Bench Memos

Overemphasis on Abortion in Confirmation Hearings: A Response to Adam Liptak

Adam Liptak had an extensive article in Monday’s New York Times on a recent study of the questions and answers in Supreme Court nomination hearings between 1939 and 2009. In an early paragraph, Liptak claims that the study, which was done by political science professor Paul Collins of the University of North Texas and professor Lori Ringhand of the University of Georgia law school, “refutes the common mistaken belief that questions about abortion rights have played a dominant role in confirmation hearings since Roe v. Wade was decided in 1973.”

First of all, Liptak doesn’t cite anything to substantiate his claim that this belief is common. Second, the charge by law professors and political scientists since the 1980s has been that abortion plays a disproportionate role in the selection and evaluation of Supreme Court nominees, which is not the same thing as saying that the issue plays too large a role in the Q & A in the hearings themselves.

But, even given the study’s narrow focus on confirmation-hearing Q & A, the data published in the New York Times, far from refuting it, gives credence to the claim that abortion has played a dominant role in these hearings since 1973.

In the chart accompanying the article, it says that abortion-related questioning has constituted 5 percent of confirmation-hearing discussion. But that figure is only so low because it includes nomination hearings between 1939 and Roe in 1973. Few people thought that abortion might be a “constitutional right” until the eve of the case; thus, no one would expect there to have been much questioning on the subject before the 1970s.

Looking at more recent hearings, it’s clear that abortion has taken a substantial percentage of time — in O’Connor’s confirmation hearings it made up 18 percent of the discussion, in Souter’s 12 percent, in Thomas’s 9 percent, in Alito’s 14 percent, and in Sotomayor’s 7 percent. In Bork’s case, it was well-reported at the time that “privacy” — considered a separate category for the purposes of the Collins-Ringhand study — cloaked underlying concerns about abortion. Thus, the bare percentages for specific nominees since the O’Connor hearings in 1981 contradict Liptak’s analysis and conclusions.

Why is this important? Because the Court’s constitutionalization of the abortion issue has had many serious negative ramifications, including undue focus on abortion as a judicial issue and the removal of the issue from the hands of the American people. Hundreds of other critical questions concerning constitutional law, federal statutory law, and the administration of justice are not given sufficient attention, because the Court has become the national abortion-control board. The Collins-Ringhand data, properly read, reinforce that charge rather than undermine it.

Since the court has assumed the role of national abortion-control board, its stewardship of that public-health problem is a serious issue, but it would have been better for the administrative of justice if the court had left the abortion issue where the Constitution left it — with the American people acting through their elected representatives.

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