The Catholic Thing
New Hearings, New Possibilities Print E-mail
By Hadley Arkes   
Monday, 06 July 2009

We await now the coming of Sonia Sotomayor. The hearings over her confirmation to the Court will open in another week, and the Republicans and pro-lifers are gnashing their teeth, for they see little they can do to avert what they sense is a calamity in the making. When the nominees have been sent up by Republican presidents, the Democrats have assumed—not always correctly—that the candidate before them is a probable vote to overrule Roe v. Wade. Even if they cannot block the confirmation, they can at least wound the candidate in some way and score some points for their side. They try to elicit, from the candidate, his willingness to respect Roe v. Wade as a precedent. As Richard Doerflinger once observed after a study of the polls, about 60 percent of the public would oppose about 90 percent of the abortions permitted under Roe v. Wade and its companion case of Doe v. Bolton. But the Democrats regard this matter as a bit too jarring to convey to the public, and so they are content to leave the hearings in a benign haze on what that “right to abortion” really covers.

When a Democratic president sends up a nominee, the Republicans have been more anxious to show how fair-minded they are. They will focus their concerns on “judicial activism” and “legislating from the bench.” They will expend their genius in railing against a problem that most of the public do not understand, and care little about.

And yet the Republicans could waken themselves from their melancholy.

Since the last hearings for a nominee, there have been some shifts that mark a new moment, and some new possibilities are in sight for those with eyes to see. A Court containing John Roberts and Samuel Alito upheld the federal bill on partial-birth abortion. It upheld, that is, a restriction on abortions performed at the very point of birth, with most of the body of the child dangling outside the body of the pregnant woman. But about two-thirds of the Democrats in the Senate and the House voted against that bill. They were willing to put themselves on the record in opposing a limit on abortion even at the point of birth. And Judge Sotomayor’s nomination has come from the most radical pro-abortion President we have yet seen, a man who would not accept a limitation even on killing a child who had survived an abortion. These plain facts, now on the record, are momentous. They mark a truly new situation for the occasion of these hearings. Unless the Republicans are brain-dead, they have the chance now to bring out points about the law that would truly capture the attention of the public--and make these hearings into a torment for one Barack Obama.

There would be no need to assail or disparage Judge Sotomayor. The Republicans can merely ask the Judge to draw upon her seasons of experience in the law to lay out for them her understanding of the law that has been shaped now on abortion by the Court. One of the plainest questions must be, Is there any limit to that right to abortion, either in the age of the child in the womb, or the reasons for electing that surgery? If so, where are those limits? Most Democrats in Congress refused to see even the point of birth as the limit. Does she regard that as an arguable point, or does she think that matter has been “settled” now by the Court?

The President who appointed her thought that it would impair that constitutional right to abortion if the law sought to preserve the child who survived. Does she regard that as a tenable view, which may yet be argued as an open question in a Court she will join? If not, she rebukes severely the President who appointed her. But if she defends him, she reveals to the country an understanding of abortion that is truly radical, sweeping, unqualified at any time, for any reason. And that itself would be a headline in the making. ("SOTOMAYOR REFUSES TO RULE OUT RIGHT TO KILL THE CHILD BORN ALIVE.")

Just to raise this question will set Democrats to defending their President; it would gin up Team Obama in denying again that he had opposed the Born-Alive Infants’ Protection Act in Illinois; and it would compel the media to cover a part of the Obama story that they had been quite content to leave uncovered, undisclosed.

But let us suppose that Judge Sotomayor moves in the grooves of conventional opinion, and gives the answers that most of the public would prefer to hear. Let us suppose that she reflects the polls and notes that even people who are “pro-choice” think that some abortions may rightly be restricted. She would not likely vote, as a judge, to uphold any restrictions. But by affirming that point, she puts in place the premises that would support any pro-life nominee to the Court in the future. And she would set the stage for the steady erosion of Roe v. Wade. With those simple moves, to allay misgivings, she could induce, among the most zealous supporters of the Administration, a deep heartburn and buyer’s remorse. Some things to be extracted and savored even in a bad situation.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and is one of the architects of the Defense of Marriage Act. Prof. Arkes notes, as Ronald Reagan once put it, that he celebrates this morning the "30th anniversary of my 39th birthday."

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Comments (12)Add Comment
The Evil Agenda
written by Willie, July 07, 2009
Thanks Mr. Arkes for the glimmer of hope amidst the impending judicial farce. Anyone who thinks Sotomayor, a handpicked choice of the most anti-life politician ever, will turn out to be moderate in her opinions is naive. Hopefully, the Catholics who voted for this regime, confused by economic woes and the moral eqiuivalency of abortion, war and poverty will see this appointment as a part of an agenda to further politicize the court and rule from the bench rather than through the legislature.
written by Dan, July 07, 2009
Outstanding advice Professor. You should run for the Senate.
written by Naomi, July 07, 2009
Brilliant, Professor. Now is there someone in your world of education and/or politics who could see that our Pro-Life Senators and Congressmen, few as they are, could read this? I worry that this line of questioning will not happen unless someone lights the fire and gets it going. It is so frustrating to be in this world of Obama. Frightening too for my kids and grandkids... Please, will somebody out there use his connections to advise or admonish the few Congressmen on this issue.Please God.
a dumb question
written by Jennifer B, July 07, 2009
I would love to forward this and a couple of other writings to the people who will be questioning Judge Sotomayor. How can we find out which Republicans will serve in order to put this idea into their heads?
written by Matt, July 07, 2009
Let's assume the hearings pan out as you describe above, and Sotomayor speaks confidently of infanticide and the like. Who's going to report it to the public?
written by dust, July 07, 2009
Another fine column. I do not have much hope of a "Good" outcome with this nomination to SCOTUS. The depth of the infiltraion of the proponents of the culture of death is so extensive, particularly in the Obama regime, that there is not much hope of emplacing limits on the murder of innocents in the womb for some time to come. Those who knowingly voted for these amoral monsters have innocent blood on their heads. Try hiding that on your seamless garment when your time here comes to an end.
New possibilities
written by Bradley, July 07, 2009
The Senate hearings will probably be ho-hum, as they usually are. New possibilities? For GOP politics, perhaps. But hearts won't be converted, which is what will ultimately stop abortions, legal or not. There is much more potential in President Obama's upcoming meeting with Pope Benedict XVI, an event about which TCT has been conspicuously silent. In the spirit of Gaudium et Spes, perhaps, the Pope can truly open the door to new possibilities.
To Bradley
written by Brad Miner, July 07, 2009
We've been "conspicuously silent" about a meeting between the pope and the president? My friend, it hasn't happened yet.
written by Bill K, July 08, 2009
Arkes' rhetorical pitch for his gambit fairly invites Matt's skepticism about the lapdog media. There is nothing closer to an American princeling --- certainly not in the legal profession- than a federal appellate judge. She is so insulated as to never be compelled to truly reflect on her beliefs. (Her colleague, John Walker, is the exception.) Epiphanies are rare. Yet skillfully using Arkes' gambit at confirmation might induce a 'wise Latina' to seriously reflect. Perhaps for the 1st time.
To Brad Miner
written by Bradley, July 08, 2009
The very fact that a Benedict-Obama meeting has been scheduled and will take place is newsworthy. Benedict honors both the institution of the Presidency and Obama personally with a meeting. He could have declined a meeting, which would have generated extraordinary publicity and headlines ("Pope declines Obama meeting because of abortion issue"). Instead, our Holy Father has chosen to meet him. Given the multi-week build-up to the ND commencement, the silence here is indeed conspicuous.
to brother bradley
written by debby, July 08, 2009
we all know that the Pope will receive another head of state. this isn't a newspaper. ND INVITED & HONORED w/quite a lot of hoopla & no fidelity to the Faith the American Icon. Pope Ben doesnt need Rebuking-unlike ND.
No one knows what our Holy Father will say or how the Holy Spirit will move this meeting. ND needed a public spanking by Catholics who do not compromise their hearts over pop-culture . Michael Jackson would have been a "better" pop-culture, sick choice. At least he could dance!
written by J., July 10, 2009
Happy Birthday, Prof. Arkes!

Thank you for having served the country so well. You have written excellent books, especially First Things, which have challenged and instructed the American mind in a unique way. Not content with the lot of a sequestered scholar, you went into the agora to argue with your fellow citizens, and the happy result is that you are largely responsible for saving a great many lives and relieving a great many mothers and fathers of profound, lasting pain.

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