A More Perfect Union Nov/Dec 2009

Now that Sonia Sotomayor has been sworn in as the newest associate justice of the U.S. Supreme Court, some reflections are in order.

How much do we really know about how she is likely to rule on certain key issues that will come before the Court? In a New York Times blog on July 17, Times correspondent Adam Liptak said the hearings “were notable for how little they added to the public’s understanding of what sort of justice she would be.” Having watched the hearings daily, I don’t believe that fact was an accident.

One of the key issues is the sanctity of life. There, Judge Sotomayor showed an utter lack of candor. She had previously served as a long-time board member of the Puerto Rican Legal Defense and Education Fund (PRLDEF), a group that advocates for extreme abortion rights. Her association with PRLDEF prompted Sen. Lindsey Graham (R-South Carolina) to ask her if it is true PRLDEF has advocated pro-abortion legal positions in every court brief it ever filed in every case where abortion was at issue.

Her answer: “I didn’t—I can’t answer that question because I didn’t review the briefs. I did know that the fund had a health care docket.”

To call her “response” a mere dodge of the question is far too charitable. I find it inconceivable that she would not have known as a general matter that the pro-abortion PRLDEF—a group where she maintained a leadership position as a board member—has advocated for unrestricted abortion rights in every abortion case where it has filed a brief.

Similar maneuvering was evident when Sotomayor was questioned by freshman Sen. Al Franken (D-Minnesota) about abortion and its so-called legal premise: the right to privacy. She avoided mentioning abortion altogether when waxing philosophical on that issue.

Sotomayor’s clever dodges and sleights of hand may well disclose her own recognition that she is deeply pro-abortion but dared not let the American people nor the Senate see the real depth of her judicial worldview.

But there is concrete evidence that Justice Sotomayor will be much more pro-abortion than David Souter, the justice she replaced. Souter upheld a state law requiring parental consent for most abortions by minors. Sotomayor’s PRLDEF has vehemently opposed both parental consent and parental notification laws. Souter never indicated that abortion (sadly, a constitutional right since the 1973 Supreme Court decision of  Roe v. Wade) is an even higher, “fundamental” con -stitutional right. But Sotomayor’s PRLDEF argues that it is.

Supporters point out that, as a Court of Appeals judge, Sotomayor rendered a decision that upheld the Mexico Policy of the Bush Administration, which prohibited the use of U.S. funds for abortions overseas. But she really had little choice on the merits of the case; the exact issue had already been ruled on by other judges from her Second Circuit Court of Appeals. What isn’t widely known, though, is that, in her decision, she still granted unique legal standing to a radical pro-abortion group to bring similar meritless attacks against other pro-life laws in the future.

Warning signs exist on other issues as well. Senators pressed Sotomayor hard on whether she would follow the dangerous reasoning of Justice Ruth Bader Ginsberg who believes the legal ideas of foreign courts can, and should, influence how the U.S. Supreme Court interprets its own Constitution. Sotomayor used legal double-speak. She pledged not to use foreign law to decide American legal issues, yet almost in the same breath she quoted Justice Ginsberg’s idea that foreign law can be influential. As Adam Liptak pointed out, legal scholars have noted that Sotomayor’s comments were mere word-parsing and created a “false” distinction.

Here also, Justice Sotomayor will be far more liberal than Justice Souter who never jumped on the idea that our High Court should increasingly listen to what foreign courts have to say on legal issues that are fundamentally intrinsic to our own American Constitution.

There are many sobering lessons to glean from the Sotomayor confirmation. But one of them is clear: national elections have consequences. The person elected president chooses whom to nominate to the Supreme Court, and the politicians elected to the U.S. Senate have the power of confirmation.

As Christians, we have a responsibility to understand that, when we vote, we should count the consequences because we will have to live with them in a multitude of areas.