I am utterly baffled right now.

[SackAttack]

Everywhere I turn, I read and hear comments to the effect that Roe v Wade is going to be the litmus test for whether Roberts is appropriately qualified to serve on the Supreme Court.

I realize that during my lifetime it's been the same way, but for more serious students of the Court, I have to ask - has the Senate ever done this with other high profile SCOTUS precedents?

At what point did the question of a nominee's suitability swing from his knowledge of the law and ability to interpret said law according to the Constitution turn into "will he uphold this precedent that's important to me and my constituents and bugger all the rest"?

I'm asking in a general sense, not with respect to Roe v Wade specifically, or how I feel about it personally; I bring it up only because it's the 'litmus test' being used for the current SCOTUS vacancy.

[Leonidas]

What's really neat is it would be against the Bar's legal ethics for a nominee to answer whether or not they support Roe v Wade. The Congressmen and Senators know this but will ask the question anyway for their own grandstanding purposes. Prospective judges are not supposed to publicly comment or offer opinions on cases they have a high likelihood of presiding over. I think it's assinine for politicians to talk about this as a litmus test and wish we could do, you know, something productive in the government.

[kcchief19]

Originally Posted by SackAttack

I realize that during my lifetime it's been the same way, but for more serious students of the Court, I have to ask - has the Senate ever done this with other high profile SCOTUS precedents?

At what point did the question of a nominee's suitability swing from his knowledge of the law and ability to interpret said law according to the Constitution turn into "will he uphold this precedent that's important to me and my constituents and bugger all the rest"?

At what point? 1803. Marbury v. Madison was the first real case that established the role of the Supreme Court and even that case had plenty of personal constituency involved.

This type of single-issue stalemate has happened plenty of other times. During the 1800s, the litmus test was largely slavery. In a twist, there was obviously Roosevelt's effort to pack the court by adding more justices who would uphold the New Deal policies.

I don't think the Senate is solely to blame. I think the presidents over the last couple of decades share the blame. No doubt that the Senate debates have become overly partisan, but so have the nominees. The presidents have chosen candidates who have almost no legal record on abortion but whose views they are assured as they can get. There are much better legal minds than Scalia, Thomas, Ginsberg and Breyer, but they are on the court because they thought like the presidents who nominated them. I'd love to know the inside story on David Souter's selection. How Bush's team missed on that one in this day and age is amazing.

Sadly, if there were a more "permanent" solution to the Roe v. Wade debate, we'd find something else to fight over.

[SackAttack]

Originally Posted by kcchief19

This type of single-issue stalemate has happened plenty of other times. During the 1800s, the litmus test was largely slavery. In a twist, there was obviously Roosevelt's effort to pack the court by adding more justices who would uphold the New Deal policies.

I don't know if that was an effort so much as a threat, but the point is taken.

I don't think the Senate is solely to blame. I think the presidents over the last couple of decades share the blame. No doubt that the Senate debates have become overly partisan, but so have the nominees. The presidents have chosen candidates who have almost no legal record on abortion but whose views they are assured as they can get.

My concern is the independence of the judiciary. If their views on the Constitutionality of a given issue can be used to torpedo their nomination to the courts (or Court), then doesn't the judicial system just become an extension of the reigning Senate?

Shouldn't we be looking for judges who know the law and respect and uphold the Constitution, rather than judges who will be more likely to support one political faction or another on a given issue?

[sooner333]

I don't understand why there is all of this flack on the case anyway. Overturning Roe would not outlaw abortions everywhere. Some states allow abortions, others do not according to state law. The Roe case wrongly assumes that the constitution offers a right to privacy such that the state cannot regulate abortions...therefore it is a Federal (constitutional) issue, rather than a state issue.

If/when the court overturns the Roe decision, we will have some states allowing and others not allowing abortions via the 10th ammendment.

[sooner333]

Originally Posted by SackAttack

Shouldn't we be looking for judges who know the law and respect and uphold the Constitution, rather than judges who will be more likely to support one political faction or another on a given issue?

I agree with you whole heartedly. The problem is that those judges are too "unpredictable" for the President. It would almost be better if they just appointed a person right out of law school just so we got a fresh mind deciding cases without having to have a past to judge on in the senate. And while the senate may pass Roberts, there were certainly others who weren't picked because they would have to be grilled...therefore eliminating many candidates.

[Leonidas]

nevr mind.

[Greyroofoo]

What's really funny is that Roe v Wade was seen as a victory for the Pro-Life people at the time