Battle Over Supreme Court Pick May Follow Fight Against Pro-Abortion Health Care

National   |   Steven Ertelt   |   Mar 26, 2010   |   9:00AM   |   WASHINGTON, DC

Battle Over Supreme Court Pick May Follow Fight Against Pro-Abortion Health Care

by Steven Ertelt Editor
March 26
, 2010

Washington, DC ( — With the fight against the pro-abortion health care bill in Congress over and attorneys taking the cause to courts, pro-life advocates may not have much time to rest before the next battle begins. There is talk that pro-abortion Justice John Paul Stevens may retire and open up a seat on the Supreme Court.

Should Stevens step down in the coming weeks, the question will be whether President Barack Obama wants to spend more of what little political capital he has remaining.

He could opt for a far-left pro-abortion nominee to keep the seat in line with Steven’s philosophy and position as one of the members of the five-justice pro-abortion majority supporting Roe v. Wade.

Or, Obama could opt for a middle of the road choice — someone who would likely support keeping 52 million abortions legal but without an extensive left-wing resume or reputation that would encourage a filibuster.

Although he hasn’t yet announced his intentions, ongoing health issues, advancing age and his decision to hire just one attorney for the Supreme Court’s October session (justices typically hire four) has speculation rampant that he will step down after 35 years on the top bench.

The New York Times reports today that the Obama administration is taking covert steps to prepare for his resignation, to not appear to be pushing for Stevens to retire or showing its hand that his stepping down is a foregone conclusion.

Stevens told the New Yorker on March 8 that he would decide within a month — meaning any news about a coming Supreme Court battle is perhaps days away.

Should Stevens step down, some of the top potential nominees are abortion advocates.

They include Elena Kagan, the solicitor general; Diane Wood, an appeals court judge in Chicago; and Merrick Garland, an appeals court judge in Washington.

Obama may face conflicting pressures on the left from some who want him to lay low and select a replacement the Senate can easily confirm heading into the mid-term elections. Others want Obama to select from liberal firebrands like scholars Harold Hongju Koh, Cass Sunstein and Pamela Karlan to counteract the highly-regarded conservative jurists on the Supreme Court’s right flank.

Curt Levey, executive director of the Committee for Justice, a conservative group, told the Times that those selections would lead to "all-out war" over the nomination.

Wood is a leading prospect for pro-abortion groups because she has already struck down pro-life legislation and because she knows Obama from working together at the University of Chicago.

With Obama recently signing an executive order on abortion that some pro-abortion groups were less than pleased with, he may face the pressure to pick another woman for the high court following Sonia Sotomayor.

When the next high court justice does retire, Obama’s potential nominee will be scrutinized over their views and rulings on the issue of abortion. And some of the top potential candidates Obama could name are abortion advocates.

Kagan, the president’s solicitor general, is an abortion advocate whom pro-life groups have already assailed.

"In the past Kagan has been a strong supporter of the pro-abortion agenda," Marjorie Dannenfelser, the president of the pro-life women’s group Susan B. Anthony List, told previously. "She has vigorously opposed the de-funding of taxpayer-funded clinics which promote abortions, despite the fact that a majority of Americans do not want their tax dollars to fund abortion providers."

Wood, of the U.S. Court of Appeals for the 7th Circuit, is a strong abortion advocate.

Wood ruled against bans on partial-birth abortion in cases involving legislation from Wisconsin and Illinois. She joined the federal court in ruling that Wisconsin’s law was unconstitutional under the Supreme Court’s first ruling on partial-birth abortions in 2000.

Judge Wood also ruled in favor of abortion advocates by allowing them to misuse the RICO law designed to control mob activities to sue pro-life protesters.

Homeland Security Secretary Janet Napolitano is another potential appointee and she vetoed numerous pro-life bills when she was governor of Arizona.

Leah Ward Sears, former chief of the Georgia Supreme Court and Judge Garland, who sits on the U.S. Court of Appeals for District of Columbia Circuit are other possibilities.

The best pro-life advocates can hope for is retaining the current 5-4 pro-abortion majority which, if a pro-life president is elected and can put another conservative jurist on the court, is one vote away from possibly overturning the pro-abortion precedent.

During his State of the Union address, Obama criticized a recent Supreme Court decision that some pro-life attorneys and legal experts say could be used as a basis for overturning the 37-year-old pro-abortion precedent in Roe and Doe.

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