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.