Some years ago, it was standard practice for the White House to check with nongovernment groups, including the Catholic bishops' conference, to make sure that possible Supreme Court nominees met with their approval. This apparently has not been the case during the last 20 or 30 years.
Regrettable as that may be in some ways, perhaps it's just as well, considering that among those to whom the bishops' national organization gave its blessing back in 1975 was John Paul Stevens. As a justice, Stevens has turned out to be reliably opposed to Catholic views on many matters of concern to the Church.
This routine outside vetting of potential candidates went on back in the days when those actually nominated were generally taken at face value and not examined too closely -- the assumption being that nearly anyone a president might put forward would stand within the rough parameters of the national consensus on most issues. That, however, was before the Borking of Reagan nominee Robert Bork by Sen. Edward Kennedy and others turned the Senate confirmation process into a blood sport, with the abortion controversy at the heart of it.
That glance at history brings us to Judge Sonia Sotomayor, the federal appeals court judge President Barack Obama nominated last month to replace Justice David Souter, who is retiring this summer. In a better world than this, not Sotomayor but Mary Ann Glendon or someone like her would be heading to the court next fall to take Souter's seat. But the world is as it is, and so President Obama has tapped Sotomayor.
Besides being smart women lawyers, Judge Sotomayor and Harvard law professor Glendon have it in common that they are Catholics -- sort of, anyway. Glendon is a serious Catholic, who served most recently as U.S. ambassador to the Holy See in the last year of George W. Bush's presidency. Sotomayor was raised a Catholic and attended Catholic school, but now apparently practices irregularly at best.
If confirmed, she will bring the number of Catholics on the court to an unprecedented six, joining Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Roberts, Scalia, Thomas and Alito make up the court's conservative bloc. Kennedy is a swing voter. Sotomayor is expected to line up with the court's liberals -- Stevens, Ruth Bader Ginsburg and Stephen Breyer.
To some extent, she's a liberal stealth candidate, with a skimpy public record on several hot-button issues. At the moment, she may be best known for having been a part of a federal appeals court panel that ruled against white firefighters in New Haven, Conn., who claimed discrimination by the city. They were denied promotions when New Haven scrapped a color-blind promotion examination that they, but no African-American candidates, had passed. Supreme Court observers say it's likely to overturn that decision before it adjourns this month.
On abortion, Sotomayor's only noteworthy decision upheld the government's right to refuse funding to groups that promote and perform abortions overseas. This is the so-called Mexico City policy that Obama overturned in one of his first acts as president.
Since the abortion lobby found this worrisome, White House press secretary Robert Gibbs, speaking for the president, obligingly declared that Obama was "very comfortable" with the nominee's views. Obama has promised to name only pro-choicers to the Supreme Court.
As a Hispanic woman whose personal history of success against the odds reflects the American dream, Sotomayor seems almost certain to be confirmed. But senators have a duty as well as the right to question her closely about her judicial philosophy. The Supreme Court and the nation at large are owed at least that much.
Russell Shaw is an OSV contributing editor.