Busted: Fr. Gregory A. Kalscheur, SJ

A Constitutional Law professor discusses the nomination and confirmation hearings of

BustedHalo: You mentioned Roe v Wade earlier which is clearly a rallying cry for both sides of the abortion debate. Some people seem to believe that once President Bush has appointed enough judges Roe v. Wade will be overturned and the abortion debate will be setteld. What are your thoughts on that?

Fr. Greg Kalscheur, SJ:
Well it’s hard to predict and that goes with the line of thinking that you can easily predict what a justice will do once they’re on the Supreme Court. There have been opportunities to appoint justices by Republican presidents, during the Reagan administration and first Bush administration and now this administration and they have not been particularly successful in predicting how justices will vote on the abortion issue.

So to think that if I vote for George Bush that means we will have Supreme Court justices that will vote to overturn Roe is a difficult argument to make. I think most people would have expected Justices O’Connor, Kennedy, and Souter to vote to overturn Roe and that hasn’t been the case with any of those justices appointed by Republicans.

BH: Is that because, as some conservatives have claimed, that once they get onto the court the justices are tainted by elitist opinion? Or do you think there are other reasons behind it?

“To think that voting for George Bush means that we will have Supreme Court justices that will vote to overturn Roe is a difficult argument to make.”

GK: Well the reasoning given by O’Connor, Kennedy, and Souter in their joint opinion in their ruling in Planned Parenthood v. Casey which reaffirmed the essential holding of Roe while allowing states to regulate, somewhat, more abortion decisions. Their opinion in that case was based on respect for precedent. I think there are other values at stake in the legal system other than getting things right as an original matter.

You heard Roberts talk about this in his confirmation hearings. He talked about the disruption to predictability and stability in the legal system when precedents are overruled. Now that doesn’t mean precedents should never be overruled. In thinking about the role of precedent in constitutional issues, justices have to take into account how wrong was the original decision, how disruptive is overruling the original decision. It may be that a justice could credibly say that Roe is so wrong that it is important to overrule it to get things right and move forward. That wasn’t the approach taken by Souter, O’Connor, and Kennedy in Casey, and I don’t think you can predict in the absence of having obtained a promise what a justice is going to do. I think it would be inappropriate to seek a promise.

It’s about appointing people to the court who are confirmable. Presidents haven’t placed an absolute priority on trying to discern what their views on Roe v. Wade are.

BH: If Judge Roberts is confirmed won’t there be an unprecedented number of Catholics on the Court?

GK: Yes. There have obviously been three [Catholics] for the last few years. I think it’s correct to say until you had Scalia, Kennedy, and Thomas all serving at the same time, there was never more than one at a time.

BH: Who was the first Catholic?

GK: I think it was Roger Taney (1777-1864). He was chief justice after John Marshall. [Marshall is considered the principal founder of American Constitutional law-ed] Taney is not one of the brilliant figures in the history of the court. He is the author of the Dred Scott opinion that basically held that free African Americans, descendents from slaves, could not be citizens of the United States and that Congress could not have power to regulate slavery in the territories. That decision was a key factor in igniting the Civil War.

BH: Any thoughts on who President Bush will appoint to succeed Justice O’Connor?

GK: I have no idea. It’s a difficult task to find a nominee. The confirmation process will be incredibly contentious. They need to find somebody who can at least approximate Roberts’ intellectual skills. He set a very high standard for answering their questions and did it in a way that was very skillful without becoming frustrated or angry. I think it’s a very difficult situation for the President to be in; he’ll have to be attentive to that need in deciding who he will nominate. I also think the Democrats will be more much more aggressive since the swing vote is up for grabs.