Sotomayor and The Culture Wars

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Cultural conservatives who were gearing up to use Obama’s first Supreme Court nomination as a fundraising opportunity will find Sonia Sotomayor a difficult sell. Indeed, in the weeks leading up to today’s announcement, they have paid much more attention to the judicial sins of another applicant, Diane Wood. Ed Whelan, of the Ethics and Public Policy Center, accused Wood of “display[ing] a hostility to orthodox Christian beliefs” and the Judicial Confirmation Network painted her as a pro-choice, secular radical, charging that “She has consistently twisted the Constitution to deny the rights of religious people that the Constitution in fact was designed to protect.”

Sotomayor, by contrast, has generated no such cultural alarms. She has, of course, been labeled a “judicial activist” but anti-abortion groups have also highlighted a couple of cases in which they approve of her decisions. The website notes in an article today that on the Second Circuit, Sotomayor joined in upholding the Mexico City policy that was overturned by Obama earlier this year. She rejected arguments made by the Center for Reproductive Freedom, which brought the challenge, writing: “The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.

Meanwhile, the Orthodox Union has compiled a list of Sotomayor’s rulings on religious liberty issues and calls the preliminary survey of her record “very encouraging.”

So does this point to a nomination process free from the kinds of culture war battles that we’ve come to expect over the past few decades? Not so fast. While it will be very difficult for Sotomayor’s opponents to characterize her as someone who is hostile to religion, her own faith could become an issue. It’s not yet clear if she is a practicing Catholic. But if she is, that would not only bring the total number of Catholic justices on the Court to six, it would also undoubtedly make her the latest target of those who believe that Catholic politicians and judges must oppose abortion rights (see previously: John Kerry, Nancy Pelosi, Kathleen Sebelius).

Sotomayor could also find herself on a collision course with the Vatican, which will need to clarify a statement issued earlier this year after Pope Benedict met with Nancy Pelosi:

His Holiness took the opportunity to speak of the requirements of the natural moral law and the church’s consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development. [emphasis mine]

As Catholic law professor Douglas Kmiec wrote for at the time, the statement represents a sharp break with the past. But you can expect to see it raised frequently by conservative Catholics as Sotomayor’s nomination moves forward.