The Democrat campaign of slander and calumny against Judge Samuel Alito in confirmation hearings. Of particular note, though, was a discussion of the notion that certain cases constitute "settled law" and that their holdings should never be reexamined or overturn by future courts.

The drama of the hearings' third day nearly overshadowed the significance of the position Alito staked out on the landmark abortion case, Roe v. Wade . Senators also branched into new territory: Alito's record from 15 years on the Court of Appeals for the 3rd Circuit on cases involving religion, immigrants seeking to prevent deportation, and criminals' rights.

Alito edged closer to suggesting that he might be willing to reconsider Roe if he is confirmed to the high court, refusing, under persistent questioning by Democrats, to say that he regards the 1973 decision as "settled law" that "can't be reexamined." In this way, his answers departed notably from those that Chief Justice John G. Roberts Jr. gave when asked similar questions during his confirmation hearings four months ago.

Yesterday, Alito said that Roe must be treated with respect because it has been reaffirmed by the high court several times in the past three decades.

But when Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis." Stare decisis is a legal principle that, in Latin, means "to stand by that which is decided."

Alito's position is one which seems disingenuous to some, but is probably among the most intellectually honest and rational positions that one could stake out on the issue. It is that no decision is beyond reexamination, though precedent is entitled to respect.

It is, after all, the role of the courts to apply the law and the Constitution in the particular cases before them. That process involves, among other things, looking at prior precedents and holdings and engaging in analogy, either likening one case to another or disinguishing them from one another. Old decisions are looked at in a new light cast by new facts. And sometimes an older principle is seen as not being workable in light of other principles or developments in law and society. At such times, it is necessary and proper to overturn a prior precedent, even if it is a venerable one.

In 1954, for example, Brown v. Board of Education was handed down by a unanimous Supreme Court. It overruled the holding in Plessy v. Ferguson, which held that government-imposed regimes of "separate but equal" treatment of individuals based upon race were acceptable and constitutional. For six decades, courts had struggled with the application of the Plessy precedent, analogizing and distinguishing in cases decided afterwards. Doing so showed that the Plessy decision was essentially unworkable and ithat the results were inconsistent with the Constitution, and so the Supreme Court struck down the older decision in the seminal civil rights decision of the twentieth century. As we look back, it is clear that this was a wise and courageous decision on the part of the Warren Court.

Which brings me back to Roe. Spme thirty years ago, the Burger Court expanded the notion of privacy to include the right of a woman to take the life of her unborn child with no restrictions in the first trimester and with gradually increasing restrictions later on in pregnancy. The reasoning was so fractured that no one opinion could garner five votes. Indeed, later cases have both expanded that right to limit permissible restrictions and limited that right by upholding others. Subsequent decisions have relied on Roe, while others have shown its flaws and weaknesses. One decison even argues that the correctness of the decision is irrelevant simply because the precedent is precedent and has been relied upon in subsequent cases.

But that begs teh question. What if the facts of a case and an examination of outcomes lead a justice to conclude that Roe is, in whole or in part, unworkable or wrong? Must that justice ignore that conclusion because of precedent. Or should that justice attempt to forge a new consensus around the conclusion he has reached? I would argue the latter, just as was done in the Brown.

And I ould argue that is true in the case of any precedent, inot just Roe. Even teh grandaddy of them all -- Marbury v. Madison. Precedent should not be jettisoned lightly or for transient political reasons. But it is proper.

After all, the reexamination of principles and opinions is a healthy process for an individual. It is no less so for society as a whole. And sometimes such reexamination leads to bright shining moments in the lives of individuals and or nations.

Interesting comments on the hearings at Jawa Report. Related reflections at Blogs for Bush.

Posted by: Greg at 11:45 PM | Comments (1) | Add Comment
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