Sotomayor's Personal Views on Abortion: Why, Again, Do We Care?

Here's my abortion question, not for Sonia Sotomayor, but for the Senate Judiciary Committee: If all of you are so confident that the judges you tend to agree with decide cases strictly on the law, with all personal opinions left in hermetically sealed containers back home in the freezer, then why is every one of you is so determined to get Supreme Court nominees to talk about their private views on this topic in particular?

Given that there are plenty of pro-choicers who nonetheless believe that Roe v. Wade was incorrectly decided back in 1973, how can those of you who support abortion rights be so sure that nominees will view the law the same way they see the moral question? (And if the two are inextricably linked, isn't that a problem?) Similarly, given that there are plenty of pro-lifers whose respect for precedent would make them think long and hard about overturning even a bad ruling after 36 years, I'd ask the same question of them.

Sotomayor said Wednesday that President Obama never asked anything about her views on the subject of abortion; it was strictly 'don't ask, don't tell'. Both pro-choice and pro-life members of the Senate Judiciary Committee do seem to feel they must make at least token efforts to prod her into publicly picking a side. Yet these forays are strictly pro forma, as when Democrat Herb Kohl of Wisconsin asked, "In your opinion, is Roe settled law?'' Not exactly a toughie: "The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe,'' Sotomayor answered. "That is the precedent of the court and settled, in terms of the holding of the court.'' Alrighty then, "Do you agree with Justices Souter, O'Connor, and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?'' Again, Kohl rolled snake eyes: "As I said, I -- Casey reaffirmed the holding in Roe.'' At which point he gave up and moved on to the vital issue of cameras in the courtroom.

It isn't that Sotomayor's personal views are some kind of secret. As Republican Lindsey Graham of South Carolina noted on Tuesday, at the time she was on the board of the Puerto Rican Legal Defense and Education Fund, the group filed multiple briefs equating the lack of government funding for abortions for poor women on Medicaid with slavery. And though Graham's lecturing tone and "gotcha" approach left a lot to be desired, it does seem fair to assume, as he did, that an opponent of abortion rights would not spend her off-hours raising money for such a strongly pro-choice outfit, and neither would someone with gray-area views.

The senators also know perfectly well that Sonia Sotomayor, human holder of personal opinions, has not even shown up for her confirmation hearings; that gal at the front table in the pinstriped suit on Wednesday was her judicial body double, who despite all the talk about her empathy, feelings and biases, mostly answers by citing court decisions.

Republican Tom Coburn of Oklahoma, who is an obstetrician, tried a little different tack in his questioning on the abortion issue; he began by saying he was going to change the tone of the hearing, and then did, apologizing to Sotomayor for a series of outbursts by anti-abortion protesters over the previous two days. Which struck me as another example of how the right thing to do and the politically smart thing to do are synonymous more often than we sometimes assume. In the 30 seconds it took Coburn to let her know that he did not approve of such disrespectful displays, he came off as gracious, made the point that people who run screaming through Senate hearings are not in the mainstream of the pro-life movement, and reinforced the assumption that the nominee is, no matter what she says or doesn't say, squarely pro-choice.

In response to a hypothetical from Coburn about whether a woman should be able to get a legal abortion at 38 weeks after learning her unborn child has spina bifida, Sotomayor said, "I can't answer . . . because I can't look at it in the abstract.'' Even if she did know more, "I probably couldn't opine'' anyway, she allowed, "because I'm sure that situation might well arise before the court." She also declined an invitation to get into a philosophical discussion about technological advances that have moved fetal viability back to 21 weeks, made it possible to record a fetal heartbeat 14 days after conception and fetal brain waves at 39 days. Coburn talked about the inconsistency of "this schizophrenic rule of law'' that defines death as the absense of a heartbeat and brainwaves, "but we refuse to define life as the presence of those.'' He was under no illusion that he might engage Sotomayor in a back-and-forth about that, though, and said so: "I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues.''

Yet it was Coburn – with charm, I note, instead of the sharp edges and sarcasm preferred by some of his colleagues – who may have coaxed the single most "real'' moment so far out of the rightly cautious nominee. In answer to a question about whether the Second Amendment gives us the right to shoot someone in self-defense, she said that depends how imminent the threat of death or serious injury is – and then, laughing and saying she hoped this wouldn't be taken the wrong way, pointed her finger as if it were a gun and added that after being threatened, "If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you could have alternative ways to defend . . . "

If that happened, Coburn joked, well then as Cuban-born Desi Arnaz, aka Ricky Ricardo, used to tell Lucille Ball on the old "I Love Lucy" show: "You'll have lots of 'splainin' to do."

She seemed to enjoy the brief break for human, even slightly non-PC, interaction – and laughed along with the crowd in the hearing room: "I'd be in a lot of trouble then."