Pres. Barack Obama has written and spoken a great deal about the type of Supreme Court justice he wants to appoint. In his 2006 political memoir, The Audacity of Hope, he outlined his judicial philosophy. “It is unrealistic,” he wrote, “to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.” Obama prefers judges from the school that regards the Constitution as “not a static but rather a living document, [which] must be read in the context of an ever-changing world.”
In various forums, he has spoken of appointing someone who has “empathy.” On one occasion, during a 2007 presidential debate, he expressed a preference for judges who “have life experience and . . . understand what it means to be on the outside, what it means to have the system not work for them.”
Pollster Kellyanne Conway recently conducted a survey comissioned by Americans United for Life to measure public opinion about Obama’s impending choice of a replacement for retiring Supreme Court Justice David Souter. What is most interesting about her poll is that respondents reject precisely the kind of nominee that President Obama is almost certain to pick. Far from preferring “empathy,” 92 percent of Republicans, 86 percent of Independents, and 84 percent of Democrats said they prefer a nominee who “will interpret the law as it is written and not take into account his or her personal viewpoints and experiences.”
But Conway’s most striking finding is just how out of touch President Obama is on the huge, hot-button issue that always plays an oversized role in Supreme Court confirmation hearings: abortion. Few Supreme Court cases deal with the topic, but abortion is remarkably important to a large number of people on both sides of the issue — important enough, in this case, that Americans United for Life commissioned Conway’s survey.
Discussion of the Roe v. Wade abortion decision, the principle of stare decisis with respect to that decision, and even the idea of “super-duper stare decisis” was everywhere during the confirmation processes of Chief Justice John Roberts and Justice Samuel Alito. This was not a new development. In Souter’s own 1990 confirmation hearing, Roe played a critical role, with both sides misinterpreting his inexplicit position.
Conway’s poll suggests that a vast majority of Americans want President Obama to nominate someone who disagrees with nearly everything he believes about abortion. Of those surveyed, 82 percent said they oppose a nominee who “supports late-term abortions, which are abortions in the seventh, eighth or ninth months of pregnancy and are also known as ‘Partial-Birth Abortions.’” When the Supreme Court upheld a congressional ban on partial-birth abortion in 2007, then-candidate Obama said that even such a modest restriction on abortion is completely unacceptable:
This ruling signals an alarming willingness on the part of the conservative majority to disregard its prior rulings respecting a woman’s medical concerns and the very personal decisions between a doctor and patient. I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women.
In the new poll, 69 percent said they do not want a new justice who opposes “making it illegal for someone to take a girl younger than the age of 18 across state lines to obtain abortions without her parents’ knowledge.” Then-senator Obama voted against precisely such a ban in 2006, known as the Child Custody Protection Act. The bill received 65 Senate votes, including those of many pro-choice Democrats.
Seventy-one percent said they oppose a justice who “favors using tax dollars to pay for abortions here in the United States,” and an even higher percentage said they oppose using tax dollars to pay for abortions abroad. President Obama’s record demonstrates that he favors both. As a state senator in Illinois, he voted twice (in 1998 and 2000) to preserve Medicaid funding for abortion. He supports the Freedom of Choice Act, which would strike state prohibitions on abortion funding. And as president, he has effectively allowed the funding of abortion abroad by rescinding the Mexico City policy.
The poll, of course, reflects what several others have also reported. Pew, Gallup, and Fox News surveys released within the past month indicate that Americans are increasingly averse to abortion, and (according to Gallup) want to see it legal in fewer circumstances than at any time since Roe v. Wade.
Conway’s survey asked Americans whether they agreed that “abortions should be allowed at any time during a woman’s pregnancy, and for any reason” — which is, essentially, Obama’s position. Only 7 percent of respondents supported it. But American voters do not get to choose the next Supreme Court justice; the responsibility for that rests with President Obama.
Editor’s note: Changes were made to this piece shortly after publication.