Alito And Roe

During yesterday's Senate confirmation hearings, Sam Alito was criticized by Sen. Chuck Schumer for refusing to explicity state that Roe v. Wade was "settled" law. He was able to freely talk of "one man one vote", or Brown vs. Board of Education as settled, but would not do so with Roe. Alito's rationale was that he refused to comment on precedents involving cases that might come before him. Of course the Democratic Senators were surprised, and appalled.

But Alito is right; Roe remains unsettled. What else explains the amount of time devoted to this single case during the confirmation hearings? Does "settled law" create this amount of contention both within the Senate, as well as among the voting public?

One of the many reasons that Roe remains unsettled is that it may have been poorly decided. Here's an article that touches on Roe's shaky legal underpinnings:

"For nearly two centuries, the courts had no inkling that abortion was protected by the framers. When the Supreme Court finally discovered the oversight, it didn't get there by applying clear principles or solid precedents, as it usually does in expanding protections. Instead, it took the right of privacy, which is implicitly upheld in various provisions of the Bill of Rights, and stretched it beyond recognition.

The result was like building a skyscraper on a foundation designed for a log cabin. Roe was shaky on Day One and has been shaky ever since. All Alito did in 1985 was point out that the moon is not, in fact, made of green cheese. To hold that against him brings to mind journalist Michael Kinsley's famous comment that in Washington, a gaffe is not when a politician tells a lie, but when he tells the truth."