THE SCOTSMAN'S FLIER:

The Specter of Superprecedents: The Judiciary Committee chairman's super bad idea. (Terry Eastland, 09/05/2005, Weekly Standard)

SOMETHING TO LISTEN FOR DURING the Roberts confirmation hearings is an uncommon word, "superprecedent." Sen. Arlen Specter, chairman of the Judiciary Committee, used "superprecedent" in a July 24 op-ed in the New York Times previewing the hearings, which are scheduled to begin September 6. Specter began by noting that Sandra Day O'Connor, whom Roberts would succeed, was the decisive vote in many 5-to-4 decisions "on the cutting edge of issues confronting our society," none more important than Roe v. Wade, "the central issue."

Specter wrote that while some senators have announced their intention to ask Roberts whether he would overrule the landmark abortion case, the nominee could "answer [that question] or not as he sees fit." Specter invoked "confirmation precedents" to support the proposition that a nominee need not "spell out how he or she would rule on a specific case," but he emphasized that nothing forecloses "probing inquiries on the nominee's general views on jurisprudence," not least on "how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision." Then came the unusual word: "Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases."

Can we overturn the superprecedents that themselves overturned superprecedents of far longer standing in Judeo-Christian tradition and Anglo-American jurisprudence?

Posted by Orrin Judd at September 10, 2005 8:02 PM