WASHINGTON — Abortion remains the unbridgeable divide in American politics and constitutional law, a fact that was on display during the third day of Senate hearings on the nomination of Judge Samuel A. Alito Jr. to the Supreme Court.
For much of the day Wednesday, Alito -- who would probably cast the deciding vote on several pending abortion cases -- was a silent witness as senators told him why the Supreme Court should preserve or reverse its abortion rulings.
The debate turned on whether the right to abortion was "settled law." Abortion has been legal since the court's Roe vs. Wade decision of 1973, and has been upheld several times. Is that long enough to make it settled law, or precedent? And when can precedents be overturned?
The correct answer was in the eyes of the beholder.
Sen. Sam Brownback (R-Kan.) compared Roe vs. Wade to the most condemned rulings of the 20th century, decisions that have been repudiated. He cited the 1927 decision in Buck vs. Bell, which upheld the forced sterilization of women who were deemed mentally deficient, and the 1944 ruling in Korematsu vs. United States that upheld the mass detention of Japanese Americans during World War II.
Brownback also noted that the court's 1896 Plessy vs. Ferguson ruling that upheld forced racial segregation remained as a precedent for twice as long as Roe vs. Wade has been on the books.
Alito agreed. The Supreme Court was "spectacularly wrong" when it upheld segregation, he said.
The sterilization ruling is best remembered for Justice Oliver Wendell Holmes' offhand comment that "three generations of imbeciles are enough." Yes, Alito agreed again. The decision "is repugnant to the traditions of our country," he said.
Brownback had made his point: Precedent, even a "settled precedent" of the Supreme Court, is not always a good thing. "There are places where the court gets it wrong, and hopefully they will continue to be willing to revisit it," the Kansas senator told Alito.
Two years ago, the court overturned precedents rejecting a right to gay sex and allowing the death penalty for minors.
The high court has never agreed on a clear rule for when precedents should be overturned.
Earlier, Sen. Richard J. Durbin (D-Ill.) had almost pleaded with Alito to accept the fact that Roe vs. Wade was settled as the law, too late for reversal.
