Wednesday, June 10, 2009

Rush Limbaugh is being too easy on Judge Sonia Sotomayor. Pro-life groups should not follow the famed radio host in assuming the Supreme Court nominee will have empathy for their legal or moral positions.

Mr. Limbaugh has been telling conservatives that Judge Sotomayor may not merit strong opposition after all, despite what he calls her record of “racist” statements. “I have to say that there’s a better-than-50-50 shot she’s pro-life,” he said on June 5. “I could see being in favor of this nomination were she pro-life. Certainly could.”

Mr. Limbaugh is almost certainly misreading the record. Americans who think the 1973 Roe v. Wade case legalizing abortion was wrongly decided — and think the Supreme Court repeatedly compounded its error by limiting the power of states to regulate abortion counseling and the provision of abortion to minors — should calmly but actively urge their senators to oppose Judge Sotomayor’s nomination.

The most basic evidence of the judge’s support for Roe comes in the triple combination of White House assurances to that effect, of pro-choice senators declaring after meeting with her that they are sure she agrees with them, and of her entire jurisprudential approach of broadly construing anything characterized as “women’s rights.”

Other evidence is more direct. Consider that from 1980 until October 1992, Judge Sotomayor served on the board — at times as vice president and at times as chairman of the litigation committee — of the Puerto Rican Legal Defense and Education Fund. The New York Times in 1992 described her as “a top policy maker on the board.” During that time period, the fund filed briefs in not one, not two, but at least six prominent court cases in strong support of “abortion rights.”

The cases began with an abortion-funding case, Williams v. Zbaraz, just as she joined the board, and they continued through the landmark cases of Rust v. Sullivan, Webster v. Reproductive Health Services, and Planned Parenthood v. Casey. Especially in the Webster case, in which all nine justices joined at least part of the decision saying that states need not provide public funds for abortions, the fund supported positions far more pro-abortion than the court itself did. Also, in the case Ohio v. Akron Center, the fund wrote that it “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”

No statement could be more categorical. The Puerto Rican Legal Defense and Education Fund thus presumably would oppose any restriction, including those on late-term abortions, partial-birth abortions, abortions for minors and the like.

It is possible to serve on the board of a group while not being responsible for a single random legal brief. However, Judge Sotomayor’s group filed such suits at least six times - and as the New York Times reported on May 28 (while discussing a different case), “The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts.”

Even more evidence comes from a passage she included in numerous speeches urging young lawyers to do pro bono work. In all those speeches, she referred — apparently in sorrow — to a 1996 law prohibiting federal funds from being used to support “class-action lawsuits or lawsuits involving abortion, illegal immigration and welfare reform.” In the 2001 speech for Brooklyn Law School’s commencement, she went further, praising efforts to “address the need created by this legislation. These efforts … are not enough. The need is very great.”

In other words, there is a “great” need to make up for the lack of federal funding for pro-abortion lawsuits (and for class-action, pro-immigration and anti-welfare-reform suits as well). That is not a direct statement of support for such suits, but it hints strongly in that direction — especially in the context of Judge Sotomayor’s entire jurisprudential approach and of the Puerto Rican Legal Defense and Education Fund’s long pro-choice advocacy.

In general, judicial nominees shouldn’t be considered on the basis of just one legal issue. It makes even less sense to grudgingly support a nominee in the mere hope that she might support your “side” on one issue. There is no reason to support Judge Sotomayor’s nomination in the hope that she is pro-life when most of the evidence points in the other direction.

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