Republicans Might Have Little Traction To Oppose Obama Supreme Court Nominee Based On Abortion

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 14 May 2009 - 2:00 PDT

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Republican leaders might have little traction to use abortion issues to oppose President Obama's nominee to replace retiring Supreme Court Justice David Souter, even though the president is expected to select a nominee who supports abortion rights, Slate reports. According to Slate, Sens. Orrin Hatch (Utah) and Jeff Sessions (Ala.), the leading Republicans on the Senate Judiciary Committee, have "lowered expectations" that the GOP can mount a successful fight against Obama's selection, and thus far, the "two usual suspects -- gay rights and abortion -- are getting only scattershot, tentative play." Hatch said that if Obama chooses a nominee "in the mainstream," the president will "probably have a pretty easy time" winning confirmation. Hatch also said that it would be a "real dilemma" for Republicans to oppose two women who are considered potential candidates, Solicitor General Elena Kagan and appellate Judge Sonia Sotomayor. However, some GOP members are using abortion-related issues in attacks against another possible candidate, Judge Diane Wood of the Seventh Circuit Court, Slate reports.

Hatch has said that Wood is "so sympathetic to issues like abortion rights that she even applied it in racketeering laws" during her involvement with the case NOW v. Scheidler. In the case, the National Organization for Women and two abortion providers sued the Pro-Life Action Network over tactics antiabortion-rights protesters used to attack and disrupt abortion clinics in the 1980s. The plaintiffs sued PLAN under a federal racketeering law, arguing that the protesters' planning, threats and destruction amounted to extortion. Although Wood "ruled repeatedly against the protesters" based on the extortion statute, "if you drill down through the layers of litigation, Scheidler doesn't make for much of a Republican sound bite," Slate reports. The Seventh Circuit threw out the case in 1992, before Wood was on the court, but in 1994 the Supreme Court reversed the ruling and sent it back to trial. In the new trial, a jury found PLAN liable for violating extortion law, and the trial judge banned PLAN from interfering in abortion clinic operations. Wood and the other judges on the panel approved this trial ruling, but in 2003 the Supreme Court voted 8-1 to reverse it.

Although Wood might have appeared to be going "out on a limb" when she approved the trial ruling, she did not think the Supreme Court had previously addressed the issue and therefore based her decision on her own circuit's past rulings, which is "correct and standard operating procedure in the appeals courts," Slate reports. In addition, prior to the 2003 Supreme Court ruling, Congress approved the Freedom of Access to Clinic Entrances Act, which made it possible for clinics to pursue litigation against protesters without having to resort to racketeering laws. Regardless, Republicans "[u]ndoubtedly" will attempt to use Scheidler as leverage to oppose Wood if Obama selects her as a nominee, although "maybe that only goes to show how few wedges they have to work with," Slate reports (Bazelon, Slate, 5/12).

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