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I really don't know what to make of this :

(1) Is this comment meant to be a bite at Babyface for having lost the nomination to him?

(2) Is this bite meant to create an opening for pro-choicers to attack Roberts not on his record but on what he could do if on the bench?

(3) Is this Abu's way to ask the Dems to go soft on him in wake of the investigation over possible tampering of evidence over Plamegate?

(4) What does is this comment telling us that Bush doesn't want us to know?

(5) If this is Abu's way of turning on his master, does it mean they're really shitting their pants over at the White House?

Roberts was nominated by President Bush to replace Justice Sandra Day O'Connor, who favors abortion rights. Though Roberts has not expressed his personal views on the issue, groups on both sides are attempting to discern his leanings from his statements and writings.

Gonzales said circumstances had changed since Roberts commented on Roe v. Wade during his 2003 confirmation hearing for the seat he now holds on the U.S. Court of Appeals for the District of Columbia Circuit.

"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 said.

"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 said.

While abortion foes fret about Roberts' statement two years ago, abortion rights groups are concerned by a legal brief Roberts helped write for a Supreme Court case while serving as deputy solicitor general in the administration of President George H.W. Bush.

The brief argued that the landmark abortion decision "was wrongly decided and should be overruled." Bush officials have said the brief reflected administration policy and Roberts was one of nine lawyers who signed it.

Gonzales said deciding when to overturn an earlier ruling "is one of the most difficult questions any Supreme Court justice has to answer." Among the factors to consider is how old is the precedent, he said.

Gonzales said he has a "preliminary judgment" about whether the Constitution affords the right to an abortion, but he declined to reveal it.

Gonzales has been thought to be a candidate for the Supreme Court because of his close relationship with Bush and his Hispanic heritage. Conservative groups mounted a strong campaign against his selection, based mainly on questions about his abortion stance.

Asked about that opposition, Gonzales sighed before responding, "This is the big decision. People have waited for over 11 years. There was a lot of pent-up anticipation and a lot vested in this decision."

He would not say whether Bush interviewed him for the job.

Look at his cock-teasing with the "preliminary judgement" he won't reveal. And that sigh? I love the sigh.

I'm telling you, these people just don't cease to amaze me. I truly believe there's a real drama unfolding in the Bush inner circle and this is just a hint of what's to come. [update] edited a bit the poll for clarity

Originally posted to liza on Tue Jul 26, 2005 at 09:31 PM PDT.


Is SCOTUS not bound by precedent?

37%10 votes
59%16 votes
3%1 votes

| 27 votes | Vote | Results

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Comment Preferences

  •  Tips for the beer? (4.00)
  •  no, but (none)
    SCOTUS is absolutely not bound by precedent.  However, just because they are not bound by it does not mean that they should not consider why it was the precedent in the first place and should not give the settled law a GREAT amount of deference.  Times do and should change, and attitudes about various topics along with them.  Therefore, it is almost essential that SCOTUS be flexible enough to change established precedent, if times and the situation have changed enough to justify it.

    One of the many reasons that they should be cautious about changing existing precedent is because many other decisions and precedents, by lower courts and by SCOTUS itself are built upon the existing precedents set by SCOTUS.  Changing an existing precedent can have massive impact that ripples thoughout the system and has lots of potentially unintended consequences.  Therefore, it is also essential that they have VERY good reason for changing existing precedent and that they spend a lot of time thinking out the ramifications that such a change would have.  

    Oh, and your poll question is very confusing.  :)  

  •  SCOTUS doesn't have to follow precedent (none)
    Just like a district court looks at other district courts as persuasive, but not binding, authority, that is how SCOTUS looks at prior court rulings.

    And sorry, but that's good.  Two examples

    The Lochner Era- early 1900s-1936 or so.  The court strikes down a number of laws regulating the workplace (Ie, lower hours, working conditons, etc) saying it interferes with the 'freedom of contract' that it finds somewhere in the Constitution.  In the mid-1930s, the court finally changes its mind and starts upholding New Deal legislation

    Brown vs. Board of Education.  Ignores the completely on-point Plessy v. Ferguson and says segregation is per se unconstitutional, no matter what.  

    Precedent can be ignored.  

    •  what do you make of the comment though? (none)
      Since no other high-profile Republican has gone on record saying that? Why bring it up?
    •  BTW (none)
      Brown vs. Board of Ed, excellent example. Now I totally get the case for "no procedence". Still, what kind of political move is this, bringing it up like that?
      •  I'm not sure (none)
        My guesses are, in no particular order:
        1. There's a lot of constituencies to satisfy with Roberts.  The so-called moderate Republicans like his resume and the fact that he doesn't look like holy war is a fervent wish (a la Dobson or Robertson), but the wingnuts want to know he'll rule for them.  IE, not follow precedent.  If he says he'll follow Roe, a lot more conservatives will join Ann Coulter's currently lonely revolt against Bush's nominee.  

        The problem with this theory is that if you want to reassure wingnuts, you don't choose Gonzales, unless the issue is whether you're going to continue to try to electroshock freedom into the Iraqis'...well, I'll stop there.

        1. I'm guessing that its tough getting people on message when things seem to be in a constant state of free fall.  Maybe Gonzales didn't get the memo and started wandering off on his own?

        2. In all likelihood, you're probably right---he's annoyed he wasn't picked, and doesn't like that, after he hitched his star to Bush's wagon for years, some elitist white boy who hasn't done jack for Bush since 2000 gets the nod.  This is his way of kind of spitting on Roberts---'yes, at his level, you couldn't ignore precedent.'

        This is also ironic for a couple of reasons, but mostly because, whatever else is true about Roberts, his opinions have some zip.  They're interesting to read and well-reasoned.  Gonzales, on the other hand, was known as a plodder on the bench.  Then, as White House counsel, the memos he wrote on torture---in addition to being reprehensible---are really badly legally reasoned.  

        So he's probably jealous of Roberts both due to his probable new post and perhaps his intellectual talents as well.  

    •  Umm aren't you misinterpreting Brown? (none)
      Brown I did NOT declare all segregation to be unconstitutional.  It said in the case of public schools that separate public schools were inherently unequal and therefore did not meet the Plessy standard of separate BUT EQUAL

      Those who can, do. Those who can do more, TEACH!

      by teacherken on Wed Jul 27, 2005 at 05:36:43 AM PDT

      [ Parent ]

      •  That's incorrect (none)
        Previous cases, such as Sweatt, had left open the door that, if the system were truly separate but equal, then it would be OK.  

        But Brown declared that---no matter how equal these separate schools were---it would not matter, it would still be unconstitutional.  Of course, the court also randomly talked about social science a lot, but the constitutional stuff was in there.    

        Of course, Brown II gave the famous "all deliberate speed" ruling, which basically said to Southern states "even though these things are unconstitutional, we'll let you change it in your own time."  That gave the segregationists a chance to get the so-called "Massive Resistance" movement organized.  

        So even though the overall effect of Brown was not instant desegregation, the court declared that the Constitution dictated integregation.  And this was contrary to what it had declared in Plessy.  

  •  This is Abu's way of begging for the next spot (4.00)
    on SCOTUS.

    He knows the Focus on the Family nutjob-types think he's soft on abortion, so this is his whiny way of saying, "I'll overturn it, I prooooomise, if you just get me on the Supreme Court"!!

    He's waiting for Rehnquist to go away; he wants that spot so badly he'd do anything to get it.

    YEE-HAW is not a foreign policy.

    by molls on Tue Jul 26, 2005 at 09:49:51 PM PDT

  •  The legal answer (none)
    Saying that the Supreme Court can overturn precedent "if they think it's wrong" is an extremist position, supported by only Scalia and Thomas.

    According to everyone else, overturning precedent should only occur in extreme cases.  Obviously, the Supreme Court is the only judge of whether it's an extreme case, but there are certain principles they're supposed to live by.

    In the case of Roe v. Wade, those principles were analyzed in the Casey decision, and the Court determined that none of the factors existed that might justify overturning the precedent.  Nor is it possible that any of those factors have changed since Casey.  So if they do end up overturning Roe, it's a power grab and nothing more.

  •  Poor Wording (none)
    is scotus NOT bound....a yes answer would technically mean that yes, he is not bound by precedent, althought I doubt that's what some "yes" answerers had in mind.
  •  Gonzales is running interference... (none)
    ..on liberals.

    Think about it - Roberts is basically old news at present. Everyone is back on Rove's back. So Abu Gonzales says something controversial, the news networks pick it up, and the Repukes hope that the liberals will run with it and further push back the Rove issue.

    In the overall scheme of things, what Gonzales says doesn't matter and won't make a shred of difference to the confirmation. It's a straw man designed to get press inches, and should be duly ignored.

  •  Ignorant Kos reader? (none)
    Who posted that they didn't know what SCOTUS is? Is there really someone at dKos who doesn't know what it stands for?

    Don't freak - I did voted "What's SCOTUS"

    I did so to represent the millions of uninvolved, Americans who don't seem to care about their futures and that of their families;

    Who voted for Bush not once, but twice.

    Who use contraceptives but have no concept of what it took for you to be able to get them as easily as we can do now.

    Feel free to add more:


    "Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph." (T. Paine)

    by dmmteacher on Wed Jul 27, 2005 at 05:08:28 AM PDT

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