Won't Get Fooled Again?

I've read some statements in the media that Democrats should back off of Roberts now that he endorsed a right to privacy and embraced a strong principle of stare decisis. (Personally, I believe he only did that in order to get Specter's vote, and ensuring that his nomination would not go to the Senate floor with a 9-9 vote). But it's important for Democrats to be skeptical, if history is any guide. All they need to do is look at the perjurious statements Clarence Thomas made before the Judiciary Committee in 1991, well before Anita Hill ever showed her face.

Of course, there is the laughable claim by Thomas that he never discussed the Roe v. Wade decision with anyone in law school, even though the decision was issued while he was a student at Yale Law School. (That statement was either an outright lie, or, if true, should have immediately disqualified him for serving on the Court). But then there were these statements which should give Democrats pause in light of Roberts' testimony:

SENATOR BIDEN: Does the Fourteenth Amendment protect the right of women to
decide for themselves in certain instances whether or not to terminate
pregnancy?

JUDGE THOMAS: My view is that there is a right to privacy in the
Fourteenth Amendment.

BIDEN: Well, does that right to privacy protect the right of a woman to
decide for herself in
certain instances whether or not to terminate a pregnancy?

THOMAS: The Supreme Court has made clear that the issue of marital privacy
is protected, and in the case of Roe v. Wade has found an interest in the
woman’s right to terminate a pregnancy. I do not think that at this time that I
could maintain my impartiality as a member of the judiciary and comment on that
specific case.

BIDEN: [What about your] natural law philosophy [expressed during your
tenure in the Reagan Administration]?

THOMAS: What I was looking for were unifying themes in a political
standpoint, not a constitutional adjudication standpoint.

and

SENATOR THURMOND: Would you please briefly state your general view of stare
decisis [upholding a previous court’s ruling based on precedent] and under what
circumstances you would consider it appropriate to overrule a prior procedure?

JUDGE THOMAS: I think overruling a case or reconsidering a case is a very
serious matter. Certainly, you would have to be of the view that a case is
incorrectly decided, but I think even that is not adequate. There are some cases
that you may not agree with that should not be overruled. Stare decisis provides
continuity to our system, it provides predictability, and in our process of
case-by-case decision-making, I think it is a very important and critical
concept. A judge that wants to reconsider a case and certainly one who wants to
overrule a case has the burden of demonstrating that not only is the case
indirect, but that it would be appropriate, in view of stare decisis, to make
that additional step of overruling that case.

Source: Senate Confirmation Hearings Sep 10, 1991

And, of course, nine months later, on June 29, 1992, after making these strong pronouncements, then-Justice Thomas joined Rehnquist's dissent in Casey, which stated that Roe was wrongly decided and should be overruled. And then, in Lawrence v. Kansas in 2003, Thomas wrote this in dissent:

"And just like Justice Stewart, I "can find [neither in the Bill of Rights nor
any other part of the Constitution a] general right of privacy," ' quoting
Potter Stewart's dissent in the Griswold case."

Something to keep in mind in evaluating Roberts' statements this week.
- posted by Joshua @ 12:44 PM