From the exchanges that would emerge from this line of questioning, two critical points would be established, points that could transform the hearings:
(1) It would be clear that most people in the country — including many people who call themselves “pro-choice” — think that some abortions may be rightly regarded as unjustified, and rightly barred. And as it turns out, the law that has been shaped by the Supreme Court could be read as quite open to such restrictions on abortion in particular cases. It is arguable also that five of the justices now sitting would be willing to sustain those restrictions, depending on the case at hand. Does Judge Sotomayor understand the law in that way? Or does she think that the law springing from Roe v. Wade mandates nothing but abortion on demand, for any reason at all, at any time? If so — and if she could actually speak those lines — she would bring jolting news to many people in the country who know little about the state of the law. But if she reads the law as it actually stands now — a law open to restrictions on abortion in particular cases — that too would come as news to a large part of the public. It would also induce the most wholesome gnashing of teeth through all ranks of the Obama administration, along with a sinking feeling of buyer’s remorse among the most zealous supporters of abortion rights.
(2) Once it is clear that the law is open to restrictions on abortion in particular cases, the scene is set for the second and decisive step. The nominee could then make the point that she cannot pronounce today on the kinds of restrictions that would pass constitutional muster without virtually inviting the legislation — and the litigation — she would be asked to judge. End of the conversation on abortion — now and forevermore in judicial confirmation hearings. Any future Republican nominee questioned on the subject could simply cite the precedent of these hearings, cite the reasons given by Sotomayor, and stand on the same ground as she politely declines to discuss anything more about the matter of abortion.
That in itself would be no small public service. And if Judge Sotomayor happens to stumble in these conversations, if her answers are less than luminous, or if she falls into gaffes of a Bidenesque nature, the Left will suffer an embarrassment amply earned. Instead of elevating someone who could stand on the same plane as Scalia, Roberts, and Alito, offering counterarguments, they may simply be putting on the Supreme Court a caricature of liberal jurisprudence who will dangle there for 30 years. On the other hand, Judge Sotomayor may be as brilliant and as scrappy as her backers tell us she is. And in that case, the hearings could reveal to us the furnishings of mind of a talented jurist. That too would be no small thing, and not a bad day’s work for the Republicans on the committee.
– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and was the architect of the Born-Alive Infants Protection Act.