President Obama managed to avoid a full-scale eruption over abortion politics with his first Supreme Court nominee, but he probably won’t get that lucky twice.
After surging to the political forefront during the contentious health care debate, the abortion issue shows no sign of retreating in time for the Supreme Court confirmation process this summer. Republicans and pro-life groups remain furious over the compromise struck between pro-life Democrats and the White House that they say left the prospect of taxpayer-funded abortion in the health care law.
That anger is likely to spill over into the confirmation hearings, despite Mr. Obama’s plea Wednesday for a “smooth, civil, thoughtful nomination process and confirmation process” like the one in 2009 for Sonia Sotomayor. He is expected to name a nominee to the nine-member court in the next few weeks.
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“I certainly believe the abortion issue will figure prominently in the upcoming Supreme Court battle,” said Penny Nance, chief executive officer of the conservative Concerned Women for America. “People are highly energized about the fact that their tax dollars are going to pay for other people’s abortions.”
No less a political authority than White House Chief of Staff Rahm Emanuel has predicted a “huge, huge battle” over the president’s nominee. Mr. Obama tried to defuse tensions Wednesday by saying he wouldn’t use an abortion “litmus test” when nominating a candidate to the Supreme Court.
He then added that he wanted a justice “who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights.”
To conservatives, that sounded uncannily like a litmus test.
“When he says ‘women’s rights,’ that’s code for someone who supports abortion on demand,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network and a former clerk for Justice Clarence Thomas. “Whether he calls it a litmus test or not, he’s looking for someone to rubber-stamp his political agenda.”
That could include the Democratic health care reform law. About 20 states plan to challenge the law collectively, arguing that it violates the 10th Amendment by infringing on states’ authority. The next Supreme Court justice probably will be involved in deciding that case.
Few court watchers expect Mr. Obama to nominate anyone other than a pro-choice jurist to replace retiring Justice John Paul Stevens. At the same time, a nominee viewed as extreme on abortion or other key issues is expected to ignite a Senate dogfight that could ripple through the November elections.
In that case, advantage Republicans. With many House and Senate Democrats clinging to tossup seats, a Supreme Court battle royale over a nominee seen as too liberal could drive a Republican landslide in November.
In Mr. Obama’s corner are 59 Senate Democrats, one shy of preventing a filibuster but more than enough than the required majority needed to confirm a Supreme Court nominee. While Senate Democrats have reliably backed the president, some could peel off in the face of a stiff GOP challenge.
“For Republicans to keep this issue in the forefront is a good political strategy,” said Kristen Day, executive director of Democrats for Life of America. “A lot of safe seats could go either way in the fall.”
For that reason, she said, she doubted that the president would play into Republican hands by nominating an established pro-choice activist.
“We just had a huge abortion debate over health care, and I can’t see any reason why people would want Round 2,” Ms. Day said. “I don’t think we would get a nominee who was outspoken on abortion.”
Republicans have shown that they can use abortion to derail a nominee whom they deem too radical. Last week, Dawn Johnsen withdrew her nomination to head the Justice Department’s Office of Legal Counsel after Republicans objected to her views, including her work for abortion rights groups and a legal brief in which she compared unwanted pregnancy to slavery.
Sen. Jon Kyl, Arizona Republican, has warned the president against picking an “overly ideological” nominee, but added that Republicans would filibuster only under “extraordinary circumstances.”
“The election is going to be a huge factor in this nomination process,” said Ms. Severino. “You don’t need Republicans to filibuster a nominee. There are going to be Democrats who don’t want to be seen as supporting someone with radical pro-abortion views in a tight election year.”
The Supreme Court took the lead on the abortion issue since its 1973 Roe v. Wade decision, which declared that women have a constitutional right to abortion.
