Roberts hearings are all about abortion

WASHINGTON — In our lifetime, has there been a more politically poisonous Supreme Court decision than Roe v. Wade? Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the Republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.

The corruption continues 32 years later. You could see it played out hour by hour in the Senate confirmation hearings of Judge John Roberts. Question upon question that pretended to be about high constitutional principle was really about abortion in ill-concealed disguise.

Senators asked gravely about how deeply Roberts believes in upholding precedent. Do you think that any of the Democrats was concerned whether Roberts would uphold Richmond v. Croson, the precedent that outlawed racial quotas in municipal contracting? Or Boy Scouts v. Dale, which permitted the exclusion of gay Scout leaders?

This is all about Roe. Take the lines of interrogation about Roberts' belief in the right to privacy. They are not asking about search and seizure in your home. They are asking about the "right to choose" (a brilliant locution that expunges the ugly word abortion from all political debate about abortion) — what Roberts in 1981 correctly termed the "so-called 'right to privacy,' " a skepticism he is now required to disavow.

Why? Because everyone knows what happened to Robert Bork when he forthrightly and honestly denied some kind of separate newly hatched right to privacy.

And then there are the learned Judiciary Committee disquisitions on "originalism" — the judicial philosophy by which Justices Scalia and Thomas try to anchor the Constitution in something real, i.e., the meaning of the words as intended and understood at the time they were written.

Originalism is itself highly problematic, the worst judicial philosophy except for all the others, because they permit unmoored and arbitrary constitutional interpretation — and thus unmoored and arbitrary judicial power. The learned senators, however, really don't care much about originalism, except to the extent that it would, almost by definition, make Roberts a categorical opponent of Roe. Which is why Roberts denies that he has any ideology, any "overarching judicial philosophy," and is nothing more than an ad hoc, bottom-up type of guy.