Sotomayor and Abortion, Part 1

The political tide turns

The role of abortion in the politics of Supreme Court confirmation battles changed dramatically over the decades, from the defeat of Robert Bork’s nomination in 1987 to the confirmation of Amy Coney Barrett’s nomination in 2020. Sonia Sotomayor’s confirmation battle in 2009 provides revealing signs of the transformation that was underway.

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It’s instructive to compare the role of abortion in Sonia Sotomayor’s confirmation to its role in Ruth Bader Ginsburg’s confirmation 16 years earlier. In both instances, a Democratic president with a deep commitment to Roe (Bill Clinton for Ginsburg, Barack Obama for Sotomayor) had an overwhelming Democratic majority in the Senate (56 Democratic senators in 1993, 59 or 60 at relevant times in 2009). Confirmation of the nominee was as certain as anything in politics could be.

Before becoming a judge, Ginsburg strongly criticized the Supreme Court’s 1977 ruling in Maher v. Roe that the Constitution does not require taxpayers to fund abortions. Just three months before Clinton nominated her, Ginsburg gave a lecture in which she cited Roe as the “most prominent example” of a “breathtaking” decision that “may prove unstable” because its “[d]octrinal limbs [were] too swiftly shaped.” But as Clinton clearly understood, Ginsburg fully supported a constitutional right to abortion. She would have preferred a ruling in Roe that “homed in more precisely on the women’s equality dimension of the issue” and that “merely struck down the extreme Texas law and went no further on that day.” Such a ruling, she believed, “might have served to reduce rather than to fuel controversy.”

In her opening statement at her hearing, Ginsburg declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” But Ginsburg departed most starkly from that commitment when she spelled out her Equal Protection theory for a constitutional right to abortion (hearing transcript at 207-208):

It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex….

Abortion prohibition by the State … controls women and denies them full autonomy and full equality with men.

No Republican senators raised questions or concerns about Ginsburg’s views on abortion in their opening statements. Nearly all of the questioning of Ginsburg on the topic of abortion came from supporters of abortion rights (including Republican senator Hank Brown). Only Orrin Hatch (for whom I was then working) challenged Ginsburg on abortion, and he did so primarily on the question whether she would abide by the Court’s precedents that the Constitution does not require funding of abortion.

Things were very different at Sotomayor’s confirmation hearing.

Before becoming a judge, Sotomayor served for twelve years as a member of the board of the Puerto Rican Legal Defense and Education Fund, sometimes as the chairman of its litigation committee. The New York Times in 1992 described her as “a top policy maker on the board.” Another NYT article, just after Obama nominated Sotomayor, said that she “stood out” among the “active and passionate” board members: She “was an involved and ardent supporter of [PRLDEF’s] various legal efforts during her time with the group,” “frequently meeting with the legal staff to review the status of cases” and “play[ing] an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.” PRLDEF’s “aggressive stances” extended to the realm of abortion. During Sotomayor’s tenure, PRLDEF submitted amicus briefs that supported taxpayer funding of abortion and “oppose[d] any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”

In their opening statements, Senator Jeff Sessions, the senior Republican on the Judiciary Committee, and Senator Lindsey Graham expressed concerns about the PRLDEF briefs. Graham and three other Republican senators questioned Sotomayor on abortion. After the hearing, four of the Republican senators submitted extensive written questions to Sotomayor on the topic.

It’s amusing to see how Sotomayor tried to distance herself from the PRLDEF briefs. She explained to Senator Graham that at PRLDEF “a board member’s main responsibility is to fund-raise,” and she denied even being “familiar” with PRLDEF’s position on taxpayer-funded abortion. So much for NYT’s account of her “involved and ardent” support of PRLDEF’s “various legal efforts.” She even contended that the only question for her as a board member was whether there was “a good-faith basis for whatever arguments [PRLDEF’s lawyers] were making.” As if the board weren’t responsible for setting policy but was instead merely assuring that its lawyers weren’t acting unethically.

Unlike Ginsburg, Sotomayor studiously avoided any comment supporting a constitutional right to abortion. Even when a Democrat asked her whether Roe was “settled law,” she answered only that the Court in Planned Parenthood v. Casey said it was. And even that answer was rendered meaningless by her global declaration that “All precedents of the Supreme Court I consider settled law subject to the deference [which the] doctrine of stare decisis would counsel.” (My point here, I emphasize, is not to fault Sotomayor for her answers on “settled law,” which adopted the approach that John Roberts took and that other nominees have followed. It is, rather, to contrast Sotomayor’s reticence with Ginsburg’s robustness.)

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What explains the difference between Ginsburg and Sotomayor? I’d propose three interconnected factors:

(1) The politics of the pro-life position on abortion improved considerably between 1993 and 2009.

(2) Senate Republicans had abandoned the “deference” approach to a Democratic president’s nomination of a Supreme Court justice and had instead made a nominee’s judicial philosophy a critical factor.

(3) The Senate had re-sorted along ideological lines.

I’ll address the first factor here and the other two in a follow-on post.

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In 1993, pro-life senators were deeply demoralized. The Supreme Court had been widely expected to overrule Roe in its 1992 decision in Planned Parenthood v. Casey but had instead broadly re-affirmed it. (I was a law clerk for Justice Scalia that term.) The Court’s ruling appeared to mark the demise of the conservative legal revolution that Ronald Reagan had inaugurated, as two Reagan appointees (Sandra Day O’Connor and Anthony Kennedy) combined with a George H.W. Bush appointee (David Souter) to salvage Roe. The prospect that Roe would ever be overturned seemed lost.

By 2009, the pro-life position had become much more politically appealing. According to Gallup, the percentage of Americans who believed that abortion should be legal “under any circumstances” had fallen from 32% in March 1993 to 22% in May 2009.

Much of the shift was due to the atrocity of partial-birth abortion.

Partial-birth abortion is the name given to a method of late-term abortion in which the abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs scissors into the head, sucks out the baby’s brains, collapses the baby’s skull, and delivers the dead baby.

This barbarity was inflicted up to 5,000 times a year in this country—generally on healthy babies of healthy mothers. Planned Parenthood and its allies routinely claimed that partial-birth abortion was “rare and performed primarily to save the lives or fertility of women bearing severely malformed babies” (in the New York Times’s paraphrase of a typical claim). But in 1997 the New York Times reported that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, admitted that he had “lied through my teeth” in parroting that claim. In truth, “the procedure was common,” and “[i]n the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along.” In Fitzsimmons’s words, “The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.”

In the mid-1990s, Congress twice passed federal bans on partial-birth abortion, but President Clinton vetoed both of them. In 2000, the Court, by a vote of 5 to 4, ruled in Stenberg v. Carhart that a Nebraska ban on partial-birth abortion was unconstitutional. The substantive prohibition in the Nebraska law was identical to that in the federal bill, but in a healthy rejection of the myth of judicial supremacy (in which I played a bit role at the Department of Justice), bipartisan majorities in Congress enacted the federal ban in 2003, and President George W. Bush signed it into law. Among the 17 Democratic senators who voted for the law were Democratic leader Tom Daschle and senior Judiciary Committee members Patrick Leahy and Joe Biden.

In 2007, with Justice Samuel Alito having replaced Justice Sandra Day O’Connor, the Court reversed course and ruled (by a vote of 5 to 4) in Gonzales v. Carhart that the federal ban on partial-birth abortion was facially constitutional. In dissent, Justice Ginsburg predicted that as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [law’s] prohibition.” But as I pointed out a year later (in “The Mystery of the Missing Lawsuits”), those challenges never arose, presumably because the medical evidence that the abortion industry vaunted was in fact very feeble.

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The Left’s extremism on abortion backfired spectacularly on judicial confirmations during these same years.

Liberal Democrats had aimed to stigmatize as unacceptable any of George W. Bush’s judicial nominees who was thought to oppose Roe. As we have seen, that’s why they filibustered the Eleventh Circuit nomination of William H. Pryor Jr., who at his confirmation hearing courageously stood by his condemnation of Roe as “the worst abomination in the history of constitutional law” and decried that it had “led to the slaughter of millions of innocent unborn children.” But when more moderate Democrats helped form the bipartisan “Gang of 14 Agreement” in May 2005, they agreed to list Pryor among the three nominees for whom they committed to support cloture. They thus expressly recognized that it was not disqualifying for an appellate nominee to hold the view of Roe that Pryor expressed.

When Bush nominated Samuel Alito to the Supreme Court in late 2005, the Gang of 14 Agreement and its protection of Pryor in turn put Democrats at a severe disadvantage in their hope of defeating Alito by filibuster. Democrats couldn’t have hoped for better ammunition to be handed them than Alito’s 1985 job application in which he declared that he “personally believe[d] very strongly” that “the Constitution does not protect a right to an abortion.” But none of the seven Democratic signatories to the Gang of 14 Agreement suggested that Alito’s nomination presented “extraordinary circumstances” that would justify a departure from their general opposition to a filibuster.

Democratic leader Harry Reid recognized that there was no point in fighting a losing battle over the filibuster, so it was left to John Kerry to earn mockery by yodeling for a filibuster from his ski resort in Davos, Switzerland.