During the presidential campaigns, Barack Obama said that while “most of the time” conservative and liberal Supreme Court justices will arrive at “the same place.” He added:
…what matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one's broader perspectives on how the world works and the depth and breadth of one’s empathy.
President Obama has indicated that political views will be important in choosing the next Supreme Court justice; he is clearly not searching for a strict constructionist.
Last November, The Polling Company asked voters if they prefer a President to nominate justices to the Supreme Court and judges to the federal courts who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” or “take into account their own viewpoints and experiences” in deciding cases. Voters overwhelmingly voiced support for judicial restraint (70% to 22%). These numbers included Democrats (52%), unaffiliated voters (64%), and the majority of Republicans (79%).
Abortion—and the Roe v. Wade decision in particular—will be the main issue on which the Senate will focus while reviewing Supreme Court nominees. Pro-abortion organizations and liberal politicians are voicing their concerns that Roe v. Wade will be overturned. Important to note, however, is that, even if Roe v. Wade were overturned, abortion would not be banned. The pro-abortion Center for Reproductive Rights explained, “A Supreme Court decision overturning Roe v. Wade would not by itself make abortion illegal in the United States. Instead, a reversal would remove federal constitutional protection for a woman’s right to choose and give the states the power to set abortion policy.”
Supreme Court justices are appointed to their position for life. The procedure for appointing a justice is provided for by the Constitution (Article II, Section 2, clause 2), stating that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” The President and the Senate share that power. Also, although not mentioned in the Constitution, an important role is played by the Senate Judiciary Committee before the candidate is questioned by the full Senate.
Hence, the President of the United States first nominates a candidate for the position of Supreme Court Justice. Once the president releases the name of his nominee, the Senate holds hearings. Until the 20th century, these hearings were held behind closed doors. However, since 1930, the confirmation hearings have been completely open to the public. Since 1981, the hearings have even been televised. After the hearings, the Senate will then vote either to confirm or reject the candidate. The majority of Supreme Court nominees are approved by the Senate; only 12 out of 150 candidates have ever been rejected.
Justice David Souter has announced his retirement from the Supreme Court. He was not a strict constructionist and ruled many times in support of the constitutional right to abortion. President Obama has announced his nominee: Judge Sonia Sotomayor, a Yale Law School graduate and member of the United States Court of Appeals for the Second Circuit.
Judge Sotomayor seems to be a fairly stealth candidate, as can be expected from President Obama. Her thoughts on the Roe v. Wade decision are not clear. President Obama’s administration insists that they did not ask her about her views on abortion rights. However, they are confident that she agrees with the constitutional underpinnings of Roe v. Wade, which 36 years ago proliferated abortion rights nationwide.
According to a Washington Post article, “Sen. Barbara Boxer (D-Calif.), one of the Senate's leading abortion rights supporters, said she will not specifically ask Sotomayor about Roe but said she has no reason to doubt Sotomayor's position on the issue. ‘I feel as comfortable as I could possibly feel [with the nominee].’” Also quoted in the Washington Post article was George Pavia, a senior partner in the law firm that hired Sotomayor as a corporate litigator before she became a judge. The Post quoted him, “He thinks that support of abortion rights would be in line with her generally liberal instincts. ‘I can guarantee she’ll be for abortion rights.’”