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Shouts From the Gallery

by DAVID ROSEN

The first two days of the Senate hearing on Sonya Sotomayor’s confirmation to the U.S. Supreme Court were remarkable for the noticeable downplaying of culture or values issues.

With the exception of a handful of anti-abortion protester disruptions, including by Norma McCorvey, the “Jane Roe” of Roe v. Wade, culture-war issues have been noticeably absent from the hearings. So far, Sen. Dianne Feinstein is the only senator to seriously raise the issue of abortion. Sotomayor insisted that, as a staunch adherent to Court precedent, Roe is established law and, therefore, she affirms it.

Abortion, gay marriage and pornography were the litmus test of judicial standards for more than two decades. Senate Supreme Court confirmation hearings were long fought over an omni-present question: Are you or are you not in favor of Roe?

An analogous challenge was posed a half-century earlier: Are you or are you not a Communist? The abortion issue was noticeably absent from the first two day’s festivity in democracy.

The absence of abortion or other “values” issues in the Sotomayor hearing is important for two reasons. First, it indicates just how far the political debate has shifted away from the Bush-Christian right’s anti-sex agenda. Second, and perhaps more troubling, it reveals just how little Sotomayor has written or spoken about a woman’s right to medical privacy, abortion or Roe. In fact, she has issued only one opinion that tangentially touched on abortion and in that decision supported Bush administration anti-abortion policy.

* * *

Much of the first-day’s hearing was devoted to retelling Sotomayor personal story. Her life fulfills the American dream. She was shaped by the great social lottery: genes, family circumstance & chance. She’s the million-dollar winner, the exception that proves how rigged the system really is. Like the Barack and Michelle Obama stories, the American genius is the ability to replenish generation after generation of a national leadership by carefully, selectively drawing from all walks of life. For those who do not win this social lottery, life is a free fall.

Those who succeed, like Sotomayor and the Obamas, become managers of the very system that they once questioned, if not challenged. They seem to critically know the nation’s shortcomings. They exemplify moderate, pragmatic 21st century ruling class America. And as they reshape the corporate capitalist system, they are reshaped by it.

Sotomayor’s Puerto Rican heritage and working-class origins were repeatedly invoked. So too was the fact that she attended a Bronx Catholic high school. However, little was made of her Catholicism.

It is unclear as to her current religious affiliation. Senators have not raised this issue. Long forgotten, the American political elite assailed Catholics as un-American. As recently as 1960, when John Kennedy ran, fear of the influence of the Pope was raised as a campaign issue.

While born and raised a Catholic, Sotomayor is a divorcee. Perhaps a lapsed Catholic?; likely still some type of believer? If confirmed, she will become the sixth Catholic on the Court, joining Justices Roberts, Alito, Anthony Kennedy, Antonio Scalia and Clarence Thomas. A Catholic Court, what does that say about America?

Over her 17-year career on the federal bench, Sotomayor has not dealt directly with the issue of abortion. However, in 2002, she ruled on what is known as the Bush administration’s “Mexico City Policy,” a program barring the use of federal funds by foreign organizations to provide abortion information and services. In Center for Reproductive Law and Policy v. Bush, Sotomayor ruled in favor of the Bush administration, arguing that the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

At the Senate hearing, Feinstein voiced particularly alarm over the contentious 1992 battle known as Planned Parenthood of Southeastern Pennsylvania v. Casey, then the Pennsylvania governor. In that case, the Supreme Court upheld a woman’s right to an abortion, but tightened restrictions relating to informed consent, parental notification and waiting period.

She was especially critical of the earlier confirmation hearings for John Roberts (in 2005) and Samuel Alito (in 2006). Rambling on in the way an America political aristocrat tends to do, she observed, “I’ve found it increasingly difficult to know, from answers to questions we ask from this dais, how a nominee will actually act as a Supreme Court justice, because answers here are often indirect and increasingly couched in euphemistic phrases.”

Feinstein is painfully correct.

The Roberts and Alito confirmation hearings were framed by the demands of the Christian right. Two issues dominated: judicial activism and moral values. Most stunning about the Sotomayor hearing, moral or values issues like abortion and gay marriage have been absent from the questioning. Warnings of judicial “activism” were invoked by numerous Republicans and systematically discredited by Democrats; they argued that one’s political opponent is always the activist.

These Bush-era hearings were remarkable in that both nominees, in effect, lied to the Senate and the American public.

Drawing from the Karl Rove-school of political misinformation, both nominees engaged in obfuscation and falsification. Neither spoke the truth. They said what they were told by their White House handlers. And it worked. When confirmed, they took up the extremist conservative positions that everyone but the Senators knew they would adopt. It remains to be seen whether the same will be said about Sotomayor; only time will tell.

The first-day’s hearing was devoted to retelling Judge Sotomayor’s life story. It represents the fulfillment of the American dream. Her Puerto Rican heritage and working-class origins were repeatedly invoked. So to was the fact that she attended a Bronx Catholic high school.

It is unclear as to her current religious affiliation. While born and raised a Catholic, she is nonetheless a divorcee and may well be a lapsed Catholic. If confirmed, she will become the sixth Catholic on the Court, joining other Catholic Justices Roberts, Alito, Anthony Kennedy, Antonio Scalia and Clarence Thomas.

Over her 17-year career on the federal bench, Sotomayor has not dealt directly with the issue of abortion. However, in 2002, she ruled on what is known as the Bush administration’s “Mexico City Policy,” a program barring the use of federal funds by foreign organizations to provide abortions. Sotomayor ruled in favor of the Bush administration that, in Center for Reproductive Law and Policy v. Bush, the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

So far, no Senator directly challenged Sotomayor over the issue of a woman’s right to an abortion. Nor has any Senator raised “values” concerns like gay marriage, teen sex or pornography; issues which can be reframed into Constitutional issues like state rights, age-of-consent and free speech. The Christian right agenda, the culture wars, is slowly vanishing from the nation’s political discourse. This is one lesson of the Sotomayor hearing.

DAVID ROSEN is the author of “Sex Scandals America: Politics & the Ritual of Public Shaming” (Key, 2009); he can be reached at drosen@ix.netcom.com.

 

 

 

 

 

 

 

 

 

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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