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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 are important in choosing a Supreme Court justice; he clearly does not search for strict constructionists.
In November 2008, 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 the majority of Democrats (52%), unaffiliated voters (64%), and Republicans (79%).
Abortion—and the Roe v. Wade decision in particular—is usually the main issue on which the Senate focuses while reviewing Supreme Court nominees. Pro-abortion organizations and liberal politicians have voiced 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.
In August 2009, Sonia Sotomayor was confirmed as a U.S. Supreme Court justice to replace the retired Justice David Souter. She is a Yale Law School graduate and was a member of the United States Court of Appeals for the Second Circuit. Throughout the nomination and questioning process, Justice Sotomayor proved to be a fairly stealth candidate, as could be expected from President Obama, and in particular, her thoughts on the Roe v. Wade decision had not been clear. However, those who supported her nomination made her position quite clear. Among other pro-choice organizations, she won the endorsement of NARAL Pro-Choice America.
In August 2010, Elena Kagan was confirmed as a U.S. Supreme Court justice to replace Justice John Paul Stevens. She was a Harvard Law School graduate and served as Solicitor General for President Obama. During the Clinton Administration, Kagan played a key role in ensuring that the partial-birth abortion ban would be rejected. When the U.S. Supreme Court decided to strike down the 2000 Nebraska partial-birth abortion ban, they cited in part the statement from “a select panel” on the American College of Gynecologists (ACOG), in which the group stated that the procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” Kagan suggested that exact language to the ACOG. Therefore, this influential language was not based on any medical evidence. The original language stated that the ACOG “could identify no circumstances under which this procedure. . . would be the only option to save the life or preserve the health of the woman.” Kagan’s distortion of the scientific data is extremely troubling. This ACOG language was one of the major hurdles faced by Justice Department lawyers. Not only was her pro-abortion stance clearly obvious, but her integrity was certainly in question.