Would Sotomayor overturn Roe?

posted at 2:55 pm on May 28, 2009 by Ed Morrissey

When President Obama first selected Sonia Sotomayor as his choice to replace David Souter on the Supreme Court, a few conservatives wondered if Obama might not get his own version of Souter — a judicial appointment who went in the opposite direction than presumed.  That seemed like wishful thinking for conservatives with almost no power to deflect her confirmation, but the New York Times says the notion has appeared on the Left as a concern.  Given her lack of a track record, some of the people who first cheered the nomination now want some guarantees that Sotomayor will uphold Roe:

In nearly 11 years as a federal appeals court judge, President Obama’s choice for the Supreme Court, Sonia Sotomayor, has never directly ruled on whether the Constitution protects a woman’s right to an abortion. But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents.

Now, some abortion rights advocates are quietly expressing unease that Judge Sotomayor may not be a reliable vote to uphold Roe v. Wade, the landmark 1973 abortion rights decision. In a letter, Nancy Keenan, president of Naral Pro-Choice America, urged supporters to press senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote.

“Discussion about Roe v. Wade will — and must — be part of this nomination process,” Ms. Keenan wrote. “As you know, choice hangs in the balance on the Supreme Court as the last two major choice-related cases were decided by a 5-to-4 margin.”

The White House press corps has already questioned Robert Gibbs on this point, and he issued a standard disclaimer that Obama didn’t ask her about specific issues, the traditional position of every modern president on Supreme Court nominations.  The act of demanding a litmus test on any particular issue is seen as an inappropriate attempt to prejudice a judge, which makes for an interesting Kabuki dance during confirmations.  Senators on both sides almost weep with desire to ask the abortion questions, but know it would look bad to do so.  Instead, pro-abortion Senators ask about stare decisis, and pro-life Senators ask about judicial restraint and correcting past mistakes, such as Plessy.

I’d put the odds on this as low, although it is interesting to note that Sotomayor will become the court’s sixth Catholic.  I recall when Democrats had a problem with Catholics on the court; I wonder whether they’ll be talking about it now.  Some of their special-interest support group base apparently will.

Growth on the Supreme Court goes in one direction, and for a good reason.  When I joined a group of bloggers for dinner with Clarence Thomas, I asked the Justice why his colleagues “grow” towards the more liberal side in the passage of time.  Justice Thomas would only speak in general terms, but he told us that peer pressure was the main culprit.  Justices who stick with conservative views on Constitutional interpretation and judicial restraint don’t get invitations to speak at law-school commencements or top-flight cocktail parties, and after a while, that isolation wears on some people.  Somehow, I don’t see that acting on Sotomayor to pressure her in a direction that will lead to a reversal of Roe.

Still, any Supreme Court nominee is like a box of chocolates … that lasts a lifetime.  You never know what you’ve got until you try one, and by then, it’s too late.


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No. So why are we discussing it?

zeebeach on May 28, 2009 at 2:57 PM

she’s a leftist nut, these people hate life so of course she’s pro-Roe

jp on May 28, 2009 at 2:59 PM

even though she’s a lapsed apostate catholic, I’ll say it: there are too many catholics on the court, not representive of the population…but then thats not a criteria under Affirmative action

jp on May 28, 2009 at 3:01 PM

But imagine for a moment… wouldn’t it just be hilarious?

D2Boston on May 28, 2009 at 3:02 PM

Justices who stick with conservative views on Constitutional interpretation and judicial restraint don’t get invitations to speak at law-school commencements or top-flight cocktail parties, and after a while, that isolation wears on some people.

They don’t get fawning, ego-stroking coverage about “growth” from WaPo’s reporters or from the NYTimes’ Linda Greenhouse. Drifting left is sometimes referred to as the Greenhouse Effect.

Wethal on May 28, 2009 at 3:03 PM

But imagine for a moment… wouldn’t it just be hilarious?

D2Boston on May 28, 2009 at 3:02 PM

No, this is hilarious.

Justice Thomas would only speak in general terms, but he told us that peer pressure was the main culprit.

Makes you wonder whether it’s all worth saving.

JiangxiDad on May 28, 2009 at 3:04 PM

No, she would not. Come on, Ed, the “some far-left extremists are worried about Sotomayor” meme is classic reverse psychology designed to make her look less like the far left extremist that she is. Why are we on the right always so willing to get played? Why? (I throw my hands to the sky in despair).

Rational Thought on May 28, 2009 at 3:04 PM

The pro-choice nags would still endorse Obama next time, so it doesn’t really matter.

Speedwagon82 on May 28, 2009 at 3:05 PM

There have been ample opportunities, over the years, for roe v wade to be overturned, and it’s not happened. I don’t see it happening now.

As for Ms.Sotomayor being catholic? So what. Does the fact that Pelosi, Biden, or the Kennedys stop them from asserting their beliefs, over Catholic doctrine? Nope! Ms. Sotomayor will be no different. If she is, I’ll be the first to admit I was wrong.

capejasmine on May 28, 2009 at 3:07 PM

In Casey, Sandra Day O’Conner did comment that Roe was on a collision course with itself, as the trimester analysis was based on 1973 obstetrics. Viability was set at six months because back then preemies couldn’t survive, given the state of medicine, if born before six months. Blackmun went to the Mayo Clinic library for research.

I’d like to see Sotomayor asked if constitutional law should be based on 1973 medical texts.

Wethal on May 28, 2009 at 3:08 PM

Would Sotomayor overturn Roe?

A Ronald Reagan moment?

“With so much sotomanure around, there must be a sotopony around some place!”.

Somehow I don’t think that anyone should be shopping for a sotosaddle.

MB4 on May 28, 2009 at 3:08 PM

Well, just check what La Raza’s opinion on abortion is.

Looks pretty pro-abortion to me.

hawksruleva on May 28, 2009 at 3:08 PM

I like the ruling where the states can void the 2nd amendment because the Constitution only applies to the Federal Govt. Would she then also rule where states can void federal tax laws, federal race quotas, or any other unfunded federal mandates? Would a state be justified in overturning Roe because it only applies to the Federal Govt. I think not. Can I quote Joe Biden on Clarence Thomas…. The only reason she’s in there is because of her race. And race is what she will bring. Race will determine everything. The only question will be how much reparations she will be able to “more justly” recover for her preferred race. If Roe comes up….she’ll do what she’s told to do, that’s what she’ll do.

lm10001 on May 28, 2009 at 3:09 PM

No, she would not. She knows what side her bread is buttered on. Plus she hasn’t had the “rich experience” of being a mom.

echosyst on May 28, 2009 at 3:10 PM

Barry knows where is bread is buttered, and if he wants the mega donations again in 2012, so there is absolutely no, zilch, of a chance Sonia gets a rats rear about the sanctity of life.

She’s like a Barry; a “seamless garment” with no one alive to wear it.

Branch Rickey on May 28, 2009 at 3:11 PM

The real question is the next step after Roe….

Does she agree w/ the President that a mother should be able to terminate the life of the child in the event of a botched abortion. He voted for it 3 times. What’s her take on terminating a life at the behest of the mother?

lm10001 on May 28, 2009 at 3:11 PM

Andrew Wilkow brought this up on Tues. saying we whould let the left knock her out of the nomination with this subject.

thomasaur on May 28, 2009 at 3:11 PM

even though she’s a lapsed apostate catholic, I’ll say it: there are too many catholics on the court, not representive of the population…but then thats not a criteria under Affirmative action

jp on May 28, 2009 at 3:01 PM

I’m Catholic and could not agree more. Um five is enough. Yeah, um, five is quite enough.

Whatever it takes to keep her off the court ;p

Branch Rickey on May 28, 2009 at 3:12 PM

This is slightly off topic, but Drudge has a link to; “Sonia Sotomayor ‘La Raza member.”

Scary.

Star20 on May 28, 2009 at 3:12 PM

Just being more sympathetic to limits on abortion is a big get for us.

I’m liking her more everyday. She at least has potential for a conscience.

I know it is bad form but is she married? If not single or lesbian? Has she had children? Is her history active Catholic or nominal Catholic?

I think this is the best situation we could hope for.

And if I’m wrong it is no worse than her critics say now. She is at least not known for rabid pro-abortion views.

petunia on May 28, 2009 at 3:14 PM

This is slightly off topic, but Drudge has a link to; “Sonia Sotomayor ‘La Raza member.”

Scary.

Star20 on May 28, 2009 at 3:12 PM

So, she is a racist and has joined a racist organization. I see now why we should confirm her.

faraway on May 28, 2009 at 3:15 PM

Who Cares?!!

Wake up, climb outta bed, take a look around the world and around the halls of congress….
The USA has bigger problems to worry about than
Gay people and abortion!

bridgetown on May 28, 2009 at 3:15 PM

No, she would not. Come on, Ed, the “some far-left extremists are worried about Sotomayor” meme is classic reverse psychology designed to make her look less like the far left extremist that she is. Why are we on the right always so willing to get played? Why? (I throw my hands to the sky in despair).

Rational Thought on May 28, 2009 at 3:04 PM

Bingo! +10

I’d say abortion has to be the single biggest issue for the Left.

rbj on May 28, 2009 at 3:15 PM

lapsed apostate catholic

Does that mean her apostasy has lapsed?

People tend to get more religious as they get older.

petunia on May 28, 2009 at 3:16 PM

At this point there is no prediction on what she will meddle with or overturn. She is far too radical.

old trooper2 on May 28, 2009 at 3:17 PM

Nope – it’s a trick. Don’t fall it.

The left is using this “meme” as a way to encourage the right to hold out hope.

It’s pure and utter BS.

Those tricky lefty news sources…

tru2tx on May 28, 2009 at 3:17 PM

Well, just check what La Raza’s opinion on abortion is.

Looks pretty pro-abortion to me.

hawksruleva on May 28, 2009 at 3:08 PM

New drinking game here at Hot Air……………

………. follow the link and take a swig everytime you read the term “Chicana”.

Seven Percent Solution on May 28, 2009 at 3:18 PM

It’s too early for you to be drinking, Ed. And the left does not see her as a threat. The donks are giving out false information in order for conservatives to go easy on her. Those of you who think she is not a rabid abortion supporter are gullible.

Blake on May 28, 2009 at 3:18 PM

I’d like to see Sotomayor asked if constitutional law should be based on 1973 medical texts.

Wethal on May 28, 2009 at 3:08 PM

“Sotomayor – constitutional law – based”
all in the same sentence – ROFLMAO – that is a good one. The next time she bases something on the constitution; it will be the first time.

Branch Rickey on May 28, 2009 at 3:18 PM

echosyst on May 28, 2009 at 3:10 PM

— great minds think alike! :)

Branch Rickey on May 28, 2009 at 3:20 PM

It’s too early for you to be drinking, Ed. And the left does not see her as a threat. The donks are giving out false information in order for conservatives to go easy on her. Those of you who think she is not a rabid abortion supporter are gullible.

Blake on May 28, 2009 at 3:18 PM

I was voted most gullible in my high school class. I call it optimistic myself.

We can’t stop this thing anyway so why not speculate on her possibilities?

Besides, how do you know it isn’t people like me who have put doubt into the minds of the far left not the other way around? It is they who have something to worry about.

They have been waiting for this opportunity for a decade and now? Obama might have blown it! That is just great theatre!

petunia on May 28, 2009 at 3:23 PM

For pro-lifers, I suspect that this is a mirage and nothing but faux angst stirred up to demonstrate that Sotomayor paddles in the mainstream.

If it isn’t, I’d love to see Dem senators taking the heat, having to grill, and ultimately taking her nomination. A nice daydream, I confess.

BuckeyeSam on May 28, 2009 at 3:24 PM

I am more concerned about Heller and other 2nd amendment cases. That takes away one of the last checks in the system: armed citizens rising up against a government gone amok. Them Obama can have it all.

dpierson on May 28, 2009 at 3:27 PM

so she is a member of La Raza who wants to take several Southwestern states back to Mexico and seceed?

So Obama nominates a Judge associated with this group after we heard Palin was for Alaska seceeding during election

jp on May 28, 2009 at 3:27 PM

This is slightly off topic, but Drudge has a link to; “Sonia Sotomayor ‘La Raza member.”

Scary.

Star20 on May 28, 2009 at 3:12 PM

Well you Gringos can’t say I didn’t warm you, and for some time now, that you should be spending less time on Hotair and more time LEARNING SPANISH!

APRENDA EL ESPANOL!!!

Oh, you may also want to buy a new map just to be ready for a few years from now.

VinyFoxy on May 28, 2009 at 3:27 PM

I suppose anything is possible, but in short…NO. She is not going to overturn Roe. Fantasy is nice, but it is still fantasy.

Mr. Joe on May 28, 2009 at 3:34 PM

Well, all I know is, the lefty blogs are fighting amongst themselves over her. And I’m not talking about the lefty pro-Obama blogs; I’m speaking of the lefty anti-Obama blogs that are pro-Hillary and cannot stand Obama. They are predominantly made up of extreme liberal feminists and the talk on those blogs is that Obama cannot be trusted on abortion and this woman is a stealth pro-lifer.

They cite the fact that she doesn’t have any published opinion on this topic, as well as gay rights and the stem-cell issue. And apparently, because Sotomayor has used the term “anti-abortion” and not “pro-life”, this, to them is code that she’s sympathetic to the life issue.

Bottom line is he chose someone without much of a paper trail on this issue and I doubt we’ll learn anything about her personal opinion during the hearings. Since she’s going to be confirmed, it’s fun to muse about the potential for a big surprise to all of the pro-abortion folks out there.

yogi41 on May 28, 2009 at 3:40 PM

Don’t fall for this tripe. I thought there was some momentum building on our side to vote against this nominee but don’t it to be watered down.

promachus on May 28, 2009 at 3:41 PM

This is slightly off topic, but Drudge has a link to; “Sonia Sotomayor ‘La Raza member.”

Scary.

Star20 on May 28, 2009 at 3:12 PM

Well you Gringos can’t say I didn’t warm you, and for some time now, that you should be spending less time on Hotair and more time LEARNING SPANISH!

APRENDA EL ESPANOL!!!

Oh, you may also want to buy a new map just to be ready for a few years from now.

VinyFoxy on May 28, 2009 at 3:27 PM

Heh. If Mexico wants a rematch – Bring. It. On.

But if we win, we get the upper third of Mexico, too, so we can torch the entire area and put up a _proper_ border barrier (I refuse to call it a ‘fence’ anymore – we don’t need a ‘fence’, we need a flaming oil-filled moat and a 1 mile wide ‘no man’s land’ filled with landmines that stretches across the entire border).

Timothy S. Carlson on May 28, 2009 at 3:41 PM

LaRaza Sotomanure will be joyously, religiously pro-abortion, and radically in favor of Roe v. Wade.

It is ridiculous to think otherwise.

Jaibones on May 28, 2009 at 3:44 PM

Liberals are consistenly looney. You don’t see much diversity among them on the issues.

So this looney liberal is highly likely to be pro-abortion.

Yet, hope does spring eternal, and it would be sweet if she still harbors a twinge of Catholicism and common-sense in her harvardized brain.

notagool on May 28, 2009 at 3:45 PM

That woman has leftist hispanic feminist activist written all over her frumpy face.

keep the change on May 28, 2009 at 3:48 PM

it would be sweet if she still harbors a twinge of Catholicism

Since when are Catholics anti-abortion?

keep the change on May 28, 2009 at 3:49 PM

Bottom line is he chose someone without much of a paper trail on this issue and I doubt we’ll learn anything about her personal opinion during the hearings. Since she’s going to be confirmed, it’s fun to muse about the potential for a big surprise to all of the pro-abortion folks out there.

yogi41 on May 28, 2009 at 3:40 PM

I listened to Rush today, and he played a clip of Obama yesterday, talking about his choice in Sotomayor. This is not verbatim, but it’s close…. Obama: I want her confirmed, and I want her to walk walk up those big marble steps, and I want her to finally bring some justice.

Again, that’s not verbatim, but that’s the grist of what Obama said. Rush went on to say, she’s a mirror image of him, in their beliefs.

True or not, I don’t know, but I heard the clip for myself, and indeed, Obama did say this. As to what he means by…her finally bringing justice….well I guess we just have to keep tuned in. I personally don’t like the future on this one.

capejasmine on May 28, 2009 at 3:49 PM

American Power tracked-back with, “Sotomayor’s Abortion Stance”:

http://americanpowerblog.blogspot.com/2009/05/sotomayors-abortion-stance.html

Donald Douglas on May 28, 2009 at 3:56 PM

Who knows—but at least she’s not as pro-abortion as Diane Wood who considers pro-life protesters to be the same as mob bosses. Wood would’ve been a for sure pro-abort vote, along with being a hard lefty. Sotomayor was at least a prosecutor .

TimTebowSavesAmerica on May 28, 2009 at 4:04 PM

Then she should be questioned just like Roberts and others were asked.
No more, no less…she should have to answer the same question and in the same arena, with the same attitude as, Bork, Roberts, Thomas, etc.
No more, no less…for equality sake…no more, no less.

right2bright on May 28, 2009 at 4:04 PM

With the shoe on the other foot, is voting her culture now an issue or did the donkey tent just shrink?

Perhaps if the elephants in the room get a clue the ugly A word is an opportunity to bring some Hispanics on board and stir up a little unrest.

Speakup on May 28, 2009 at 4:05 PM

You are kidding right? This half-assed lawyer is first and foremost an ideologue.

tarpon on May 28, 2009 at 4:12 PM

I thought there was to be no litmus test on a particular issue. Lapsed Catholics who return to the church typically become devout Catholics. I say we should start a prayer vigil for a change of heart.

bloggless on May 28, 2009 at 4:12 PM

No, the Left’s appointees never move the right, only the right will sellout and move left.

Tim Burton on May 28, 2009 at 4:38 PM

You know, I grew up in a split middle class family. I’m Protestant. When do I get a turn on the Court?

To the issue at hand I say, nice effort by the Left to stave off conservative opposition. They think all those “religious nuts” will “put down their pitchforks” with a confused look and say “Der, well if she’s gunna kill Row B. Wade, I reckon she be alright.”

cackcon on May 28, 2009 at 4:51 PM

Hussein.

BTW, I don’t sense that abortion is an issue that could sink Sotomayor. If there is one, I think it’s her judicial stance on the Second Amendment.

There are plenty of Democrats who know they can’t igore the NRA.

J.E. Dyer on May 28, 2009 at 4:54 PM

I’m with the comment above asking why some on the right are so easily played or at least credulously willing to play along.

Yesterday Rush cited her wording on the matter. She used the phrase “anti-abortion” rather than “pro-life” but used “pro-choice” rather than “pro-abortion”.

There’s probably more evidence that this radical woman is anything but pro-life.

KittyLowrey on May 28, 2009 at 4:58 PM

Odds of this happening: about the same odds as Barry turning out to be a great president.

angryed on May 28, 2009 at 5:26 PM

GOP, Sen.Nelson of Nebraska is said to be wobbly on Sotomayer. Put pressure on him, Blanche Lincoln n other red state Dems. Run ads showing their support of radical activists on judges. if you peel one or two Red state Dems, like Nelson, it’ll make your task easier.

promachus on May 28, 2009 at 5:38 PM

he issued a standard disclaimer that Obama didn’t ask her about specific issues

Of course not. Why ask her about specific issues when you can TELL her about specific issues.

rihar on May 28, 2009 at 6:01 PM

If the nominee was a white male, who was a member of the KKK and supported slavery, congress would shred him _and_ the person who had dared to nominate him. And rightly so.

But a hispanic woman who is a member of ‘La Raza’ (according to the ABA), a group that is, IMHO, just as bad as the KKK? Hey, no problem — welcome to SCOTUS.

Ah, wow. Just freakin’ wow.

This is no longer America, folks. It’s the twilight zone.

Timothy S. Carlson on May 28, 2009 at 6:03 PM

Ed- wake up- yer git’n played!

The left is putting this nonsense out there in hopes that the ignorant pro-lifers will fall for it and back this bigot.

ExTex on May 28, 2009 at 6:07 PM

Wouldn’t it be hilarious if the GOP Senators suddenly said that according to their research it is quite likely that Sotomayor would VERY LIKELY vote to repeal ROE. And for that reason they are supporting her.

True or not, what would the donkeys do?

kurtzz3 on May 28, 2009 at 6:46 PM

Earlier this week The Washington Times reported that there are six Catholics on the court without Sotomayor, everyone but Stevens, Souter, Breyer and Ginnsberg.

burt on May 28, 2009 at 8:32 PM

I guess i can’t subtract.

burt on May 28, 2009 at 8:40 PM

If Repulicans roll over on this, then they have outlived their usefulness. We will have two years to come up with a new party; one that has guts.

Star20 on May 28, 2009 at 9:06 PM

I have mixed feelings about people who are pro-choice, and like Allah, am willing to compromise with very, very early abortions (like, first few weeks).

But people who are so outspoken about their pro-abortion views, I have deep reservations and suspicions about. Why are they so insistent about murder?

amkun on May 29, 2009 at 2:15 AM