Cathy Ruse at Family Research Council has worked up an exceedingly good line of questioning for the Sotomayor hearings, based upon Judge Sotomayor’s comments from the bench at oral argument during one of the federal Partial-Birth Abortion case appeals on the Second Circuit in New York in 2004.
In the case, National Abortion Federation v. Ashcroft, the National Abortion Federation claimed that partial-birth abortion was the safest abortion method in some cases and therefore the law banning the practice was unconstitutional. The Department of Justice requested the medical records to back up this claim with all identifying information regarding the patients removed. The partial-birth abortionists refused to provide any records with evidence to support their claim. As Cathy says: “This was tantamount to arguing that they should win the case on their word alone.”
The District Judge ruled that the abortion providers should produce the medical records. That decision was appealed to the Second Circuit Court of Appeals. Judge Sotomayor sat on the appellate panel. During oral argument, according to the Associated Press (April 22, 2004), she stated: “I just don’t understand what the records will prove in this case.”
Says Cathy: “What the records would prove is whether or not the partial-birth abortion doctors were telling the truth. It is irresponsible for a judge to insist that one side in a case merely be taken at its word, especially when evidence is readily available to corroborate or impeach its statements. Appellate courts are particularly unsuited to second-guessing the decisions of the trial court regarding evidence of this nature.”
She is correct, and moreover, this fits the very disturbing pattern of Judge Sotomayor, by her own admission, seeing “the facts [she] choose[s] to see” in a legal case.
I hope that at least one Senator will ask Cathy’s questions:
Does Judge Sotomayor believe the abortion industry should be excused from having to prove its case in court when it sues to strike down a duly-enacted abortion regulation?
Does she believe medical records are relevant and admissible as a general matter but not if they involve abortion?
Does Sotomayor have such great faith in abortion providers that she is willing to accept their verbal claims as fact and impose them as a matter of law?