CIPHERS

02.22.16 5:01 AM ET

Have Obama’s Supreme Court Picks Really Been Silent on Abortion?

There’s no public record of several jurists discussing the court’s most divisive opinion: Roe v. Wade. But the ‘abortion question’ is part of the problem of how we pick jurists.

All of President Obama’s likely Supreme Court nominees, even those whom he hopes some Republicans would support, appear to have been completely silent on the most divisive Supreme Court decision in America today: Roe v. Wade.

The most likely candidates, according to conventional wisdom, anonymous sources, and Vice President Biden appear to be federal circuit court judges who previously and recently enjoyed unanimous approval by Republicans in the Senate.

Several people meet those criteria: Judges Jane Kelly (96-0, 2013), Srikanth Srinivasan (97-0, 2013), Adalberto Jordan (94-5, 2012), Paul Watford (61-34, 2012), and Patricia Ann Millett (53-38 in 2013, but the votes against were not about her personally but about Obama’s alleged “packing” of the D.C. Circuit).

Of these, none has made public comments on abortion rights, according to research by The Daily Beast. Reading the tea leaves, Judge Watford has a background in law enforcement and corporate law, and is least likely to have opined about Roe v. Wade. Judge Jordan is a former altar boy recently honored by a Catholic organization in Florida, but that no more means he follows the church on abortion than Justice Sotomayor, a fellow Hispanic Catholic, does.

There is good reason for this silence. For a Republican senator to vote to confirm a judge who explicitly believes in Roe could be political suicide, particularly in a primary—and especially if voters are paying more attention to the Court this year than they usually do.

Thus pre-nomination vetting and post-nomination hearings are a kind of theatrical performance. It is self-evident that liberal jurists are likely to favor upholding abortion rights, and conservative ones likely to favor limiting or even overturning them. But a series of gestural performances have become customary over the past 20 years that operate much like legal fictions do: we all know they’re bogus, but we pretend as if they aren’t because that enables the system to function.

For example, some nominees say, implausibly, that they haven’t given the issue much thought because it hasn’t been before them as a judge or lawyer. Others say they cannot comment on general issues, only on the specific cases that will come their way.

 Still others simply punt and say that Roe is settled law, and they will uphold settled law unless a future case persuades them to change it. Which is to say, they’ll do their jobs.

There are examples on both sides of the aisle. John Roberts notoriously refused to give his opinion of Roe when pressed by Democratic senators. Miguel Estrada, a conservative candidate George W. Bush nominated for the D.C. Circuit, said only “I hold no personal views that would prevent me from doing my judicial duty to follow the precedent set down by the Supreme Court.” That wasn’t enough for Democrats, who stalled the nomination for two years before Estrada withdrew.

On the other side, Justice Sonia Sotomayor dodged questions about Roe. Conversely, Judge Diane Wood came under fire from pro-life organizations in her 2010 confirmation battle for being “extreme” and “pro-abortion” simply for opining that so-called “partial-birth abortions” are constitutional under Roe (and, perhaps, for having clerked for Justice Blackmun, the author of Roe).

In a way, though, the “abortion question” is itself part of the problem. It implies that one’s views on abortion rights are a kind of opinion, or personal belief. That, itself, is pro-life logic. Jurisprudentially, Roe v. Wade rests (more or less) on the notion of a right to privacy being in the “penumbra” of the Bill of Rights, and the doctrine of “substantive due process.” 

To the endless chagrin of conservatives, this doctrine is not literally in the Constitution (and is arguably an oxymoron: how can a process be substantive?). But it’s not argle-bargle either. (Indeed, in a case involving child custody, even Justice Scalia agreed with it in principle, though he defined it so narrowly as to be of little use in practice.)

Essentially, the doctrine holds that when the government tries to infringe upon certain liberties, no process can be due. There’s no duly procedural way for the government to prevent a two adults of different races from marrying, to intrude on two consenting adults’ sexual activity, to tear a family apart against its will, or to force adults to educate their children in public school.

And there’s no duly procedural way for the government to control a woman’s uterus, at least prior to a fetus being viable outside of the womb (when it, legally, becomes a person). 

Understood properly, Roe is not some anomalous case that serves as a litmus test of liberalism. It is about whether there are limits to the state’s power that forbid the government from taking certain actions, no matter what. And if that sounds more like Ted Cruz than Bernie Sanders, that’s because substantive due process actually began as a conservative doctrine, and was used for decades to strike down progressive economic regulations like the minimum wage. Ironically, now it is conservatives who criticize liberals for saying that government must be restrained when it comes to abortion.

In a way, then, the euphemisms we use to refer to abortion may actually be more useful than speaking of abortion directly. If the Constitution is a “living document,” as liberals hold, then substantive due process can expand to include new rights such as same-sex marriage. But if the Constitution must be read “strictly and narrowly,” then there’s less elastic in the doctrine and perhaps even Roe went too far.

Such euphemisms may seem like evasions, and on one level they are, since they’re “really” about abortion. But they do get one thing right: that reproductive rights are but one of a profound set of questions about the boundaries of government and liberty.