What will kill the next Supreme Court nominee?

The law, lawyers, and the court.
May 12 2009 11:15 AM

What Will Kill the Next Supreme Court Nominee?

A) abortion, B) gay rights, or C) neither.

Illustration by Robert Neubecker. Click image to expand.

President Obama has decreed that there shall be no litmus test for the Supreme Court nominee he will name this spring or summer. But even if Obama really has no check list, the right and the left can still wave their own. So what's on those lists?

So far, two usual suspects—gay rights and abortion—are getting only scattershot, tentative play. Maybe the Republicans will put on a more concerted show once a nominee has been named. Or maybe the old wedge issues are just old, in part because the Obama administration is helping to blunt them. Could this be the post-abortion nomination, in which we're spared a furious fight over the future of Roe v. Wade? And could the gay rights debate lose its capacity to divide and embitter, too?

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The Republicans start out with some handicaps. Neither the numbers in the Senate nor the polls about approval ratings are on their side. In addition, this nomination won't shift the balance of power on the court. Obama will presumably replace Justice David Souter, a liberal-to-moderate, with another justice who is liberal-to-moderate. As a matter of vote counting, there's little at stake.

Sens. Orrin Hatch and Jeff Sessions, the Republican leaders on the judiciary committee now that Arlen Specter has switched parties, have so far lowered expectations for a fight. Hatch said out of the gate that it would be a "real dilemma" for his party to oppose two of the women on many shortlists (including a new one whittled down to six names), Solicitor General Elena Kagan and appellate Judge Sonia Sotomayor. Kagan is "a brilliant lawyer," Hatch said, and Sotomayor would be a "tough prospect" to oppose because "she is not only female but she is a Latino" and "understands human hardship." Hardly fighting words. Nor is the denouncing of Obama's interest in judicial "empathy" getting the Republicans far.

Sessions, meanwhile, said that "the American people might feel—might feel uneasy" about a gay nominee but that he would not oppose a pick of Obama's based on sexual orientation. The conservative groups Focus on the Family and Family Research Council similarly hedged, saying that they'll oppose a nominee with a "pro-gay ideology" or record of "homosexual rights activism." The bet is apparently that beyond the base, gay-bashing won't resonate, but framing the nomination as a battle over nationalizing gay rights still might.

If the Republicans could point to a looming showdown in the federal courts over a national right to gay marriage and tie the nominee to it, they might have a wedge-issue winner. But same-sex marriage supporters have been taking their fight to fusty states like Iowa and Maine, not the U.S. Supreme Court. And no one on the short list has a public record of jumping up and down for court-ordered gay marriage, as far as we know. When Obama nominated Elena Kagan as solicitor general in January, some Republicans opposed her based on Kagan's support, as Harvard Law School dean, for a suit that sought to keep military recruiters off campus because of the military's "don't ask, don't tell" policy. Kagan did say she backed the suit—but her law school didn't join it. She was confirmed to her current post by a vote of 61-31. How would the Republicans who voted for her to be solicitor general explain a no vote for her now?

On abortion, Republicans may have even less traction. Obama is expected to pick a pro-choice justice. It will be hard to cast that basic stance in itself as extremist. (Hatch has said that if the president picks a nominee "in the mainstream," "he'll probably have a pretty easy time.") So instead of a general barrage, the Republicans have opened fire on the abortion front against only Judge Diane Wood of the 7th Circuit.

Hatch said of Wood, who is at the top of many shortlists, "She is so sympathetic to issues like abortion rights that she even applied it in racketeering laws." He was talking about the case NOW v. Scheidler, a decadeslong fight over using federal anti-racketeering law to punish protesters at abortion clinics. It's true that Wood ruled repeatedly against the protesters and that she based her rulings in part on the RICO statute better known as a tool for going after mobsters. But if you drill down through the layers of litigation, Scheidler doesn't make for much of a Republican sound bite.

The National Organization for Women and two abortion providers brought Scheidler as a suit against the Pro-Life Action Network, which included groups like Operation Rescue and some of its leaders, over tactics used in the 1980s to disrupt abortion clinics. In what they called "rescues," PLAN sent its members not to accost patients going into the clinics or even to block entrances. Instead, the protesters stormed inside, wrecked medical equipment, chained their bodies to operating tables, and assaulted staff and patients. In Los Angeles, protesters grabbed a patient who'd come to the clinic for a follow-up appointment for ovarian surgery. The rough treatment reopened her incisions, and she had to be rushed to the hospital.

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