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William C. Altreuter
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Friday, July 22, 2005

I've been thinking about what I'd like to ask Judge Roberts. The footnote in the Rust brief that he was lead counsel on reads:

"We continue to believe that Roe was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution."

I'd ask, first, "Understanding that you were taking an advocacy position here, were you the principal author of this footnote?" A follow up might be, "Was the inclusion of this footnote a matter that you approved?" Actually, real cross could get you somewhere with this, but I'll buy you a cup of coffee and a doughnut if we see any real cross.

What I'd really want to know would be this: "In Rust the Court was asked to decide whether doctors and clinics that receive federal funds may discuss abortion with their patients. (Put another way, the question was whether, given the holding in Roe, the government could inject itself, by way of regulation, into the physician/patient relationship.) Given the undisputed fact that Roe was and remains the law of the land, and accepting that the principle of stare decisis requires deference to established law, how did the argument set forth in the footnote serve to advance the argument you were asserting?" I could ask this one a couple of different ways too.

I don't doubt that this cat is so much smarter than I am that he'd run circles around me in a classroom. Under oath, though, I'd be interested in hearing what he had to say. Because here's the thing-- Rust wasn't about whether Roe should be overturned-- it was a much narrower question, and arguing that the easy way to answer the question would just be to just change the law is pretty disingenious-- even in a footnote. Viet Dinh argues that that's not what the footnote says: "[It doesn't] even squarely say what the extreme liberal interest groups read [it] to say: namely, that the brief Roberts signed argues for overruling Roe v. Wade. Rather, these sentences simply point out as a statement of historical fact that the Department of Justice since 1983 had argued that Roe was wrongly decided." Dinh is being cute here, of course. I'll betcha a second doughnut that Judge Roberts is too smart to try to convince even somambulent sheep that are the Senate Democrats that he was just making a statement of historical fact.

As nominees go, I suppose we could have done worse. Apparently this guy is not an alien from space, or a zombie. He hasn't, as far as I know, advocated torture. He is from Buffalo, which was all John LaFalce had to know. (Words fail me. What the hell do you know about judges, LaFalce?) Roberts clerked with Judge Friendly, who was a modern Cardozo. Unless it turns out that he has an amphetamine lab in his rec room, he's the guy we are going to get.

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