Donald Lambro

WASHINGTON -- Democrats tried to end a sacrosanct judicial tradition in last week's confirmation hearings when they asked Judge Samuel Alito to rule out the possibility of reconsidering a past decision by the Supreme Court. In other words, to say how he would vote in a future case.

Are they kidding?

Stripped of all their sanctimonious mumbo-jumbo, that's what Senate Judiciary Committee Democrats were demanding Alito do on the question of Roe v. Wade, the landmark case that helped make abortions legal.

Supreme Court nominee, now chief justice, John G. Roberts Jr., had declared in his confirmation proceedings that he considered Roe v. Wade to be "settled law," explaining that it had been reaffirmed so many times by the courts that it was a legal precedent that demanded hallowed respect in future court cases.

But Alito was not willing to say that, though he, too, agreed with Justice Roberts that it was "an important precedent" in jurisprudence that in Alito's words was "protected." That, however, wasn't enough for the committee's liberals, like Sen. Richard J. Durbin of Illinois and Sen. Edward Kennedy of Massachusetts.

They wanted Alito to go much further than that, maybe even further than Roberts, to say that under no circumstances could that case be revisited by the court with an open mind in an entirely different case that could raise new and very legitimate issues.

When Durbin pressed him to declare that the ruling was "the settled law of the land," Alito resisted because that raised disturbing legal implications in future cases brought before the high court.

"If 'settled' means that it can't be examined, 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," Alito responded. The Latin term stare decisis is a legal principle that means "to stand by that which is decided."

Actually, Alito's position was not that different from the position Roberts staked out. What the chief justice meant by "settled law" is that it was settled only in terms of the legal precedent that it set in law -- not that it was an inviolable decision the court could never re-examine under any and all circumstances.

Roberts, like Alito, was equally reluctant to tell the committee how he would vote on the issue or to give any indication what his leanings may be in some unknown future case. He, too, pointed to the doctrine of stare decisis that was now part of the sturdy legal structure surrounding Roe, but he also said he believed the ruling to be "settled law."


Donald Lambro

Donald Lambro is chief political correspondent for The Washington Times.