Because the future of Roe v. Wade hangs in the balance with every Supreme Court personnel change, pro-choicers aren’t really feeling completely at ease with Sonia Sotomayor, whose opinion on the right to an abortion is largely unknown. She has never directly decided on it during her eleven-year tenure as a federal judge, and Robert Gibbs admitted yesterday that Obama has not asked Sotomayor about the issue. Even more alarming for groups like NARAL, Sotomayor has made rulings favorable to abortion opponents in cases that don’t directly deal with the constitutional right to abortion. And she was raised a Roman Catholic!
But it may not be time to consider abstinence just yet. Obama may not necessarily have required Sotomayor to pass a Roe v. Wade litmus test per se, but in an interview with Brian Williams last October, he revealed precisely how he would avoid another Souter Surprise:
Well, look, I I think that you what you can ask a judge is about their judicial philosophy. And as somebody who taught constitutional law for ten years, who actually knows a lot of the potential candidates for Supreme Court on the right as well as on the left ’cause I’ve taught with them or or interacted with them in some way I can tell you that how a Justice approaches their job how they describe the path of interpreting the Constitution I think can tell you a lot.
And so my criteria, for example, would be if a Justice tells me that they only believe the strict letter of the Constitution that means that they possibly don’t mean believe in a right to privacy that may not be perfectly enumerated in the Constitution but, you know, that I think is there....
And so I can have those kinds of discussions with a Justice without getting into the particulars of is Roe versus Wade, as currently outlined, exactly what you believe?
In other words, he probably got as litmus-test-y as one could without calling it a litmus test.