In statements today, Abu Gonzalez, our illustrious Attorney General (and the lawyer who doesn't know enough not to disclose privileged attorney-client communications on national television), suggested that Judge Roberts' former testimony during his hearings on his nomination to the DC Circuit concerning Roe v. Wade may not apply to his nomination to the Supreme Court.
As the article states:
The legal right to abortion is settled for lower courts, but the Supreme Court "is not obliged to follow" the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court.
In an interview with The Associated Press, Gonzales said a justice does not have to follow a previous ruling "if you believe it's wrong," a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue.
Abu is right. But because he's right, that means Roberts is absolutely obligated to state his views on Roe clearly and unequivocally during his upcoming confirmation hearings. More below.
Abu is right for one simple reason: the Supreme Court is the highest court in the land, and it is free to change its mind and repudiate its prior decisions. While there is a judicial principle known as "stare decisis" that counsels judges to remain faithful to prior decisions, it is not an absolute rule. The Supreme Court has occasionally overruled its own prior decisions throughout the years. This is as it should be, or else we'd still be laboring under such monumentally horrible decisions such as Plessy v. Ferguson (separate but equal is constitutional).
What this means, however, is that Roberts can't refer senators to his prior testimony when he's asked the $64 million question about Roe. He's up for a position on the highest court in the land, and senators have every right to know what he thinks about Roe, precisely because he will be free to repudiate it instead of obligated to follow it as he is now as a judge on a lower court.
Thanks, Abu. You've just made the Democrats' argument for them. Now let's start demanding answers.
By the way, the same article suggests someone schooled Abu on the attorney-client privilege since his appearance on Face the Nation. The article reports that, this time, he "declined to answer questions about his decision while White House counsel to delay notifying most White House staff about a Justice Department investigation into the leak of a covert CIA officer's identity."