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NYT: On Sotomayor, Some Abortion Rights Backers Are Uneasy


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Since the other Sotomayor thread has turned into a math discussion...

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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.”

Because Judge Sotomayor is the choice of a president who supports abortion rights at a time when Democrats hold a substantial majority in the Senate, both sides in the debate have tended to assume she could be counted on to preserve the Roe decision.

Immediately after Mr. Obama announced his selection on Tuesday, leaders of several other abortion rights groups spoke out in support of Judge Sotomayor, and several conservative groups opposed to abortion rights attacked her, saying they were convinced that the president would not nominate someone who opposed abortion rights.

But in his briefing to reporters on Tuesday, the White House spokesman, Robert Gibbs, was asked whether Mr. Obama had asked Judge Sotomayor about abortion or privacy rights. Mr. Gibbs replied that Mr. Obama “did not ask that specifically.”

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“Everyone is just assuming that because Obama appointed her, she must be a die-hard pro-choice activist,” Mr. Waldman said, “but it’s really quite amazing how little we know about her views on abortion.”

None of the cases in Judge Sotomayor’s record dealt directly with the legal theory underlying Roe v. Wade — that the Constitution contains an unwritten right to privacy in reproductive decisions as a matter of so-called substantive due process. Several of her opinions invoke substantive due process in other areas, however, like the rights of parents and prisoners.

She has also had several cases involving abortion-related disputes that turned on other legal issues. While those cases cannot be taken as a proxy for her views on the constitutionality of abortion, she often reached results favorable to abortion opponents.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.

more on the link...

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I honestly dislike that every Supreme Court nomination becomes a referendum on abortion. Sure, it's an important issue, but should it really be THE issue everyone focuses on almost to the exclusion of everything else?

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I honestly dislike that every Supreme Court nomination becomes a referendum on abortion. Sure, it's an important issue, but should it really be THE issue everyone focuses on almost to the exclusion of everything else?

When you are talking about the right to life which tens of millions never get the chance at, I think it is the biggest issue.

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I don't know... I still think the biggest issue the quality of mind, judicial philosophy, understanding of the constitution, candidate's ability to be impartial, and experience. I think that is overlooked in our overzealous pursuit of controversy.

If you get someone who can reason, tries their damndest to be fair, and his a history of making well substantiated decisions... then hopefully, you can trust the judge to make the right call on the facts of the case as it bounces up against the constitution. As of now, I think the process has become a lot of political grandstanding and gameplaying. Afterall, the moment someone is nominated hundreds jump to their feet saying I hate her or I will support her... without ever looking at her, her history, or her findings.

The Number 1 issue should be the judge (and their mind). We should be able to read her decisions and know if she has a good mind and is a good judge. The political grandstanding and gotcha-isms dilute what a judge should be. A judge should not have pre-determined verdicts.

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I don't know... I still think the biggest issue the quality of mind, judicial philosophy, understanding of the constitution, candidate's ability to be impartial, and experience. I think that is overlooked in our overzealous pursuit of controversy.

If you get someone who can reason, tries their damndest to be fair, and his a history of making well substantiated decisions... then hopefully, you can trust the judge to make the right call on the facts of the case as it bounces up against the constitution. As of now, I think the process has become a lot of political grandstanding and gameplaying. Afterall, the moment someone is nominated hundreds jump to their feet saying I hate her or I will support her... without ever looking at her, her history, or her findings.

The Number 1 issue should be the judge (and their mind). We should be able to read her decisions and know if she has a good mind and is a good judge. The political grandstanding and gotcha-isms dilute what a judge should be. A judge should not have pre-determined verdicts.

I agree with you.

Looking at my post I didn't answer your response appropriately. I was focusing more on the issues that are out there. My bad :D

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I disagree with you a lot, but you state your position nicely if that helps :D

eh, your young yet. Someday you'll have a chance to learn or earn wisdom. It's some of these other disagreeable saps who should make us nervous.

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Great posts B.

But anyone who thinks Obama didnt specifically ask her about how she would rule on this issue is lying to themselves.

So you are saying that the President lied and then asked

his Supreme Court nominee to lie also?

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So you are saying that the President lied and then asked

his Supreme Court nominee to lie also?

Not at all. There are ways to ask the question without asking it.

"No more Souters" is not reserved for the GOP.

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Imagine the political fallout if she turns out to be pro-life. R's will have to take back all of the negative things they've put out about her, she would probably get a healthy R backing for her confirmation. D's would have to decide between alienating the "woman" vote by supporting her or the "Hispanic" vote by opposing her.

It probably is a moot point, I'm sure it was covered during the vetting process. Obama may not have specifically asked her about Roe, but I'm sure someone else did.

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I honestly dislike that every Supreme Court nomination becomes a referendum on abortion. Sure, it's an important issue, but should it really be THE issue everyone focuses on almost to the exclusion of everything else?

Umm, yes & that's the ways it's been sine 73. Constituencies are a powerful behavior controlling mechanism Can't wait to see her answer the Senators questions regarding this issues with Emily list, NARAL & PP in the audience. Sweating much??

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Not at all. There are ways to ask the question without asking it.

"No more Souters" is not reserved for the GOP.

But if you ask it without asking it, there are ways to answer the question without answering it. If Obama didn't have a long conversation with her about the issue, I think the article is right that there is some risk of her being a little more moderate on the issue than the abortion activists would like.

I'm sure she'll get to the hearing and say the magic words "Roe v. Wade is settled law" and everyone will come away satisfied ... what she actually does on the bench is another question, however.

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There has exactly been one major case on Abortion since Roe v. Wade: Planned Parenthood v. Casey.

There are hundred of cases which recieves no attention, yet is far more influential. Gonzales v. Reich is arguably the most important decision in this past decade, and maybe .5% of the populace has ever heard of it.

The "liberals" on the court are no where near as liberal as Justice Brennan and Marshall were.

The Court would be better off with 9 Justice O'Connor's (the "swing vote"). Unofortunetly, its not going to happen as the court becomes more politicized.

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I honestly dislike that every Supreme Court nomination becomes a referendum on abortion. Sure, it's an important issue, but should it really be THE issue everyone focuses on almost to the exclusion of everything else?

It's a joke -- propaganda. Most of the wedge issues are.

IMO, Roe v Wade will never be overturned because deep down, not even the leaders of the GOP want it to be. They'd rather keep using it as a wedge issue instead of rallying a bunch of pro choice women who take abortion rights for granted.

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