CQ TODAY ONLINE NEWS
– LEGAL AFFAIRS
May 29, 2009 – 4:24 p.m.
Sotomayor Not Likely To Reveal Much About Abortion Rights
By Keith Perine, CQ Staff
Abortion rights supporters and opponents alike are worried there are not enough clues in Sonia Sotomayor’s background to determine how she would vote on the question as a Supreme Court justice — and they are calling on the Senate to solve the mystery.
But Sotomayor, President Obama’s nomination to become a Supreme Court justice, is not likely to tip her hand, either in private meetings with lawmakers beginning June 2 or at her Senate Judiciary Committee confirmation hearing this summer.
The seesawing balance on the high court around its seminal 1973 decision in Roe v. Wade has made abortion a major topic at every Supreme Court confirmation hearing since Sandra Day O’Connor appeared before the committee in 1981.
But like other nominees before her, Sotomayor could employ several strategies to avoid giving a direct answer to a particular question that would reveal whether she would vote to overturn Roe, or even substantially restrict abortion rights. It will be easy for her to avoid revealing too much in part because her inquisitors, mindful that they can’t be seen as trying to extract any pledges from Sotomayor, probably will ask only indirect questions about settled law and privacy rights.
In his 2004 book, Seeking Justices: The Judging of Supreme Court Nominees, Penn State Fayette associate political science professor Michael Comiskey observed that limits on the scope of nominees’ testimony are seen by some as necessary to“avoid prejudging issues and preserve the independence and impartiality required of judges.”
O’Connor drew such a line in her opening statement, telling the committee “I do not believe that as a nominee I can tell you how I might vote on a particular issue which may come before the court, or endorse or criticize specific Supreme Court decisions presenting issues which may well come before the court again. To do so would mean that I have prejudged the matter or have morally committed myself to a certain position.”
Under questioning, O’Connor testified that she was opposed to abortion as a form of birth control. She also said it was an “appropriate role for the Congress” to weigh in on abortion rights. But she refused to be pinned down on how she would rule on the question as a justice.
At his 1986 confirmation hearing, Antonin Scalia was pressed by Joseph R. Biden Jr. , D-Del. (1973-2009), about whether the Constitution includes a right to privacy — one of the underpinnings of Roe.
But Scalia shied away from a direct answer, telling Biden, “I do not want to be put in the position [as a justice] of having to tell you, you know, I’m sorry, I believe in the right of privacy, because I told the committee, in connection with considering my nomination, that I believe in it.”
Even Robert H. Bork — whose 1987 confirmation hearing has become the textbook case on the danger of being too forthright under questioning — was circumspect about Roe, even though he was on record as calling the decision unconstitutional.
Bork stuck to his position during his hearing, but said that did not mean he would necessarily vote to overturn Roe.
Later that year, Biden confronted nominee Anthony M. Kennedy with a newspaper account that quoted North Carolina Republican Sen. Jesse Helms (1973-2003) recounting a private meeting with Kennedy in which Kennedy allegedly expressed admiration for Helms’ opposition to abortion rights.
Kennedy told Biden that if he had an “undisclosed intention, or a fixed view on a particular case...perhaps I might be obligated to disclose that to you.” But, Kennedy said that was not the case regarding abortion rights. “It would be highly improper for a judge to allow his, or her, own personal or religious views to enter into a decision respecting a constitutional matter,” Kennedy said.
In 1991, Clarence Thomas told Vermont Democrat Patrick J. Leahy that he had never discussed Roe at Yale Law School, where he was a student when Roe was handed down.
By contrast, Ruth Bader Ginsburg and Stephen G. Breyer were both seen as supportive of abortion rights when they appeared before the committee in 1993 and 1994, respectively, and they did nothing to dispel that notion.
Ginsburg said, “it is essential to woman’s equality with man that she be the decision maker [regarding abortion], that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”
Breyer testified that “Roe v. Wade is the law of this country, at least for more than 20 years, that there is some kind of basic right...recently, the Supreme Court has reaffirmed that right in Casey v. Planned Parenthood. So in my opinion, that is settled law.”
The last two nominees to join the court both had more of a paper trail on abortion than Sotomayor does. But both John G. Roberts Jr. and Samuel A. Alito Jr. were able to avoid taking a firm position on how they would treat the issue on the Supreme Court.
Roberts testified at his 2005 hearing that “the responsibility of a judge confronting this issue is to decide the case according to the rule of law consistent with the precedents.” Alito said at his 2006 hearing that he “would approach the question with an open mind.”
But activists on both sides say that Sotomayor should have to be more specific.
“We believe it is critical that senators thoroughly explore whether Judge Sotomayor believes that Supreme Court justices have the right to override the decisions of elected lawmakers on such issues as partial-birth abortion, tax funding of abortion, and parental notification for abortion,” said Douglas Johnson, legislative director of the National Right to Life Committee.
Nancy Northup, president of the Center for Reproductive Rights, said, “we encourage the Senate Judiciary Committee to engage Judge Sotomayor and any future nominees to the Court on their commitment to the principles of Roe v. Wade.”
But as past nominees have demonstrated, Sotomayor is likely not to reveal too much — and the Senate is likely to confirm her, anyway.
Seth Stern contributed to this story.
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