Supreme Court nominee Sonia Sotomayor sidestepped questions on abortion, gun rights and gay rights Wednesday -- including whether a state could forbid aborting a 38-week-old fetus -- leaving both conservative and liberal activists troubled.
Sotomayor, relying on her long judicial record, gave detailed explanations of her court decisions but steadfastly refused to engage Republicans who were interested in her views on abortion, the 2nd Amendment and same-sex marriage. She dismissed as "abstract" questions of whether a state could limit late-term abortions or whether advances in medical care for premature babies could curb the period of time when abortion is legal.
She also said she could not venture a view on whether the Constitution's "right to bear arms" puts limits on state and municipal guns laws, and she refused to say whether the court could strike down a state's ban on same-sex marriage.
President Obama's nominee followed the pattern set over the last two decades by high court nominees, who have sat through hours of questioning but refused to talk about their thinking on controversial subjects. The result has been that senators and the public learn surprisingly little about the ideas and views a nominee will bring to a lifetime seat on the court.
On abortion, Sotomayor said she saw Roe vs. Wade as "settled law," a phrase used by earlier Republican nominees. She also noted the court had said states could not put an "undue burden" on pregnant women who sought an abortion before a fetus reached "viability," meaning the baby could live on its own.
But beyond that, she demurred.
Sen. Tom Coburn (R-Okla), an obstetrician and fierce opponent of abortion, asked about a woman who was 38 weeks pregnant and discovered the fetus had a "small spina bifida sac . . . on the lower part of the back." He asked: "Would it be legal in this country to terminate that child's life?"
"I can't answer that question in the abstract," Sotomayor said. She said she would need to look at the state's law to see whether abortions of viable babies were prohibited. "The question is: Is the state regulation regulating what a woman does an undue burden?" She added that she "probably couldn't opine" on whether such an abortion could be prohibited.
Since the Roe ruling in 1973, the Supreme Court has suggested that late-term abortions could be banned, so long as there were exceptions to protect the life or health of the mother. But it has not ruled squarely on such a prohibition.
Coburn then asked whether advances in technology could push back the period when abortion is legal. He cited a report of a premature baby born at 21 weeks that survived. In the past, it was said the point of viability was about 24 weeks.
Could such medical advances "have any bearing as we look at the law?" Coburn asked.
"I can't answer in the abstract," Sotomayor said again. "I can't because that's not a question the court reaches out to answer."
Sotomayor told Sen. John Cornyn (R-Texas) that she did not know why some liberals said she strongly supported abortion rights, and she told Sen. Jeff Sessions (R-Ala.) that she did not know the Puerto Rican Legal Defense and Education Fund had filed a Supreme Court brief in favor of taxpayer-funded abortions while she was on the group's board.
For the most part, Democrats refused to press Sotomayor to reveal her views. They defended her for standing on her record as an experienced, moderate judge.
But advocates who closely follow the abortion issue said they were disturbed by Sotomayor's reticence.
Dr. Charmaine Yoest, president of Americans United for Life, derided the judge for "seeming to forget or purposefully mislead the committee on her pro-abortion record. . . . A vote for Judge Sotomayor is a vote for unrestricted abortion-on-demand without any common-sense restrictions."
Nancy Northup, president of the Center for Reproductive Rights, criticized Sotomayor for not voicing support for a "woman's fundamental right to abortion." With the exception of Sen. Dianne Feinstein (D-Calif.), she faulted the Senate Judiciary Committee for not forcing the nominee to explain her views on abortion.
Sotomayor "largely stuck to the script," Northup said.
"For more than a generation, the Senate has been part of a conspiracy of silence on judicial nominees' views on abortion rights," Northup said.
On gun rights, Sotomayor refused to say whether she thought the 2nd Amendment's "right to bear arms" applied to state and local laws. Last year, the Supreme Court struck down a handgun ban in the District of Columbia and ruled for the first time that individuals had a right to have a gun for self-defense. Justice Antonin Scalia said "the inherent right to self-defense has been central to the 2nd Amendment right."
But since the District of Columbia is under federal jurisdiction, that decision left open the question of whether the 2nd Amendment also restricts state and municipal gun control laws. In the 19th century, the high court said the 2nd Amendment applied only to the federal government.
When Coburn asked whether all Americans had a right to self-defense, Sotomayor appeared to draw a blank.
"I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one," she said.
Later, when Sessions asked her about a city law that would "eliminate all guns," Sotomayor said she could not comment because that issue was pending on appeal before the high court in a case from Chicago.
Sotomayor also steered clear of questions involving the federal Defense of Marriage Act and bans on same-sex marriage. Both are being challenged in lower courts, and the Supreme Court will have to rule eventually on whether the federal government can limit benefits for same-sex couples who are legally married.
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In her own words
On the third day of her Senate confirmation hearing, Supreme Court nominee Sonia Sotomayor spoke about the role of judges and her fidelity to the law. Here are some excerpts:
On choosing cases
"We don't make policy choices. That means that I would think it inappropriate for a court to choose a case, or for a judge to choose a case, based on some sense of 'I want this result on society.' A judge takes a case to decide a legal issue."
On the Constitution
"The words are the words. The court can't be looking to ignore the words or to change them. What it does is apply those words to each situation."
On her judicial temperament
"I think that most lawyers who participate in arguments before me know how engaged I become in their arguments in trying to understand them. . . . That can appear tough to some people, because active engagement can sometimes feel that way. But my style is to engage as much as I can so I can assure myself that I understand what a party is intending to tell me."
On legal precedents
"That's what precedents do. They provide a framework. The Constitution remains the same; society changes. The situations [brought] before courts change, but the principles are the words of the Constitution, guided by how precedent gives or has applied those principles to each situation, and then you take that and you look at the new situation."
On the "necessary state of flux" of the law
"It's not that it's important to the law as much as it is that it's what legal cases are about. People bring cases to courts because they believe that precedents don't clearly answer the fact, situation, that they're presenting in their individual case. . . . If law was always clear, we wouldn't have judges. It's because there is indefiniteness not in what the law is, but its application to new facts that people sometimes feel it's unpredictable."
On her influences
"I was influenced so greatly by a television show in igniting the passion that I had as being a prosecutor, and it was 'Perry Mason.' . . . That TV character said something that motivated my choices in life and something that holds true. . . . Defense attorneys serve a noble role, as well. All participants in this process do: judges, juries, prosecutors and defense attorneys. We are all implementing the protections of the Constitution."