Barack Obama’s selection of Sonia Sotomayor for a seat on the Supreme Court confirms both how determined the president is to avoid a national abortion debate and how wise judges and lawyers with high court ambitions are to keep quiet on abortion.
In more than ten years as a federal appeals court judge, Sotomayor has never confronted with a case that directly dealt with right to choose enshrined in the Supreme Court’s 1973 Roe v. Wade decision. Nor in that time, or at any other point in her legal career, has she made any speeches, written any essays, or issued any public pronouncements that offer any insight into her position on the basic question of whether a woman has a right to an abortion.
And, on the two occasions when her professional duties compelled her (rather tangentially) to confront the abortion debate, she actually weighed in on the side of the pro-life community—first, in a 2002 ruling that rejected the Center for Reproductive Law and Policy’s challenge to a Bush administration policy that barred foreign organizations for using U.S. aid to perform abortions, and again in 2003, when she sided with anti-abortion protesters who alleged that police officers had used excessive force against them.
Selecting a nominee with an essentially nonexistent public track record on such a touchy issue is perfectly consistent with the approach Obama has taken to the subject of abortion. He has long made it clear that he support the “right to choose” but has often seemed as interested—if not more interested—in voicing his respect for the views of abortion opponents and, where possible, seeking common ground with them.
Since taking office, Obama has publicly declared that the Freedom of Choice Act, which has lingered in Congress for years to the disgust of the pro-choice community, “is not my highest priority.” In that same press conference, he criticized abortion supporters who “who suggest that this is simply an issue about women's freedom and that there's no other considerations”—a message he reiterated in a closely scrutinized speech at Notre Dame two weeks ago.
At the same time, Obama has not wavered from his basic commitment to the principles of Roe. While he took pains to reach out to pro-lifers at Notre Dame, he made sure to note that “at some point” his views and theirs were “irreconcilable.” In other words, he wants abortion to remain legal, but also wants to work with pro-lifers to reduce it and to make alternatives more appealing—and he’s not interested in treating pro-lifers as unenlightened fanatics, an attitude that dominated the Democratic Party 15 years ago.
Picking Sotomayor meshes with this approach. While there’s nothing in her professional history that says much about her abortion views—and while Obama will certainly deny that he employed any litmus test—you can take it to the bank that Obama is satisfied that Sotomayor will not vote to overturn Roe and will generally support abortion rights on the court.
But because her actual professional record is so muted on the subject, there isn’t much for abortion opponents to latch onto. Sure, several pro-life groups have already announced their opposition, justifying it by her statement on a Duke University panel in 2005 that the appeals court is “where policy is made.” This, to them, certifies her as an “activist judge.” But what is most notable about their opposition is that they can’t point to a single ruling or statement from Sotomayor that specifically suggests support for Roe.
Abortion always features prominently at Supreme Court nomination hearings, and Sotomayor’s will be no exception. But because she has given pro-lifers so little to work with, the volume of the debate should be comparatively low this time around; her selection won’t open a new front in the culture wars. This way, Obama will (very likely) succeed in placing a pro-Roe justice on the court without significantly setting back his effort to straddle the line between the pro-choice and pro-life communities.
The fact that Sotomayor has been so quiet on abortion is no accident, either. She has known for years that she might someday be a candidate for a Supreme Court appointment, and she seems to have made a conscious effort to avoid taking on needless ideological baggage. Yes, luck played a role in keeping hot potato abortion cases off her docket for the last ten years, but it was also her choice never to speak out on the subject.
Here, she seems to have learned from the examples of Robert Bork and Clarence Thomas, previous nominees who’d outspokenly addressed topics like natural law and privacy rights before being selected for the court. Bork, chosen by Ronald Reagan in 1987, refused to back off his provocative statements, telling senators that he would enjoy “an intellectual feast” as a member of the court. His nomination was rejected.
Thomas, nominated by George H.W. Bush in 1991, essentially disavowed all of his previous comments and, in what then-Judiciary Committee Chairman Joe Biden called “the most unartful dodge I have heard,” maintained that he’d never so much as thought about the constitutionality of abortion in the 18 years between the Roe decision and his nomination. Thomas’ hearings were soon overshadowed by charges of sexual harassment, but before that, his nomination succeeded in re-opening the national abortion debate.
Sotomayor, over the last decade or two, could have modeled herself after Pamela Karlan, a stridently liberal Stanford law professor who many liberals hoped Obama would choose for the court, but she chose not to. Maybe it just wasn’t in her nature. But her silence served a strategic purpose, too. As Karlan told Stanford graduates this month, “Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime.”
In effect, Sotomayor positioned herself for the day when a Democratic president would seek a Supreme Court nominee with a low-profile on abortion. When Obama was elected, she’d found her man.