. The questions that you're putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I don't think I should go into those, for the reason that those are likely to be the subject of litigation in front of the court.
The July 28 article marked the third time that Babington has misconstrued Roberts's 2003 remark that Roe is “settled law.” In a July 22 article, Babington wrote: “Some liberal groups have expressed fears that Roberts, a conservative jurist, might seek to help overturn Roe, even though he has described it as 'settled law.' ” And an article the next day co-written by Babington and staff writer Richard Morin reported: “Antiabortion groups were quick to embrace Roberts this week, even though he said at his 2003 hearing that he considered Roe 'the settled law of the land.' ”