We don't yet know the answer to that question.
This is from his Senate hearing to be confirmed to the D.C. Circuit Court in April of 2003.
SENATOR RICHARD DURBIN:
"So, in 1991, you are in the Solicitor General's Office, and
in Rust v. Sullivan, you end up signing on to a brief which
calls for overturning Roe v. Wade, one of the more
controversial Supreme Court cases of my lifetime. When we asked
repeatedly in questions of you what your position is on Roe v.
Wade, you have basically danced away and said, "No, no, my
personal views mean nothing. I am just going to apply the
"This, in my mind, is evasive. I need to hear something more
definitive from you. Was the statement in that brief an
expression of your personal and legal feelings about Roe v.
Wade, that it should be repealed? What is your position today, in terms of that decision?"
"The statement in the brief was my position as
an advocate for a client. We were defending a Health and Human
Services program in which the allegation was that the
regulations issued by the Department of Health and Human
Services burdened the constitutional right to an abortion
recognized in Roe v. Wade."
"At that time, it was the position of the administration,
articulated in four different briefs filed with the Supreme
Court, briefs that I hadn't worked on, that Roe v. Wade should
"Now, if Roe v. Wade were to be overturned, the challenge to
the regulations that we were tasked with defending would fail,
and so it was appropriate in that case to include that
argument. I think it was all of one or two sentences. The bulk
of the brief was addressed to why the regulations were valid,
in any event."
"But since that was the administration position, and the
administration was my client, I reiterated that position in the
brief because it was my responsibility to defend that HHS
"Understood. I have been an attorney,
represented a client, sometimes argued a position that I did
not necessarily buy, personally. And so I am asking you today
what is your position on Roe v. Wade?"
"I don't--Roe v. Wade is the settled law of the
land. It is not--it's a little more than settled. It was
reaffirmed in the face of a challenge that it should be
overruled in the Casey decision. Accordingly, it's the settled
law of the land. There's nothing in my personal views that
would prevent me from fully and faithfully applying that
precedent, as well as Casey."
"Then, let me ask you this question. You
make a painful analogy, from my point of view, when you suggest
that calling for the overturn of Roe v. Wade was not any
different than the Government calling for overturning Plessy v.
Ferguson and Brown v. Board of Education. Plessy v. Ferguson,
separate, but equal, was really the basis for racial
discrimination and segregation in America for decades. I hope that that is just a strict legal analogy and does
not reflect your opinion of Roe v. Wade policy compared to Plessy v. Ferguson policy."
"Senator, the question I was asked, were there
other occasions in which the Department--if I am remembering
correctly--if there were other occasions in which the Solicitor
General had urged that a Supreme Court precedent be overturned,
and that is just--Brown v. Board of Education is the most
prominent one. The answer wasn't meant to draw a particular
"And I will not push any further because I
was hoping that is what your response would be."
SENATOR CHARLER SCHUMERr:
"All right. How about Roe v. Wade?"
"Roe v. Wade is an interpretation of the
Court's prior precedents. You can read the opinion beginning
not just with Griswold, which is the case everybody begins
with, but going even further back in other areas involving the
right to privacy, Meyer v. Nebraska, pierce v. Society of
Sisters, cases involving education. And what the Court
explained in that case was the basis for the recognition of
"Now, that case and these others--certainly Brown was
subjected to criticism at the time as an example of judicial
activism. Miranda was as well. But, again, all I can do as a
nominee is look to the rationale that the Supreme Court has
SENATOR SCHUMER: "So you don't think Roe v. Wade was
judicial activism as you defined it in your..."
"The Court explained in its opinion the legal
basis, and because the Court has done that, I don't think it's
appropriate for me to criticize it as judicial activism. The
dissent certainly thought it was and explained why, but the
Court has explained what it saw as the constitutional basis for
its decision. My definition of judicial activism is when the Court
departs from applying the rule of law and undertakes
legislative or executive decisions. Now..."
"Well, can you--since you seem to make the
argument if the Court rules that it is not judicial activism,
that would not be true of many people who write and comment and
everything else, can you give me a Supreme Court case that you
think was judicial activism?"
"Senator, again, you are sort of getting back
into the area where following Justice Ginsburg's...."
Senator Schumer. "Getting back into the area of a hard
question, that is all."
"No. With respect, Senator, you're getting back
in the area of asking me to criticize particular Supreme Court
It goes on from there, but they don't bet back the subject of privacy. I will add more later.