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Holding Court with Joan Biskupic

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Friday, February 4, 2000

The justices have agreed to take up the constitutionality of state laws banning a late-term abortion procedure known by its opponents as "partial birth" abortion. When the court hears arguments in the Nebraska case this April, it will mark the first time since 1992 that the justices will address a woman's right to end her pregnancy. At the same time, the justices have also taken up a Colorado case testing how far states can go to keep demonstrators away from health clinics that do abortions – without infringing on free speech rights. Abortion has divided the court and country for decades. And it recently emerged as a hot political issue for the presidential candidates.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EST. The transcript follows:

Joan Biskupic: Welcome. The abortion issue continues to roil Americans. Today, we'll be talking about the abortion cases at the court and how the issue is playing into the presidential race. By the way, some of you may have noticed this morning that Gary Bauer is dropping out of the presidential race, for lack of support. He was running a conservative campaign, particularly denouncing abortion. In fact, he claimed that if he won he would end "abortion on demand."

Arlington, Va.: Regarding presidential selection of judicial nominees, I have read that Bush says he would nominate individuals who will strictly interpret the constitution. Does McCain differ from Bush in terms of what he would look for in a nominee?

Joan Biskupic: Both have said they want judges to more narrowly interpret the Constitution, but I think Bush's rhetoric has been stronger in this area. On abortion, Bush and McCain both favor banning so-called "partial birth" abortions. But McCain generally has seemed more open about allowing abortion in cases of rape, incest and threats to a mother's health. McCain also has said there's no way that abortion will ever be banned, which suggests that he likely would not be looking for court appointees who would try to overturn Roe v. Wade.

Lake Wales, Fla.: How is it that abortion has even become legal as it was never voted on by Congress? When I was young abortion was considered murder now it is a woman's right where did that come from? Would it not be more civil to fund adoption rather than abortion?

Joan Biskupic: Interesting question. In 1973, the Supreme Court ruled that the Constitution included a right for women to end a pregnancy and effectively made abortion legal nationwide. The court cited a right of personal privacy (in the 14th Amendment) broad enough to encompass a woman's decision on whether to terminate a pregnancy. ... This is the Roe v. Wade ruling that's been subject to constant controversy since... But it's for the Supreme Court, not the Congress, to say what's in the Constitution and what rights it embodies.

Mansfield, Mass.: Do you see the court revisiting Garcia during this term? I understand that there are a couple of appeals relative to Garcia pending.

Thank You.

Joan Biskupic: Hello Mansfield, Mass. Are you watching this live? If so, let me know if you're referring to Garcia v. San Antonio Metro Transit... that's the 1985 case that upheld the federal minimum wage and overtime law as applied to cities and states. ... If this is what you're interested in, there is a sense that a majority on this court might want to reverse this ruling sometime in the near future. There are several states' rights cases still pending this term; they don't give the justices a clear shot at the 1985 decision, tho. ... But they do offer the court greater opportunity to continue boosting states' power and authority, at the expense of Congress. Rehnquist and O'Connor dissented in Garcia and warned (15 years ago) that they would someday have a majority to reverse it.

Boston, Mass.: With respect to the question about fleeing suspects – I did not think that the Supreme Court could actually mandate that states give officers the right to stop a fleeing subject based on the fact that he was fleeing. I was under the – maybe incorrect – impression that while states cannot permit individuals (such as a fleeing subject) to have fewer rights than the Supreme Court decides are constitutional, they certainly can permit individuals to have more. Thus, wouldn't it be impermissible for the court to tell a state it HAS to take away individual rights by forcing them to allow policeman to detain a suspect who flees?

Joan Biskupic: Hmmm. First, just to remind everyone of the case you're referring to... the justices ruled last month that police may sometimes stop and frisk a person who runs at the sight of an officer. The dispute had to do with the protections of the Fourth Amendment against unreasonable searches and seizures. Here, the suspect claimed that the cops didn't have enough grounds to suspect he was doing something wrong and to justify stopping him. The court ruled that mere running at the sight of the uniform can be enough. Now, this doesn't mean that states, cities and their police forces have to adopt such a policy. What it does mean is that the high court has interpreted the Constitution in a way that gives more leeway to police (if they want it) and less 4th Amendment protection to people who might want to avoid searches.

Washington, D.C.: Off topic for a second – can you explain how a chief justice is chosen? Is it usually an associate already on the bench, or can any judge be appointed?

Joan Biskupic: Great question. This is basic stuff for us insiders but something that most people wouldn't know. It's completely up to the president. He can elevate someone who's already on the bench, as Reagan did with Rehnquist in 1986. Or, he can choose someone who's never been on the court, as Nixon did with Burger in 1969 and Eisenhower did with Warren in 1953. Warren had never even been a judge at any level. He was governor of California at time. It's entirely up to the president.

washingtonpost.com: Gary Bauer isn't the only presidential hopeful who promised to end abortion on demand. It's a key component of the campaigns of both Steve Forbes and Alan Keyes as well. But this promise to end abortion as soon as they're in office – is that really possible? Is it mostly campaign rhetoric?

Joan Biskupic: No, the president could not end abortion rights. The Supreme Court has said a woman has a constitutional right to terminate a pregnancy, so the only way to overturn that is with a constitutional amendment or with a new ruling from the court saying the 1973 Roe v. Wade decision (and the 1992 affirmation of it) was wrong. ... So, yes, it is mostly campaign talk, but it obviously touches a nerve with many people.

Amsterdam, The Netherlands: Justice Stevens recently blocked the enforcement of a ban on partial birth abortions in his circuit (the fifth, I believe). Suppose the Supreme Court doesn't give cert., does this automatically mean that the ruling of the Circuit Court is the law of that part of the land or does Stevens still have to power to overrule/reverse the ruling.

Or more generally: can a justice overrule-reverse rulings of the circuit court he/she supervises on his/her own when the full Supreme Court refuses to hear a case?

Joan Biskupic: I love questions from overseas. But, Amsterdam, you've actually missed some news on the abortion front. First, you're right about Stevens blocking enforcement of a "partial birth" law, but it was in the Chicago-based 7th Circuit. Shortly after that, the full Supreme Court agreed to take up the constitutionality of one of these laws (from the nearby 8th Circuit), so right now everything is on hold. ... The Supreme Court will hear arguments in April over the constitutionality of bans on the "dilation and extraction" procedure, as it is known medically. (It involves dilating a pregnant woman's cervix to allow the fetus to partially emerge and then inserting a suction tube into its skull to remove the brains.)... So the case that Stevens blocked will be resolved when the full court decides the larger constitutional question. And no justice has the power to single-handedly reverse a lower-court ruling. He or she can block it from taking effect, but only temporarily.

Philadelphia, Pa.: How likely is it that the next president might nominate a statesman or political type to the court? And are any names of political types being rumored? Or is the trend of elevating sitting judges likely to continue?

Joan Biskupic: I generally think future presidents are going to take a cautious course and avoid politicians. When Clinton won in 1992, Mario Cuomo was at the top of his list. But these days, none of the candidates are touting big nationally known politicians as potential appointees. (Clinton ended up choosing two federal appeals court judges for his high-court appointments. Republicans warned him away from Bruce Babbitt at one point.) I think the ordeal over Clarence Thomas and even Robert Bork is fresh enough that no candidate with a controversial paper-trail (whether it be as an elected official or as a judge) will be put up. ... The only exception may be a U.S. senator, simply because the Senate, which has the advise and consent power, is likely to be more deferential to one of its own.

Arlington, Va.: Considering the court's support for states' rights over congressional action in many cases, do you think that these justices would allow any state to declare the legality of late-term abortions?

Joan Biskupic: No, simply because a state law banning all late-term abortions would conflict with the 1973 Roe and 1992 Casey decisions.

washingtonpost.com: Gary Bauer has also said that he is appalled that seven of the nine justices on the Supreme Court are Republican appointees and still uphold Roe v. Wade. He mentioned this as part of his "litmus test" argument that judges who oppose Roe v. Wade were the only ones he would appoint. But doesn't his argument about Republican-appointed justices fly in the face of the concept of judicial independence? After all, Harry Blackmun was a Republican (Nixon) appointee.

Joan Biskupic: Right. The point of a separate branch of government is independence. And history is full of examples of judges who disappointed the men who appointed them. Blackmun indeed wrote Roe v. Wade. Then in 1992, Reagan appointees O'Connor and Kennedy joined with Bush appointee Souter to make sure abortion rights were upheld. (Actually, the other two justices who made up that critical 1992 majority were Blackmun and Stevens, Nixon and Ford appointees.)

Washington, D.C.: Do you suspect that eventually Roe will be whittled down and the question will be totally left to the states?

Joan Biskupic: No, I believe that, for better or worse, Roe v. Wade will be the law of the land. ... In 1992, when the court narrowly upheld Roe, Justices O'Connor, Kennedy and Souter wrote that Americans have lived with legalized abortion for more than 2 decades, they depend on it, and abortion has changed the country socially and economically – there's no turning back, even in the minds of these more conservative justices.

Virginia Beach, Va.: During her nomination hearing I thought I heard commentators say that Justice Ginsberg was personally pro-choice (former ACLU attorney, I believe) but that she questioned the reasoning of Roe v. Wade. Is she expected to come down on the liberal side of this issue with respect to partial birth abortion or will she be a swing vote?

Joan Biskupic: You have a good memory. Ginsburg did admit that she thought that Roe v. Wade could have been better reasoned. She said she agreed with the bottom line of abortion rights (AND I don't think she'll backtrack with the partial-birth abortion issue), but she questioned whether the 1973 majority too broadly interpreted the liberty/privacy guarantee in the 14th Amendment. I think she believed that too big of a constitutional step; she's fond of referring to the need for "measured motions." If I'm remembering right, I think she thought the court was foisting too much on the country at the time and that she believed a woman's right to end a pregnancy might have been better grounded in the Constitution's equal protection guarantees. I expect her to come down squarely on the side of abortion rights in the new case.

D.C.: Re: the question about how abortion became legal since Congress never voted on it – am I wrong in my belief that Congress doesn't GIVE us rights, but rather we have the right to do something unless it is made illegal? In other words, Congress can vote to make something ILLEGAL, but not to make it LEGAL?

Joan Biskupic: Actually, there are many "statutory" rights and benefits passed by Congress. But generally, it's the Constitution that broadly protects our individual rights and liberties. And Congress, when it comes to personal conduct and business activities, is in the business of prohibiting, curtailing, regulating...

Virginia Beach, Va.: Note to Washington Post: Give me a break: Gary Bauer isn't going against judicial independence in his desire that Supreme Court justices vote a certain way anymore than NOW or Planned Parenthood is.

He wants those nominated to interpret the Constitution a particular way – not that they be FORCED to vote a certain way by the other branches after taking the bench – same as NOW and Planned Parenthood.

washingtonpost.com: Point well taken. However, my point was that Bauer's argument assumes that a judge or justice is going to interpret the Constitution in a certain way simply because he or she is appointed by a Republican with conservative beliefs. Many presidents have been surprised – and not entirely happily – by their judicial appointments. — Lisa Todorovich, producer.

Joan Biskupic: I won't add to that.

Hoboken, N.J.: I am very concerned about the possibility that a Republican winning the White House will mean that the Supreme court will be stocked with justices who will overturn Roe v. Wade. In fact I am terrified of the prospect. Could you go over what the Democrats in the Senate can do to block such nominees? What power would they have if they are still in the minority – as I expect they will be? How much of a majority is needed to confirm justices?

Joan Biskupic: It takes only a majority of the 100 senators to confirm a judicial nominee. If indeed a nominee was against Roe v. Wade and everyone knew it, I'm sure there would be a huge fight in the Senate. And remember, even though the GOP is in the majority, not all the Republican senators oppose abortion rights.

Alexandria, Va.: Under what circumstances can the court overturn a previous decision? Does another case on the matter have to be brought to the court?

Joan Biskupic: It's completely up to the justices. They can decide that a prior case was wrongly decided. But they can't just issue an advisory opinion of sorts. They have to have a case before them on the topic. Now, even though the court can reverse itself at any point, it has a long-standing philosophy of adherence to precedent. In 1992, the three key justices who voted to uphold Roe, even tho they said they personally had problems with abortion rights, said that they believed it important to stick to precedent.

Los Angeles, Calif.: You have mentioned that the court has accepted quite a few cases of real significance for argument late in the current term. Given that there are often cases accepted at the end of one term and heard in the next, do you ever see the court exercising its discretion to review something so late in the term that it has no choice but to schedule the argument in the next term, with the apparent purpose of giving themselves more time to come to a decision? If so, what does that tell you about the seeming willingness of the court to pick up the recent "hot button" cases without a lot of time left to work on them?

Joan Biskupic: Good question. The partial-birth abortion case came up right on the borderline. The justices could have waited a few weeks, accepted the appeal, then held it over for arguments in October. I don't know what the justices were thinking, but they might have believed that because lower courts were divided over the constitutionality of these abortion-bans they had to intervene. And if they had to do it eventually, they should do it immediately.

New York City, N.Y.: Are there rules about which justice swears in the vice president?

Joan Biskupic: No, not that I know of.

Joan Biskupic: And that's it for this week. Thanks to all who participated, and for those whose questions were left pending, I'll try to answer a few of them next week. While the justices are still in recess, we're going to focus on what the presidential candidates are saying about the court, any litmus tests and what names have been circulating out there. So tune in next Friday and we'll mix politics and the law.

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