Kmiec on Sotomayor: Talking Points for Catholics

Doug Kmiec, Professor of Law at Pepperdine,has emerged in the wake of President Obama's inaugration, as an omnipresent, self-appointed   spokesman for the White House on issues of concern to Catholics. Now Kmiec  has jumped into the recharged judicial confirmation battle with what amounts to a series of talking points designed to convince Catholics that they can trust the  nominee, Judge Sonia Sotomayor. In the National Catholic Reporter, Kmiec opens his defense of the president's choice with this  assertion:"Judge Sotomayor is a moderate."

Indeed, Kmiec believes the "left" might have a problem with Sotomayor, though the initial reaction to the news of her appointment has not prompted an outbreak of liberal attacks. 

"One possible objection to Judge Sotomayor from the left will be her Catholic faith. There are already five Catholics on the court, it will be said. When the court upheld Congress’ limits on the partial-birth abortion ban, there were more than a few grumbles that it's just those Catholics having their way." 

in fact, commentators have struggled  to confirm whether Sotomayor is a practicing Catholic, so it's too soon to say whether her faith could become an issue. This breaking news posted on Beliefnet offers a somewhat ambiguous picture: "Another White House official elaborated slightly, "Judge Sotomayor was raised as a Catholic and attends church for family celebrations and other important events."

 On the other hand,  Nan Aron, president of the Alliance for Justice, a left-wing advocacy group that led the charge against the nomination of John Roberts and Samuel Alito, both Catholics, has said she is "thrilled" with Sotomayor's nomination. 

 And what about the right? Kmiec can already see the storm clouds gathering among pro-life forces:

"it wouldn't be a confirmation proceeding unless someone on the right also attempted to make an issue of abortion as well. That's more than unfortunate given how 99.9 percent of the court's work has nothing to do with the subject, and given the present stasis of you [sic] jurisprudence, even .01 no doubt overstates the likelihood of the Court moving either way on that topic."

Abortion: a non-issue? Was Kmiec on sabbatical during the confirmation battles when the nominees' pro- or anti-abortion bona fides dominated the airwaves?  

To establish Sotomayor's credentials as a "moderate," Kmiec turns to Exhibit A -- a past ruling [Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002)] in which Sotomayor upheld the "Mexico City Policy"-- dubbed the "Global Gag Rule" by abortion rights advocates -- against a challenge that contended the policy violated the First Amendment, due process, and equal protection. Sotomayor's ruling followed legal precedent established in a previous Second Circuit’s decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development. The Mexico City Policy banned the use of federal funds for foreign groups advocating or providing abortions, and was initially established by President Reagan. Clinton and, most recently, Obama, both repealed the policy. 

Here's what Kmiec says about the nominee's ruling:

"So when the Mexico City policy was challenged in front of Judge Sotomayor some years ago as a violation of free speech by pro-choice advocates, it would not have been surprising to see an outcome striking down the policy.

"That's not, however, what Judge Sotomayor did. Judge Sotomayor’s approach to the case was entirely objective. Relying upon the previous precedent of her circuit, which had rejected a similar claim, Judge Sotomayor faithfully turned away the claimed free-speech violation on the merits and rejected others on the basis of federal court jurisdiction that the parties lacked standing (a fussy, usually conservative favorite for keeping judges from encroaching legislative turf) in so far as the only harm alleged was to foreign organizations and not to the plaintiffs.

"On the main issue, Judge Sotomayor noted what could not be denied from Supreme Court precedent: namely, that “the government,” in her words, "is free to favor's antiabortion position over the pro-choice position with public funds."

What should pro-lifers make of this ruling? As the plaintiff in the case, the Center for Reproductive Rights, notes on its website:  "The opinion focused on the application of legal precedent and did not express a view on or discuss the impact of the Global Gag Rule on abortion law reform efforts around the world. " In other words, the ruling doesn't tell us much about how she might rule on future case involving abortion rights."   Meanwhile, the National Right to Life Committee has said it is too soon to draw any conclusion about Sotomayor's position on the issue and has called for a thorough review of her record: 

Still, Sotomayor's decision to adhere to legal precedent in her ruling on the Mexico City Policy may have prompted  a luke warm response to the nomination issued by Nancy Keenan, President of NARAL Pro-choice America.

Kmiec finishes up his argument with this assertion: "President Obama did not select Judge Sotomayor for her judicial outcomes, but for her experience." Conservative critics contend otherwise. In any case, the upcoming debate on the nomination will reveal a good deal more about Sotomayor's jurisprudence. 

Obama hopes to have his choice on the court by early fall, and we can expect to hear more from Doug Kmiec on the nominee -- the jurist who may well be the "sixth Catholic" appointed to the highest court in the land.

Update: Here is a post on Beliefnet that provides a bit more information on Sotomayor's Catholicism.