As the U.S. Senate appears to be on the verge of approving the nomination of Judge Sonia Sotomayor as the third woman and first Hispanic to the U.S. Supreme Court, it is worth reflecting on the enormous elephant in the living room of every recent Supreme Court appointment.
That elephant, of course, is abortion. But if you were so foolish as to think that anywhere in the nominating process you would actually hear a substantive discussion of abortion as a constitutional right, you would be sadly mistaken.
When it comes to the high court, abortion is the third rail of judicial nominations: Touch it at your peril. The strategy crafted by both parties is that there will never be an honest discussion of abortion during the nomination process.
Indeed, for the last several Supreme Court appointees, if we are to believe the testimony, a whole string of presidents with quite well-defined views on the topic (Reagan, Bush, Clinton, Bush and Obama) never even discussed the topic with the nominees, and nominees are prized for the miniscule "paper trails" they have regarding this and other controversial issues.
In the case of Justice David Souter, the strategy appeared to backfire, when President George H.W. Bush's nominee turned out to be an abortion supporter once on the court. In general, however, the "nudge nudge, wink wink" strategy of nominating ideological safe bets seems to be working.
Justice nominees are now so expertly coached that they never betray a hint of an opinion on wide swathes of controversy. John Roberts, now chief justice of the Supreme Court, affirmed that Roe v. Wade legalizing abortion was "settled law" and "settled as a precedent of the court." Despite his wife's well-known pro-life activism, he gave a safe answer that boxed in those who wanted to corner him on this issue.
The Democrats have learned the lesson well, and Judge Sotomayor never gave a hint of her opinion on the issue. It appears that she never talked about it with anyone, although that has not stopped others from assuring abortion supporters that, wink wink, she is one of them.
While all of this may make for a winning political strategy (and confirms that there remains no national consensus on abortion) the losers are the American people, for it robs the country of any sort of substantive discussion of abortion and its legal implications.
At this point, Americans have to wait until the justices win their coveted seats before they expound on their abortion views. Justice Antonin Scalia, the conservative flag bearer, told "60 Minutes" that the U.S. Constitution does not address abortion, so it is an issue for the states. And in a recent interview in The New York Times, Justice Ruth Bader Ginsburg suggested the motivation for legalized abortion had to do with concern about population growth and "particularly growth in populations that we don't want to have too many of."
Pro-lifers are often criticized that they are single-issue voters who don't realize how many other important issues there are. Yet in this stalemate in which the differences remain, as President Barack Obama himself acknowledged, "irreconcilable," the standoff will continue, no matter how diligently politicians seek to minimize it or avoid it.
Judge Sotomayor's effort to eschew all opinions on the topic notwithstanding, her confirmation hearings are further evidence that the moral and legal issue of abortion is far from being resolved in American society.