NRL News
Page 2
June 2009
Volume 36
Issue 6

Filling in the Blanks on Judge Sotomayor
By Dave Andrusko

By the time you have a chance to read these remarks, we can hope that more details will have been added to fill in what is largely a blank slate. I’m referring, of course, to Judge Sonia Sotomayor, pro-abortion President Barack Obama’s nominee to take the place of pro-abortion Justice David Souter, whose retirement is imminent.

On abortion Judge Sotomayor is, essentially, the stealth candidate. There is very little in her record that tells you much of anything one way or the other. Where she has ruled tangentially on abortion, the only way she could have satisfied the abortion lobby would have been, judicially, to run amuck.

So what do we do? We take Judge Sotomayor’s “sparce” record on abortion (a favorite media description), combine it with the assurances made to the abortion lobby, and sprinkle on Obama’s record (and promises) on abortion. While this still remains speculation, it is educated speculation.

Before we talk about Judge Sotomayor, Yale Law School graduate and member of the United States Court of Appeals for the Second Circuit, let’s not forget what the American people say they want. Last November The Polling Company asked voters if they prefer a President to nominate Justices to the Supreme Court and judges to the federal courts who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” or “take into account their own viewpoints and experiences” in deciding cases.

By more than a 3–1 margin they voiced support for judicial restraint (70% to 22%). Interestingly, this included 79% of Republicans, 64% of unaffiliated voters, and 52% of Democrats. In a word, Americans aren’t looking for a justice who is going to treat the Constitution as if it were a Rorschach test, reading meanings into our founding document that are not grounded in its text and history.

We need to remind ourselves that Obama is so politically adroit he could have been separated at birth from “Slick Willie,” a.k.a. former President Bill Clinton. He truly is amazing. You listen to him and there is something for everyone, thus giving him maximum flexibility and cover for whatever his real intentions are.

For example, in announcing his selection of Judge Sotomayor, Obama went out of his way to state that the qualities he admires in judges include a “recognition of the limits of the judicial role, an understanding that a judge’s job is to interpret, not make, law; to approach decisions without any particular ideology or agenda.”

In virtually the next breath he added of Sotomayor that she also had “had a practical understanding of how the law works in the everyday lives of the American people.” Obama also talked about “experience”—essentially overcoming life’s difficulties—and how that “can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.” That, he said, “is a necessary ingredient in the kind of justice we need on the Supreme Court.”

And although Obama studiously avoided the “E” word (empathy) in introducing Sotomayor, she could not possibly have been chosen had she not come loaded with the quality that Obama has highlighted over and over again. But for Obama empathy does not mean equal empathy for all, as columnist Stuart Taylor has pointed out. It’s “special empathy” for the “powerless” (unborn babies being, of course, the conspicuous exception).

But Obama was far too shrewd to personally assure abortion groups, leaving that to others. Referring to White House Press Secretary Robert Gibbs, the Washington Post reported that “Gibbs indicated that the White House is nonetheless sure she agrees with the constitutional underpinnings of Roe v. Wade, which 36 years ago provided abortion rights nationwide.”

Gibbs said, “In their discussions, they talked about the theory of constitutional interpretation, generally, including her views on unenumerated rights in the Constitution and the theory of settled law,” adding, “He [Obama] left very comfortable with her interpretation of the Constitution being similar to that of his.” Just for good measure the Post quoted from a 2007 debate in which then-candidate Obama said, “I would not appoint somebody who doesn’t believe in the right to privacy.”

Later, Sen. Dianne Feinstein (D-Ca.), a member of the Senate Judiciary Committee, told the Legal Times that she believes Sotomayor has a “real respect for precedent” on abortion. Feinstein had spoken to the nominee earlier in the day.

“She said that the two discussed abortion in general terms, and that she plans to ask Sotomayor about the issue further during her confirmation hearing,” the Legal Times reported.

Let me conclude by referring you to the back cover, where NRLC’s reaction to the Sotomayor nomination is reproduced, and making a couple of final points. First, this is a President who is everything the Abortion Establishment could ever want. Just to mention a couple of low-lights, he previously opposed a bill to recognize all babies born alive during abortions as fully protected by law, endorsed the radical “Freedom of Choice Act,” and promised Planned Parenthood that “reproductive care” is at “the heart of the [health care reform] plan that I propose.”

Second, we will not be intimidated into silence by the same people who tried to rule an honest appraisal of then-candidate Barack Obama out of order. It was clear from the get-go that Obama had a lengthy abortion agenda that he would try to realize. That was why we opposed him.

Likewise, the issue is not about the prospect of Judge Sotomayor being the first Latina to sit on the High Court. It is her possible impact on abortion jurisprudence.

 Third, in that vein, what is the nominee’s view on what might be called the plasticity of the Constitution. Is the text and history of the Constitution the solid materials out of which he or she renders their rulings? Or is the nominee a freelancer who considers the text and history the equivalent of silly putty that can be shaped into any result she wishes? The latter perspective gave us Roe v. Wade and Doe v. Bolton.

Fourth, and finally, there is a net of protections (minimal, to be sure)  that has been established since Roe  and Doe were handed down in 1973. To quote from NRLC’s response to her nomination, “Does Judge Sotomayor believe 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?”

Put another way, does she believe that elected lawmakers are co-equals in the American system of government whose judgments ought to be respected except where they violate a clear and explicit prohibition in the actual Constitution, or does she consider them mere nuisances? This is critically important because we know that there are other policy issues that will come before the High Court, such as sex-selection abortions.

Especially in the age of Obama and pro-abortion Democratic majorities in both houses of Congress, these are not incidental, minor questions. While his legion of admirers in the media insists he is Mr. Moderate, in truth Obama’s Abortion Agenda is breathtakingly sweeping in scope and impact.

To keep track of the latest on the Sotomayor nomination, be sure to visit Today’s News & Views found at www.nrlc.org/News_and_Views/index.html.