Sunday, July 12, 2009

Supreme Court -- Sotomayor (Privacy)

The most controversial subject that involves the constitutional right to privacy that has been established in case law for more than four decades (as I discussed in this and subsequent posts) is abortion.

Judge Sonia Sotomayor, President Obama's nominee for the Supreme Court, has not, as a judge on lower federal courts, dealt with the abortion issue, in as direct a manner as she addressed racial discrimination issues in the case I discussed in this post.

Since the Court's Roe v. Wade abortion decision of 1973, abortion (specifically, the question of whether Roe might be substantially altered, or completely overturned) has received much attention during Supreme Court confirmation proceedings in the Senate. The Sotomayor nomination is not an exception to that rule.

At first glance, one might assume that a nominee of the pro-choice Obama, would defend Roe. But one of Obama's predecessors, George H.W. Bush, thought the opposite of David Souter, one of Bush's Court nominees. Bush guessed wrong, and Souter voted to uphold Roe. Might Obama be surprised in the opposite direction?

Both sides in the abortion debate have scoured Sotomayor's record, to try to discern clues from cases dealing indirectly with the issues that were involved in the Roe case. This New York Times article from May 27 discusses the uncertainty across the spectrum, about her views on abortion issues.

I'm sure that, in the Senate hearings that begin this week, Sotomayor will follow the example of previous nominees, and decline to directly state how she would vote on any future case involving those issues.

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