Abortion and gay marriage complicate high court pick

Even as President Obama flies to the University of Notre Dame this weekend to give a commencement speech that promises to be marked by bitter abortion protests, he will be grappling with one of the most critical decisions of his presidency.

With a new poll out Friday showing that for the first time a majority of Americans call themselves “pro-life,” the decision of whom to nominate to the U.S. Supreme Court has grown even more complex.

Obama is determined to avoid a “culture war” over the choice, White House aides and Democratic lawyers say, and he hopes to select a candidate who will not galvanize conservative activists over wedge issues such as abortion and same-sex marriage.

With that in mind, the White House is poring over the records of leading candidates for the high court, looking for potential flash points. That could lead to problems for some who are thought to be on Obama’s short list.


For example, Judge Diane P. Wood, a veteran of the U.S. 7th Circuit Court of Appeals in Chicago, has a strong record in support of abortion rights. She was a law clerk to Justice Harry Blackmun, the author of the Roe vs. Wade opinion, and she dissented when the appeals court upheld Wisconsin and Illinois bans on a late-term abortion procedure called dilation and extraction, which opponents call “partial birth” abortion. She also wrote an opinion reviving a lawsuit against the leaders of the antiabortion group Operation Rescue for using violence and “human blockades” to shut down abortion clinics. But the Supreme Court unanimously reversed her opinion in 2006.

As the Democratic governors of Michigan and Arizona, respectively, Jennifer M. Granholm and Janet Napolitano -- two other potential court candidates -- vetoed state bans on dilation and extraction. (Napolitano is now secretary of Homeland Security.)

Americans United for Life, an antiabortion group, issued its evaluation of the abortion records of nine potential nominees to the high court. Charmaine Yoest, the group’s president, called them “radically pro-abortion.”

Obama has been a steady defender of the Roe decision and the right to abortion generally. But he has long sought to defuse tension over the issue.

Abortion-rights rhetoric was largely absent from his presidential campaign, and he has been seeking some middle ground.

The White House launched an effort last month to bring abortion-rights opponents and supporters together to craft policies on reducing unwanted pregnancies and limiting demand for abortions.

“I believe that women should have the right to choose, but I think that the most important thing we can do to tamp down some of the anger surrounding this issue is to focus on those areas that we can agree on,” he said at a news conference.

With four potential votes on the court to overturn Roe, abortion-rights groups such as NARAL Pro-Choice America say they are confident Obama will choose a strong advocate, even if the nominee’s public stance on the issue isn’t immediately apparent.

“I have every confidence this president will nominate someone who is going to have a clear record of supporting Roe,” said NARAL President Nancy Keenan. “He will not flinch on that front.”

Others who know Obama say he also wants to avoid a battle over same-sex marriage.

“It seems to me Obama is trying very hard not to be cast as a liberal. He wants to avoid triggering a culture-war attack,” said University of Chicago law professor Geoffrey Stone. “On abortion, he will not want to appoint someone who has taken an inflammatory position.”

That may be one reason why some academics such as Stanford University law professor Pamela Karlan aren’t being more strongly considered. Karlan has a body of work that speaks loudly on abortion and same-sex marriage.

“Gays have come out of the closet,” Karlan said last year, “and women who’ve had abortions have gone back into the closet.”

Karlan referenced her outspokenness in an address at Stanford on Wednesday.

“Would I like to be on the Supreme Court? You bet I would,” Karlan said.

“But not enough to have trimmed my sails for half a lifetime.”

U.S. Solicitor General Elena Kagan may benefit from having a limited public record. Kagan, the former Harvard Law School dean and Clinton White House aide, has no such baggage -- and has received support from liberals and conservatives.

With an academic background in regulatory law, she has largely stayed away from hot-button cultural issues. Like Chief Justice John G. Roberts Jr., who was nominated to the court in 2005, Kagan does not have an extensive paper trail of legal scholarship.

Another reported finalist, appeals court Judge Sonia Sotomayor of New York, has ruled in just a pair of abortion- related cases despite a long career in the federal courts.

Nearly 20 years ago, Judge David H. Souter of New Hampshire emerged as President George H.W. Bush’s nominee in part because he had no public record on abortion. (Souter proved to be a supporter of the Roe decision, which disappointed Republicans.)

But politicians like Granholm and Napolitano have had to take a public stand.

Michigan Gov. Granholm twice vetoed bills that sought to ban late-term abortions. She refused to sign one last year because it contained no exception for the health of the mother.

A Catholic, Granholm has tried to straddle the issue. During her reelection campaign, she released a televised ad in which she said that she personally opposed abortion, but believed the choice should be left to the pregnant woman and her physician.

She opposed an initiative to legalize same-sex marriage because, she said, she feared it would lead to the elimination of domestic-partner benefits.

Last year, as governor of Arizona, Napolitano vetoed a ban on dilation and extraction procedures and also a measure that would have required parental consent for some teenagers to have an abortion.

And more recently, she angered antiabortion groups after a Homeland Security report on right-wing extremism said that some such groups could pose a threat.

Napolitano has since apologized for the report.

California Supreme Court Justice Carlos R. Moreno does not have a clear public record on abortion, but he could trigger opposition from conservatives on the issue of same-sex marriage.

Last year, he voted with a 4-3 majority to give gays and lesbians a legal right to marry in California, and in November, he was the only state justice who voted to block Proposition 8, the state voter initiative that restored a ban on same-sex marriages.