Roberts's Right to Vote Against Roe Is Defended

By Dan Eggen
Washington Post Staff Writer
Wednesday, July 27, 2005

Supreme Court nominee John G. Roberts Jr. will be free to vote to overturn the 1973 Roe v. Wade abortion decision if he is appointed to the high court, Attorney General Alberto R. Gonzales said yesterday.

Although Roberts called the Roe decision "settled law" during hearings on his nomination as an appellate court judge in 2003, Gonzales said in an interview with the Associated Press that a Supreme Court justice "is not obliged to follow precedent if you believe it's wrong."

Justice Department spokeswoman Tasia Scolinos said the remarks were meant only to explain "a technical difference between circuit courts, which are bound by precedent, and the Supreme Court, which often gives great deference to precedent but is not required to abide by it."

"It would be a real stretch to claim this purely factual statement about how our court system operates is indicative of how Judge Roberts would address the abortion issue, or any other issue," Scolinos said.

But abortion rights groups immediately criticized the remarks, saying they amounted to evidence that Roberts is more conservative in his views than publicly portrayed by the Bush administration.

"They are coming clean on how meaningless his evasive 2003 testimony was," Nancy Keenan, president of NARAL Pro-Choice America, said in a statement. "It's now even clearer than before that the far-right activists who've been turning handsprings in celebration of Roberts's nomination are getting exactly what they wanted: a proven activist opponent of personal freedoms like a woman's right to choose."

With only two years on the U.S. Court of Appeals for the District of Columbia Circuit, Roberts has given little indication of his views on abortion. But advocacy groups that are gearing up to oppose him have pointed to a legal brief he helped write while serving at the Justice Department in the George H.W. Bush administration that said Roe was "wrongly decided and should be overruled."

Republicans argue that the brief merely reflected the official legal position of the administration at the time. And in Senate testimony in 2003, while he was under consideration for the federal appellate bench, Roberts said that he viewed the decision finding a constitutional right to abortion as "settled law."

When asked about that testimony yesterday, however, Gonzales said Roberts's earlier statements have no bearing on what he might do as a Supreme Court justice.

"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," Gonzales told the AP. "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."

Gonzales's comments on Roberts come after his own travails over the abortion issue. A close friend of the president, Gonzales was considered an early favorite to be nominated as a replacement for departing Justice Sandra Day O'Connor, but he came under fierce attack from conservatives who disagreed with rulings he joined in Texas that upheld exceptions to a parental notification law there.

In his own confirmation hearings earlier this year, Gonzales testified that he viewed Roe as the "law of the land."

Democrats have largely abstained from criticizing Roberts directly on abortion and other specific issues, focusing their efforts on trying to obtain documents related to Roberts's time in government. In the interview, Gonzales said he opposes releasing documents from Roberts's time as deputy solicitor general, arguing that the release "would chill communication and opinion and giving advice" among federal attorneys.

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