Adventures at the Hearings: A Report to Our Readers

Two weeks ago, in the run-up to the hearings over Sonia Sotomayor, I took the moment to sketch out a different strategy for the pro-lifers in these hearings. For thirty years, the Democrats have sought to extract from the Republican nominees a promise to respect the holding in Roe v. Wade as deeply “settled law.” But at the same time they have been content to shield from the public any precise sense of what that holding actually was: that abortions could be ordered for virtually any reason throughout the entire length of the pregnancy—and perhaps even after the child was born. I argued that the primary aim of the questioning should not be to attack Judge Sotomayor, but to put on the record some news that would be jolting to the public, straining for the party of abortion in Congress, and especially embarrassing for the most radical pro-abortion President we have yet to see.

That column of mine elicited many kind comments from our readers, along with urgings that something be done to put the plan into the hands of pro-life senators on the Judiciary Committee. We rarely report back to our readers, but in this case I thought it would be apt to offer a brief report to our readers on “what happened next.”

On the morning that my column appeared, I spoke to a meeting of Republican staffers on Capitol Hill, making the case for the strategy I had put forth. With the help of friends on the Hill, the plan was spread around to staffers on the Judiciary Committee, and I met with Sen. Sam Brownback to enlist his help with his former colleagues on the Committee. Drawing on experience, I sketched out a scheme of questioning that could be used, offering a kind of script. One friend, a former staffer on the Committee, added another critical section to that draft. Our draft made its way to the friendly, receptive staff of a pro-life senator, and it was reported that he would make use of the scheme of questioning we had mapped out.

But the senator was also diverted by other things. Most notably, he was embroiled in the arguments over the nationalizing of medical care. He was also drawn persistently to the issue of the right to bear arms under the Second Amendment. Late in the hearings, he did raise the question of what exactly was the holding in Roe v. Wade. Sotomayor stepped then into a trap she made for herself—but the senator lost the moment. He lost the chain of reasoning and the sense of how to follow through on what she had told him. The senator asked about the aborting of a fetus with spina bifida well over thirty weeks into a pregnancy, and Sotomayor responded in this way:

I would have to look at what . . . the state’s law was on that question . . . with respect to that issue. . . .The law has . . . talked about the constitutional right [of abortion] . . . in certain circumstances. And as I indicated, the issue becomes one of, what’s the state regulation in any particular circumstance?

That was, of course, preposterous, as she should have known, for the Court has not upheld any law from the states that actually forbids the performance of an abortion under any “circumstances.” But if the senator could have drawn her out on that simple point, he could have amplified the tremors already setting in among the liberal backers of the nomination. Did Sotomayor understand then that it was quite consistent with Roe v. Wade to forbid abortions under “certain circumstances” – much in the way that the “fundamental right to marry” could still admit many plausible restrictions on the freedom to marry? Even people who called themselves “pro-choice” have thought that some abortions are unjustified and may rightly be forbidden. Is that what she meant by a constitutional right under “certain circumstances”? Set that simple proposition in place, and it sets the ground for the sure erosion of Roe v. Wade. The Court could simply confirm one justified restriction after another, until Roe could stand as a shell with most of the substance removed. Set that understanding in place, and there would be deep convulsions among the Democrats, along with deep fits in the White House.

We pleaded with the senator’s staff to distill things at least with one other question: Two-thirds of the Democrats in the Congress had voted against the bill on partial-birth abortion, and the president who appointed her opposed the move to protect a child who survived an abortion. In other words, her political allies did not think that the right to abortion found its limits even at the point of birth. Was that indeed an “open question” for the Court she was about to join? If she said no, she would have detached herself from the president and his party. If she said yes, the Republicans could have drawn this simple, but momentous point: that, instead of being deeply “settled,” the law on abortion was deeply “unsettled” in the sense of its most elementary limits.

These moves, so simple; and yet none of this was done. Lessons for the future: we need a “retreat” for some of the pro-life senators and their staffers, to get clear on their strategic purposes, before the next nomination, coming up rather soon.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.