WASHINGTON (BP)–With both sides of the aisle looking for clues as to her position on abortion, Supreme Court nominee Sonia Sotomayor told senators Tuesday that Roe v. Wade is “settled law,” although her answers on the controversial subject didn’t differ dramatically from those given by past high court nominees, even conservative ones.
It was the first day of questioning by members of the Senate Judiciary Committee, who were given 30 minutes each to probe President Obama’s first nominee to the nation’s highest court. Sotomayor currently serves on the U.S. Second Circuit Court of Appeals.
For the second day in a row, pro-life protesters interrupted the session by shouting anti-abortion messages before being escorted out of the room. Norma McCorvey — the “Jane Roe” in Roe v. Wade — was one of the protesters who interrupted the session Monday during senators’ opening remarks. She formerly was pro-choice but now is pro-life.
Democratic Sen. Herb Kohl (Wis.) was the first to tackle the issue in-depth, asking Sotomayor if she thought Roe — the 1973 decision that legalized abortion nationwide — was “settled law.”
“The court’s decision in [the 1992 case] Planned Parenthood v. Casey reaffirmed the court holding of Roe,” Sotomayor answered. “That is the precedent of the court and settled, in terms of the holding of the court.”
Kohl then asked, “Do you agree with Justices Souter, O’Connor and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?”
“As I said … Casey reaffirmed the holding in Roe,” Sotomayor said. “That is the Supreme Court’s settled interpretation of what the core holding is and its reaffirmance of it.”
Later in the day Republican Sen. Lindsey Graham (S.C.) asked her specific questions about abortion, referencing the Constitution and asking, “Is there anything in the document written about abortion?”
“The word ‘abortion,'” Sotomayor replied, “is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process….”
Graham then interrupted her and asked her a follow-up.
Because Sotomayor has never directly ruled on abortion, her views on the issue are under close scrutiny by both sides of the issue. But there is a general assumption by pro-lifers that Sotomayor is pro-choice, partly because of her past statements about judicial philosophy and partly because Obama nominated her and pro-choice senators who have questioned her in private support her. Also, from 1980-92 she served on the board of the Puerto Rican Legal Defense and Education Fund when the organization issued at least six pro-Roe legal briefs.
During his 2005 confirmation hearing, Supreme Court Justice John Roberts — a hero to conservatives — said “Roe v. Wade is the settled law of the land” and “entitled to respect under principles of stare decisis,” a legal doctrine that says a court’s own decision should only be overturned if there is a compelling reason to do so. Like Roberts, Sotomayor and other recent nominees have dodged tough questions about past Supreme Court cases by calling Roe — and pretty much all major decisions of the court — “settled law” subject to respect under stare decisis.
For instance, Republican Sen. Orrin Hatch (Utah), who is pro-life on abortion, asked Sotomayor if she believes Gonzales v. Carhart — the 2007 case that upheld the federal ban on partial-birth abortion, was settled law. Pro-lifers applauded the Gonzales ruling.
“As precedent of the Supreme Court, I consider it settled law subject to the deference, the doctrine of stare decisis,” she said.
Sotomayor may have given more insight into her legal reasoning on abortion during questioning by Democratic Sen. Dianne Feinstein (Calif.), although it was difficult to discern whether she was giving her own opinion or what she viewed as the opinion of the Supreme Court. Feinstein criticized Gonzales, in which she said the court seemed to jettison its past requirement that all abortion restrictions include an exception for the woman’s health.
“In the Carhart case,” Sotomayor answered, “the court looked to its precedents, and as I understood that case, it was deciding a different question, which was whether there were other safer means and equally effective means for a woman to exercise her right than the procedure at issue in that case. That was, I don’t believe, a rejection of its prior precedents. Its prior precedents are still the precedents of the court — the health and welfare of a woman must be a compelling consideration.”
Said Feinstein, “So you believe that the health of the woman [exception] still exists?”
“It has been a part of the court’s jurisprudence and a part of its precedents,” Sotomayor said. “Those precedents must be given deference in any situation that arises before the court.”
On other topics Sotomayor:
— defended her position on the Ricci v. DeStefano case, in which she and her Second Circuit colleagues recently were overturned by the U.S. Supreme Court. In that case, a group of white and Hispanic firefighters sued New Haven, Conn., after the city tossed out a promotional test on which the firefighters had scored high. No black firefighter scored high enough to be promoted. The Supreme Court ruled that the city had wrongly discriminated against the group of white and Hispanic firefighters; Sotomayor had sided with the city.
“The panel, made up of myself and two other judges in the Second Circuit, decided that case on the basis of a very thorough 78-page decision by the district court and on the basis of established precedent. The issue was not what we would do or not do, because we were following precedent,” she said. “… The Supreme Court in looking and reviewing that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law.”
— was asked about a past comment in which she said the “court of appeals is where policy is made.”
“That remark, in context, made very clear that I was not talking about the policy reflected in the law that Congress makes,” she said. “That’s the job of Congress — to decide what the policy should be for society. In that conversation with the students, I was focusing on what district court judges and what circuit court judges do. And I noted that district court judges find the facts and they apply the facts to the individual case…. Their holding doesn’t bind anybody else. Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications, because it binds not just the litigants in that case; it binds all litigants in similar cases and cases that may be influenced by that precedent.”
Republican Sen. Jeff Sessions (Ala.), though, wasn’t persuaded.
“I don’t think it’s that clear,” he said. “I’ve looked at that tape several times, and I think a person could reasonably believe it meant more than that.”
— expressed regret for saying in the past: “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
“No words I have ever spoken or written have received so much attention,” she said Tuesday. “I … was using a rhetorical flourish that fell flat…. It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge. It’s clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.”
Sotomayor’s analysis of that and other quotes frustrated Sessions, the committee’s ranking Republican.
“I think it’s consistent in the comments I’ve quoted to you and your previous statements that you do believe that your backgrounds will … affect the result in cases, and that’s troubling me,” Sessions said.
Michael Foust is an assistant editor of Baptist Press.