Gorsuch 

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When he ran for President, Donald Trump promised to appoint justices to the Supreme Court who would “overturn Roe v. Wade.”

At Tuesday’s Senate confirmation hearing, however, Judge Neil Gorsuch revealed that Donald Trump had not asked him to overrule Roe v. Wade.  ”That is not what judges do,” Gorsuch said.  

In other opportunities at the hearing, Gorsuch declined to defend the right to life of unborn children.  Rather, said Gorsuch, Roe v. Wade was “precedent” that has been “reaffirmed.”

SENATOR LINDSEY GRAHAM:  In that interview, did he [Trump] ever ask you to overrule Roe. v. Wade?

JUDGE NEIL GORSUCH:  No, Senator.

GRAHAM:  What would you have done, if he had asked?

GORSUCH:  Senator, I would have walked out the door.  That is not what judges do.

SENATOR CHUCK GRASSLEY:  Can you tell me whether Roe was decided correctly?

JUDGE NEIL GORSUCH:  Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court.  It has been reaffirmed. “Reliance interest” considerations are important there.   

GORSUCH: For a judge, precedent is a very important thing.  We don’t go reinvent the wheel every day. And that’s the equivalent point of the law of precedent.  We have an entire law about precedent, the law of judicial precedent. We have precedent about precedent, if you will. 

And that’s what [my] 800-page book is about.  It expresses a mainstream, consensus view of twelve judges from around the country, appointed by, as you point out, presidents of both parties.  Great minds.  Justice Breyer was kind enough to write a forward to it.  

And in it, we talk about factors that go into analizing precedent. Many considerations about precedent.  There are many of them.  You alluded to some of them.  The age of the precedent–a very important factor.  The “reliance interests” that have built up around the precedent.  Has it been reaffirmed over the years?  What about the doctrine around it?  Has it built up, shored up?  Or has it become an island, as you point out?  These are all relevant considerations.  Its workability is a consideration, too.  Is it practical–can people figure out how to abide it?  Or is it just too confusing for the lower courts and their administration?

Those are all factors that a good judge will take into consideration when examining any precedent.  You start with a heavy, heavy presumption in favor of precedent.

SENATOR DIANNE FEINSTEIN:  Since we’re on Roe–I wasn’t going to begin with this, but I well recall the time we spent in my office, and we talked about precedent.  And in my opening remarks, I indicated that if anything had super-precedent, Roe did, in terms of the numbers, and I’ve put that in the record.

Here is why it becomes of concern.  The President said that he would appoint someone who would overturn Roe.  You pointed out to me that you view precedent in a serious way, in that it added stability to the law.  Could you elaborate on the point that you made in my office on that?

JUDGE NEIL GORSUCH:  I would be delighted to, Senator.  Part of the value of precedent–it has lots of value.  It has value in and of itself, because its our history, and our history has value intrinsically.  But it also has an instrumental value, in this sense: it adds to the determinacy of law. . . .

Once a case is settled, that adds to the determinacy of the law.  What was once a hotly-contested issue is no longer a hotly-contested issue.  We move forward. . . .

FEINSTEIN:  Do you view Roe as having super-precedent?

GORSUCH: It has been reaffirmed many times.