In reporting on the judicial record of Supreme Court nominee Judge John G. Roberts Jr., Time, Newsweek, and U.S. News & World Report misconstrued Roberts's pledge during his 2003 appellate court confirmation hearing to "fully and faithfully apply" Roe v. Wade as the "settled law of the land" as an indication of whether he would vote to uphold the landmark 1973 abortion-rights decision if confirmed to the Supreme Court. In fact, Roberts's description of Roe as "settled law" in the context of an appellate court nomination indicates nothing about either his personal views on abortion or whether he would vote to uphold Roe if confirmed to the high court. As an appellate judge, Roberts must uphold the law and adhere to Supreme Court precedent or face the threat of reversal; his description of Roe as "settled law" merely amounted to a pledge to do his job. But as a Supreme Court justice, Roberts would be free to reconsider and overturn prior Supreme Court rulings, including Roe.
The August 1 Time featured a profile of Roberts by senior editor Nancy Gibbs, who noted that those searching through Roberts's record will have "a tough time finding an ideology." As an example of Roberts's ability to "argue all sides of any issue," Gibbs offered the supposed contrast between a 1990 legal brief Roberts wrote on behalf of the first Bush administration that advocated overturning Roe, and Roberts's pledge to uphold Roe as "settled law" at his 2003 confirmation hearing for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. This is a false contrast; Roberts's 2003 comment was not an argument for or against the Supreme Court upholding Roe.
From Gibbs's article:
That's why those poring over the Roberts record will have such a tough time finding an ideology. Law professors can afford to offer grand theories; practicing lawyers want to win. The very best players -- and Roberts is unquestionably one -- can argue all sides of any issue, because that is what they get paid to do. So all the selective readings of his case file obscured the point that he argued for and against affirmative action, for and against environmental regulations, argued that Roe v. Wade should be overturned when he was representing a Republican President and then described it as settled law when he was speaking as a nominee to become an appellate judge.
A second Time article focusing specifically on Roberts's positions on various controversial issues again suggested falsely that his 2003 pledge to uphold the "settled law of the land" conflicted with his 1990 argument in favor of the Supreme Court reversing Roe:
During Senate confirmation hearings in 2003, Roberts stressed that he had no personal issue with applying the precedent of Roe v. Wade, which he called "the settled law of the land." But during his stint as Principal Deputy Solicitor General from 1989 to 1993, Roberts co-authored briefs in two controversial Supreme Court cases, one that upheld federal rules prohibiting clinics that received federal dollars from even discussing abortions and another that helped to successfully defend pro-life protesters who had blocked entry to abortion clinics against charges that they had thereby violated the rights of women.
An August 1 U.S. News article on the political ramifications of the Roberts nomination used the same faulty comparison to note Roberts's "ambiguous" abortion record:
Roberts's record on abortion, however, appears somewhat ambiguous. In a 1991* brief for the first Bush administration, he wrote that Roe v. Wade was "wrongly decided and should be overruled." But in his 2003 appeals court confirmation hearing, Roberts said the brief was written in his role as "an advocate for a client," adding that he believed the legal right to abortion "is the settled law of the land . . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
Newsweek national correspondent and deputy Washington bureau chief Debra Rosenberg similarly misconstrued Roberts's 2003 statement in a July 20 "Web Exclusive" article on the nominee's record and qualifications:
One certain area of controversy: abortion rights. There are still five votes to uphold Roe v. Wade even without O'Connor on the court -- Justice Anthony Kennedy and four liberal justices have supported it. But Kennedy has been willing to impose more restrictions on abortion. If Roberts follows suit, procedures like so-called partial-birth abortion could be banned and measures like parental notification tightened. In a footnote to a 1990 government brief, Roberts once argued that Roe should be overturned. But during his 2003 confirmation hearings, he said it was "settled law."
Time, U.S. News, and Newsweek join numerous other media outlets in misconstruing Roberts's "settled law" pledge as a position statement on abortion rights.
* The brief was submitted in September 1990 in the case Rust v. Sullivan, which was argued before the Supreme Court on October 30, 1990. The court handed down a decision in the case in May 1991.