Sixteen years of our uncertainty as to where Justice Ginsburg, sitting through her own Senate confirmation hearing, stood on both a woman's right to choose and the fundamental right to privacy became crystal clear in the response of current Supreme Court nominee Sonia Sotomayor to the question of whether the decisions of prior Courts to uphold a woman's right to choose were appropriate or legitimate (the cases are not limited to Roe and Casey, but also include Griswold v Connecticut, Webster v Reproductive Health Services, Stenberg v Carhart and Gonzales v Carhart). Judge Sotomayor simply responded that these cases are "settled law." In two words Sotomayor was able to make blatantly obvious the vagueness the last female jurist nominated and confirmed to the Supreme Court left wide open when she joined the Court.
Now, the question will become whether the Senators voting to confirm Judge Sotomayor and the American people as a whole appreciate her brevity or if they will continue to surmise that she is for or against a woman's right to choose based on her background, experience or even gender. The question will also remain as to how Sotomayor will be perceived by the hard right, in general a group of Americans who, regardless of Sotomayor's honesty, will continue to oppose her on the basis that she is on the side of the law or for the sake of simplicity pro-choice. This is one of the issues in this country that is continuously blurred because Judge Sotomayor or any person in her position will be rejected or opposed because of anti-choice sentiment, yet on the other hand could be rejected on the basis of disrespect of the law had she said that no, she does not support or wish to uphold Roe. This conundrum being precisely why reproductive rights are a wedge issue in this country--one side views the finality of the issue as a person being on the side of the law or not while the other side views a person as being for or against life. We will never agree that there are no absolutes on this issue.
Going back to Justice Ginsburg, I think it is appropriate to explain my opening comment about hindsight. We can assume now, some sixteen years after her confirmation, based on case law, her voting record, and her written opinions, that Ginsburg sides with the law and will continue to vote to uphold Roe v Wade. However, upon her confirmation, I am not entirely certain any American, politician or otherwise, aside from Ginsburg herself could have predicted how she would vote on any matter of reproductive health. Ginsburg had this to say about the right to privacy:
"There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone.In the case of Justice Ginsburg, I would argue that in her confirmation hearings she said too much. Instead of clearly defining her positions, as Sotomayor has today with her "settled law" statement, Ginsburg discussed the rulings on privacy issues that were in conflict with one another (specifically Casey and Thornburgh) and continued on to volunteer opinions that may have served to contradict one another. To further prove my point on the statements of Ginsburg prior to her joing the Court, here are two more statements made during her confirmation hearing that are vivid, but unfortunate in comparison to the statements of Sotomayor:
"The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make decisions about one's life course."
"...The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices..."And, in response to a different question from a different senator:
"I will rest my answer on the Casey decision, which recognizes that it is her body, her life, and men, to that extent, are not similarly situated. They don't bear the child."It is unfortunate that Ginsburg couldn't simply answer the question by stating, as clearly as Sotomayor has, that these decisions had been made and it would then be her responsibility to uphold the law until a case might offer the opportunity for the Court to clarify its position on the matter. It is also unfortunate that in order to compare the way in which Sotomayor has answered the prodding of predominantly male senators on the issue of a woman's reproductive health to another justice, we must go back to the nomination and confirmation of Ginsburg because the questioning practices are far more similar between Sotomayor and Ginsburg than between Sotomayor and Roberts or Alito.
We have been forced to endure the rather pointed questions posed to Sotomayor on whether she feels empathy toward plaintiffs and defendants in cases and, as recently as this afternoon, ridiculous questions about the text of the Constitution and if the actual word 'abortion' appears there. It seems obvious that we should instead be grateful for brevity and clear-cut responses that do not leave us wondering for sixteen years what exactly a person serving on the highest court in our nation believes about the laws that govern us.