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Sotomayor Deflects Abortion Questions

July 15, 2009 at 12:00 AM EDT
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Senators repeatedly pushed Judge Sonia Sotomayor to define her views on abortion Wednesday, but she resisted. Kwame Holman recaps the third day of confirmation hearings.

JIM LEHRER: U.S. Supreme Court nominee Sonia Sotomayor fended off efforts today to draw out her views on abortion rights. The nominee faced a second day of questioning before the Senate Judiciary Committee.

NewsHour congressional correspondent Kwame Holman has our lead story report.

KWAME HOLMAN: The renewed focus on abortion followed Sotomayor’s testimony on Tuesday when she agreed the core finding of Roe v. Wade was “settled law.” That 1973 decision legalized abortion in the U.S.

Today, Republican Tom Coburn, an obstetrician from Oklahoma, approached the issue again.

SEN. TOM COBURN (R), Oklahoma: Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sack on the lower sacrum, the lower part of the back on my baby, and I feel like I just can’t handle a child with that. Would it be legal in this country to terminate that child’s life?

JUDGE SONIA SOTOMAYOR, Supreme Court Justice Nominee: I can’t answer that question in the abstract, because I would have to look at what the state of the state’s law was on that question and what the state said with respect to that issue.

The question is, is the state regulation regulating what a woman does an undue burden? And so I can’t answer your hypothetical, because I can’t look at it as an abstract without knowing what state laws exist on this issue or not. And even if I knew that, I probably couldn’t opine, because I’m sure that situation might well arise before the court.

KWAME HOLMAN: Another abortion opponent, Texas Republican John Cornyn, pointed to a Washington Post article from May. It reported White House officials were reassuring liberal groups about Sotomayor’s record on abortion rights.

SEN. JOHN CORNYN (R), Texas: It goes on to say, “White House press secretary said the president did not ask Sotomayor specifically about abortion rights during their interview.” Is that correct?

JUDGE SONIA SOTOMAYOR: Yes, it’s absolutely correct. I was asked no question by anyone, including the president, about my views on any specific legal issue.

SEN. JOHN CORNYN: Do you know then on what basis, if that’s the case — and I accept your statement — on what basis that White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to Roe v. Wade?

JUDGE SONIA SOTOMAYOR: No, sir, because you just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law.

Roe v. Wade and settled law

KWAME HOLMAN: Pennsylvania Democrat Arlen Specter, an abortion rights supporter, also raised the issue. He asked if Roe v. Wade has become a super-precedent, not to be changed.

SEN. ARLEN SPECTER (D), Pennsylvania: How about the fact that the Supreme Court of the United States has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade?

JUDGE SONIA SOTOMAYOR: The history of a particular holding of the court and how the court has dealt with it in subsequent cases would be among one of the factors as many that a court would likely consider.

And among them were issues of whether or not or how much reliance society has placed in the prior precedents? What are the costs that would be occasioned by changing it? Was the rule workable or not? Have the either factual or doctrinal basis of the prior precedent altered, either from developments in related areas of law or not, to counsel a re-examination of a question?

KWAME HOLMAN: Specter tried unsuccessfully to pin down Sotomayor on several other questions, and ultimately he sought her advice.

SEN. ARLEN SPECTER: Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exactly the opposite once they walk across the street?

JUDGE SONIA SOTOMAYOR: That, in fact, is one of the beauties of our constitutional system, which is, we do have a separation of...

SEN. ARLEN SPECTER: Beauty in the eyes of the beholder. It's only Constitution Avenue there.

JUDGE SONIA SOTOMAYOR: Well, the only advantage you have in my case is that I have a 17-year record that I think demonstrates how I approach the law and the deference with which -- or the deference I give to the other branches of government.

SEN. ARLEN SPECTER: I think your record is exemplary, Judge Sotomayor, exemplary.

The impact of international law

KWAME HOLMAN: For the most part, Democrats were content to let that record speak for itself, but Republicans made several forays into other issues. Oklahoma's Coburn wanted to know what deference the high court owes to legal views from overseas.

SEN. TOM COBURN: Is it important that we look good to people outside of this country? Or is it more important that we have a jurisprudence that is defined correctly and followed correctly according to our Constitution and, whatever the results may be, it's our result rather than a politically correct result that might please other people in the world?

JUDGE SONIA SOTOMAYOR: We don't render decisions to -- we don't render decisions to please the home crowd or any other crowd. I know that, because I've heard speeches by a number of justices, that in the past justices have indicated that the Supreme Court hasn't taken many treaty cases and that maybe it should think about doing that, because we're not participating in the discussion among countries on treaty provisions that are ambiguous.

That may be of consideration to some justices. Some have expressed that as a consideration. My point is, you don't rule to please any crowd; you rule to get the law right under its terms.

KWAME HOLMAN: The senator went on to ask about the right of self-defense, and the exchange produced one of the day's lighter moments. The judge said legitimate self-defense depends greatly on the threat being imminent.

The senator answered with a quip from Ricky Ricardo, the Cuban bandleader character on the old "I Love Lucy" show.

JUDGE SONIA SOTOMAYOR: If I go home, get a gun, come back and shoot you, that may not be legal under New York law, because you would have alternative ways...

SEN. TOM COBURN: You'll have lots of 'splaining to do.

JUDGE SONIA SOTOMAYOR: I'd be in a lot of trouble then. But I couldn't do that under a definition of self-defense.

KWAME HOLMAN: With the questioning winding down, the committee prepared to move to the final phase of the hearings. Tomorrow, the senators hear from those who've worked with Judge Sotomayor and others who've been affected by her legal decisions.