Besides all of the racism and racialized sexism in the confirmation hearings yesterday, referred to in the previous post, they also provided an opportunity to look at Sotomayor’s thinking on reproductive choices. It is still unclear what her personal position is on the issue, but the Senators did manage to make some headway:
Senator Orrin Hatch asked about her position on partial birth abortions:
If the holding in the Supreme Court means that it’s settled, do you believe that Gonzales versus Carhart, upholding the partial-birth abortion ban, is settled law?
to which she responded:
All precedent of the Supreme Court I consider settled law, subject to the deference the doctrine of stare decisis would counsel.
This appears to show that Sotomayor will not reverse any decisions on partial birth abortions which have been supported by both Republicans and Democrats.
Diane Fienstein asked about how Sotomayor would handle seeming contradictions between case law surrounding abortion and recent Supreme Court decisions:
The Supreme Court has decided on more than seven occasions that the law cannot put a woman’s health at risk. It said it in Roe in ‘73, in Danforth in ‘76, in Planned Parenthood in ‘83, in Thornburgh in ‘86, in Casey in ‘92, in Carhart in 2000 and in Ayotte in 2006.
With both justices Roberts and Alito on the court, however, this rule seems to have changed, because in 2007 in Carhart II, the court essentially removed this basic constitutional right from women.
Now, here’s my question. When there are multiple precedents and a question arises, are all the previous decisions discarded, or should the court reexamine all the cases on point?
Sotomayor responded that she believed ALL legal precedent should be taken into consideration when addressing the issue. This opens the door for reversing recent “activism from the bench” on the part of conservative judges in the Supreme Court.
Senator Graham asked if Judge Sotomayor believed that reproductive choices were guaranteed by the constitution:
Do you think Roe v. Wade changed American society?
Roe versus Wade looked at the Constitution and decided that the Constitution as applied to a claimed right applied.
Graham also asked about the constutionality of abortion but refused to allow Sotomayor to answer the question or fully flesh out her thinking on the issue, opting instead to make sure his constituents understood that he was pro-life. However, while we did not get a nuanced version of Sotomayor’s thinking b/c of Graham’s interruptions, she did say:
There — the word “abortion” is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due-process —
Implying that she does support the use of the 14th ammendment to justify women’s rights to choose.
This exchange and the one mentioned in the previous post about abortion between Senator Graham and Judge Sotomayor also highlighted the fact that she had been a Board member of an organization that fought for Federal funding of reproductive choices:
Senator Graham: Well, Judge, I’ve got — and I’ll share them with you, and we’ll talk about this more — a host of briefs for a 12-year period where the fund is advocating to the state court and the federal courts that to deny a woman taxpayer funds — low-income woman taxpayer assistance in having an abortion is a form of slavery, it’s an unspeakable cruel — cruelty to the life and health of a poor woman. Was it — was it or was it not the position of the fund to advocate taxpayer-funded abortions for low-income women?
Unfortunately, her response does not make clear whether she supports federal funding or not as you can see from this exchange:
JUDGE SOTOMAYOR: I wasn’t and I didn’t, as a board member, review those briefs. Our lawyers were charged with —
SEN. GRAHAM: Would it bother you if that’s what they did?
JUDGE SOTOMAYOR: Well, I know that the fund, during the years I was there, was involved in public-health issues as it affected the Latino community. It was involved —
At this point Graham interrupts to ask about the meaning of public health and whether or not abortion is a public health issue. As we know, several advocates have pointed out how certain types of pregnancy pose major health risks to pregnant women and how lack of reproductive choices pose others for those who will attempt to abort on their own or using unsafe and unregulated options. However, these issues were not raised in response by Sotomayor who instead remained thoroughly grounded in the question of constitutionality and legal precedent further proving her emphasis on the law rather than the political activism Republicans continue to claim motivates her decisions. All though, as in the case of racial discrimination discussed in the previous post, it seems clear that the people questioning her are motivated by politics.
Graham also asked her about a lawyer’s right to argue that abortion is taking innocent lives:
Let me ask you this. We got 30 seconds left. If a lawyer on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?
To which she responded, lawyers have the right to make any argument they believe best supports the rights of their clients but judges are bound by case law, which seems to me to be the most astute way of entering in an opinion on the issue without outlining it.
Ultimately, while there is some indication that she supports reproductive choice, it is unclear to what extent. Her answers foreground the law and legal precedent and that is critical for an “objective” judge in the highest court in the country. While I would have liked to hear her be more definitive, I think her answers give some insight while also actively combating the main vein Republicans have tried to use to discredit her: that she prefers activism to following the law.
What do you all think?
you can find the entire transcript of yesterday’s preceedings here.