And Sotomayor actually answered some of them.

In particular, asked by Franken whether she believes the Supreme Court’s recent decision invalidating part of the Voting Rights Act was an “activist” decision that overrode the intent of Congress and the language of the Constitution, she declined to comment on the Supreme Court’s opinion, but instead pointed out her own ruling in a previous case involving the Voting Rights Act, strongly implying that she thought the Supreme Court had indeed gone too far.

In the case she decided, “I suggested that issues of changes to the Voting Rights Act should be left to Congress in the first instance,” she said. That was one of the most direct answers on an issue likely to come before the court that she’s given yet.

And Franken wins points for asking another roundabout question meant to elicit her views on “judicial activism” — a phrase Sotomayor said she doesn’t like to use.

“How often have you decided a case on an argument or a question that the parties have not briefed?” asked Franken.  This question goes to the heart of the Ricci reverse discrimination case, where the Supreme Court on its own set out a new standard for lower courts to follow, then refused to send the case back to the courts to let the parties brief how it applied to the facts at hand.

Sotomayor could not remember a single instance of doing that as a judge.

She also couldn’t remember, when Franken asked her as he wound up his questioning, the name of the one case that the prosecutor on the Perry Mason show won.  To which Franken replied: “Didn’t they prepare you at the White House for this hearing?”

Senator Herb Kohl (D-Wis.), just spent much of his questioning time asking Judge Sonia Sotomayor whether she a) believes there is a right to privacy, as the Supreme court has ruled there is; b) whether she thinks Roe v. Wade is still good law; c) whether she agrees with the Supreme Court’s decision that allows a government to take land by eminent domain and turn it over to a private developer; and d) whether the Supreme Court’s decision in an antitrust case that allowed vertical price-fixing was right or wrong.

Kohl knows full well that no candidate to the Court can or would testify that she believes a recent Supreme Court decision is wrong, or that she’s intent on joining the court and then urging her colleagues to reverse their own precedent.  So why is he wasting his time?

Not to beat up on Kohl in particular, but it’s a perfect example of how nomination hearings are as much (or more) about political posturing for the senators’ constituents as they are about actually learning more about the nominee. In this case, it was also an easy way for Kohl to hand Sotomayor a golden opportunity to display that she would join the Supreme Court without biases or preconceptions and faithfully apply the law (just as Justices John Roberts and Samuel Alito, nominated by President George W. Bush, promised to do before her).

–

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Photo by: SMN, Flickr Creative Common

The threats started in 1995. It was the anniversary of Roe v. Wade, and the American Coalition of Life Activists decided to create a poster for their annual meeting listing the names and address of a group of doctors who performed abortions. They called them “the Deadly Dozen,” and declared each guilty of “crimes against humanity.” They offered $5,000 for information leading to their arrest, conviction, or revocation of their medical licenses. ACLA members distributed the poster at the group’s events and published it in an affiliated magazine.

Illustration by: Matt Mahurin

Then later that year, ACLA unveiled a second poster, this time targeting Dr. Robert Crist, an abortion provider in Kansas City. The poster listed his home and work addresses and featured his photograph. It offered $500 to “any ACLA organization that successfully persuades Crist to turn from his child killing through activities within ACLA guidelines,” which prohibited violence.

The following January, ACLA created the “Nuremberg Files” — a series of dossiers it had compiled on doctors, clinic employees, politicians, judges and other abortion rights supporters. Dr. George Tiller of Wichita, Kans., who was killed Sunday, was among them. They would be prosecuted, ACLA wrote, “once the tide of this nation’s opinion turns against the wanton slaughter of God’s children.” ACLA sent copies of the dossiers to an anti-abortion activist who posted the information on a Website. There, the names of those who had been attacked by “anti-abortion terrorists” — as the court called them — were listed, with a strike through the names of those who had been murdered. The names of those wounded were grayed.

Although neither the posters nor the Website contained explicit threats against the doctors, similar posters had previously been made of other doctors shortly before they were violently attacked; one was murdered. Abortion providers soon took to wearing bulletproof vests, drew the curtains of their home windows and received protection from U.S. Marshals. The strategy had worked.

Eventually, some of the doctors, represented by Planned Parenthood, sued ACLA, twelve activists and an affiliated organization, claiming that their actions violated the federal Freedom of Access to Clinic Entrances Act, or FACE act, among other laws. At trial, a jury found that the statements were “true threats” and therefore not protected by the First Amendment. The doctors won $107 million in damages and an injunction barring the anti-abortion activists from distributing similar information in the future.

Although the anti-abortion protesters appealed, a majority of judges on the Ninth Circuit Court of Appeals affirmed the verdict. Such “WANTED”- style posters, the court ruled, in the context of previous similar threats and subsequent violence, and the lines drawn through the names of doctors who’d been murdered, were not protected by the First Amendment: “ACLA’s conduct amounted to a true threat and is not protected speech.” The Supreme Court declined to review the case, and it remains good law.

Much of the discussion in the wake of Tiller’s slaying has been about criminal prosecution of those who murder abortion doctors. But there’s a growing concern about the anti-abortion extremists — some call them domestic terrorists — who enable and encourage such murders by labeling abortion providers “mass murderers”, Nazis and worse, and implying that violent attacks against them are not only justified, but honorable.

As Rachel Maddow revealed in chilling detail in her MSNBC news show on Monday night, groups such as Rescue America, Prayer and Action News, Army of God and Operation Rescue Founder Randall Terry all appeared to be celebrating Tiller’s murder on Monday. And while extremists who promote violence against abortion providers could be prosecuted under state and federal law — and particularly under the federal FACE Act — the federal government in recent years has hardly prosecuted any such cases.

According to statistics provided by the Department of Justice, the Bush administration brought only about two criminal prosecutions per year in the entire country under the FACE Act , and never more than four in any single year. The Clinton administration, in contrast, prosecuted 17 defendants for violations of the FACE Act in 1997 alone, and an average of about 10 per year since the law was enacted in 1994. Those cases included one against a woman in 1996 who yelled through a bullhorn to a doctor, “Robert, remember Dr. Gunn. This could happen to you …”, referring to Dr. David Gunn, the first abortion doctor ever murdered, in 1993. In another case, a man who parked a Ryder truck outside a clinic shortly after the bombing of a federal building in Oklahoma City, where a Ryder truck had been used to carry explosives, was found to have threatened force. Stalking, arson and bomb threats are also illegal.

Whether the dropoff in prosecutions is because the FACE Act successfully deterred crimes after its enactment or because the Bush administration wasn’t interested in prosecuting them is not clear. “The amount of activity really did drop a lot after FACE was enacted and it was beginning to be enforced,” said Cathleen Mahoney, Executive Vice President of the National Abortion Federation who was an attorney in the Justice Department until 2006. “Certainly the political will wasn’t there.”

That’s disappointed Janet Crepps, deputy director of the legal program at the Center for Reproductive Rights. “I don’t think that the government has done enough,” she said, noting that while the Clinton administration had created a task force in the Department of Justice to coordinate responses to clinic threats and violence, during the Bush years, “we’ve heard that providers during that time would call DOJ for help and get no response.”

Justice Department spokesman Alejandro Miyar said Tuesday that the task force still exists, and in a statement released after the fatal shooting of Dr. Tiller, Attorney General Eric Holder said that “[f]ederal law enforcement is coordinating with local law enforcement officials in Kansas on the investigation of this crime.” It remains to be seen, however, whether the government will also investigate the anti-abortion activists who threaten abortion providers and may have worked with the actual murderer.

But as the Planned Parenthood case illustrates, the doctors and clinic workers who are targets of violent threats don’t have to wait for the government to act. The FACE act allows doctors or clinic workers to privately sue the individuals and groups making the threat. And although that’s been challenged on First Amendment grounds, its use has been upheld by the courts in cases where the intent to threaten or intimidate was clear.

The lawyer who represented Planned Parenthood in that case declined to be interviewed for this article, citing the sensitivity surrounding the issues, lack of knowledge of the circumstances of Dr. Tiller’s death and respect for his family. But several lawyers confirmed that the case, last litigated in 2006 when the anti-abortion groups tried to appeal to the Supreme Court, could serve as a model for others.

“It’s very fact-intensive,” said Mahoney, from the National Abortion Foundation. “It really depends on the particular circumstances. We would say that people should not be allowed to threaten anyone for providing legal medical services.” In addition to a private right to sue, state attorneys general can also enforce the law within their states.

Some civil libertarians, however, have concerns. On “The Rachel Maddow Show” Monday, George Washington University Law Professor Jonathan Turley cautioned against prosecution or lawsuits against even those who promote violence. “We have this difficult line to walk between free speech and preventative law enforcement,” he said. “The Supreme Court has said that violent speech is protected … and it is in fact protected to say all abortion doctors should be killed.”

That’s not necessarily true under the FACE Act, however. The law specifically targets whoever “by force or threat of force … intentionally injures, intimidates or interferes with …” anyone who is a provider of abortion services or a patient trying to access them.

That’s not to say that FACE is sufficient or its enforcement is easy. “It’s penalties are significantly lower than many other federal criminal statutes,” said Mahoney, who was involved in criminal prosecutions under FACE in the justice department. The other difficulty, she acknowledged, is the “delicate balance” between protected speech and incitement to violence. While the law does make it a crime to “intimidate or interfere” with provision of abortion services, “there’s a lot of law about what’s a criminally actionable threat” that makes intimidating statements difficult to prosecute. “It’s not so much FACE as that whole body of law that’s the difficulty,” said Mahoney.

Avoiding such politically charged difficulties may be why the federal government appears in recent years to have avoided enforcing the law altogether. The murder of George Tiller, apparently by a known anti-abortion zealot, may begin to change the political equation.

“I’m worried about his views on abortion,” Jake Teshka, a 20-year old from South Bend, Indiana who carried a sign that asked President Obama not to sign the Freedom of Choice Act. “But I’m rooting for America.”

Teshka and three friends have driven straight from South Bend to watch Obama’s inauguration, although Savannah Herms, 15, was disappointed in the way that crowd booed former President Bush. “We were clapping respectfully and people laughed at us. I asked them why; they said because of Katrina. Who cares what the president did? You have to boo him?”

The attitude of Teshka and his friends was the norm: the tone of the March was gritty and beaten, reflecting the fact that, as Rep. James Sensenbrenner (R-Wis.) said, pro-life activists have “had it easy” since 1994. “For fourteen years we’ve either had control of the Congress, or, as over the last two years, a president who could veto pro-abortion legislation.”  Sensenbrenner pledged to stop “all this bad stuff,” like funding of NGOs that fund abortions, and asked the crowd to join a “24-month campaign” with the implied goal of cutting down the Democratic majority.

There were a few tokens of opposition to the president, the most striking of which was a sign that read “Hitler Killed Jews, Obama Kills Babies.” Mostly, there were attempts to co-opt Obama’s popularity. Students for Life passed out purple signs with the message “Yes We Can … Terminate Abortion.” One home-made sign: “Want CHANGE? Create a culture of life in America. Reject FOCA.” Another: “If Obama = CHANGE, Babies = INNOCENCE.” Dozens of marchers co-opted a quote from Pope John Paul II with signs that said that a nation with legal abortion was “a nation without HOPE.”

The religious organizers of the event addressed many of their comments to Obama, some as prayers, some as challenges. One demanded the president stop copying Lincoln by riding trains and instead “sign an Emancipation Proclamation to stop the killing of the babies.” The 24 members of Congress and two senators (Sam Brownback of Kansas and Louisiana’s David Vitter) who addressed the crowd were, generally, just as polite to the new president, with an air of we’ll-get-you-next-time. “We’ve lost an election,” said Brownback. “We haven’t lost the war!”

Or take the speech of Rep. Steve King (R-Iowa), the man who can’t stop obsessing over Obama’s middle name. “Know the answers to two questions,” he told the crowd. “Do you believe in the sanctity of all human life? Yes is the answer. The next question is, when does life begin?” The crowd shouted “conception,” and King smiled. “The next question is: President Obama, when did your life begin?” The crowd roared, and King passed the mic.

Sarah Palin and her son, Trig. (flickr Sparky05)

HERSHEY, Pa. — During Alaska Gov. Sarah Palin’s last swing through battleground states this week, boisterous supporters cheer almost on cue when she delivers her stump speech.

Few lines get a more deep-felt roar of approval than her signature issue — support for children with disabilities.

Palin’s words strike deeper than just with parents who come to her rallies because one of their children has a disability.

Social conservatives cheer when Palin talks about the value of all children because her words are a subtle but clear signal of her staunch anti-abortion views. She talks about special-needs education in words and phrases generally associated with the anti-abortion movement, effectively reminding anti-abortion voters that she shares and supports their view.

Illustration by: Matt Mahurin

During a stop Sunday in Asheville, N.C., Palin told a raucous audience that she plans on “ushering in that spirit” of prioritizing children if she becomes vice president.

“John [McCain] and I have a vision of America where every innocent life counts,” Palin told a crowd at a high-school football stadium in Roanoke, Va., the next day. “Where everyone has a chance to contribute and every child is cherished. And that’s the spirit I want to bring to Washington, D.C.”

Palin, a mother of five, gave birth to her youngest son, Trig, in April. She knew he would be born with Down syndrome. On the stump, she talks about how, through prayer, she prepared herself for the challenges of welcoming the new member of her family. She tells crowds that when she and her husband, Todd Palin, saw Trig for the first time, he was “perfect” in their eyes — and now they consider him a “blessing.”

The issue of special-needs kids resonates with families eager to have a public figure so ready and able to prioritize programs for their children.

But Palin’s words appeal to many more of her supporters for what they signal. Her personal story is leavened with language regularly used by the anti-abortion movement — including phrases like “spirit” and “culture of life.” It allows her to reach the GOP’s anti-abortion base without actually talking about reproductive health issues.

Palin has spoken about her anti-abortion views publicly. During a debate in the 2006 Alaska gubernatorial campaign, Palin said she would be against abortion even in the event her daughter was raped. She said she only supports abortion in instances where the life of the mother is endangered.

During the presidential campaign, Palin has been more cautious in outlining the specifics of her beliefs.

Advocates on both sides of the abortion-rights debate agree that Palin doesn’t need to be direct. By discussing her plans for special-needs children and touching on her own story, she galvanizes the arm of the GOP base that lists abortion as a top issue. At the same time, she runs less of a risk of alienating pro-abortion rights voters.

“She is able to talk about the life issue without talking about abortion, because everybody knows her personal circumstance,” said Janice Crouse, a political commentator from Concerned Women of America, a conservative nonprofit public-policy group that opposes abortion rights.

“She is able to talk about issues just with her personal life,” Crouse said, “without having to bring up the political kind of rhetoric that people are so tired of. Instead, she talks about it from a personal standpoint, and that makes it very palatable for people.”

Palin’s strategy is not new in the anti-abortion-rights movement.

Caitlin E. Borgmann, a professor at the City University of New York’s Law School who writes the Reproductive Rights Prof blog, says “special code words” and euphemisms have served anti-abortion activists well.

After the Supreme Court’s Roe v. Wade in 1973, the anti-abortion movement aimed to reduce access to abortion incrementally rather than by an outright ban.

Campaigns targeted seemingly narrow goals, including laws requiring 24-hour waiting periods or parental notification before a woman, or woman under 18, could undergo an abortion.

Anti-abortion voters tend to be more conscious of the broader strategy, while pro-abortion rights voters tend to see such initiatives as discrete measures.

Borgmann said language helps this dichotomy between galvanizing the base and not alienating moderates and liberals.

“The movement and the supporter know it’s part of this larger strategy,” Borgmann said, referring to discrete measures and specific language. Borgmann noted that pro-abortion rights voters tend to be less aware of, or sensitive to, the tactics and wording.

Palin has used some of the most common terminology like “a culture of life” in referring to abortion.

Her comments about special-needs children have a similar feel. Rather than talking broadly about people with special needs, her focus is on children and families. She frames it as a family issue.

In her first major policy speech, Palin focused on how she plans to prioritize funding for special-needs education. She said she would work for the full funding of a federal law that matches state funds for special education.

She couched her policy discussion in a broad discussion of the value of every child’s life.

“Too often, even in our own day, children with special needs have been set apart and excluded,” Palin said during an address in Arlington, Va. “Too often, they are made to feel that there is no place for them in the life of our country, that they don’t count or have nothing to contribute. This attitude is a grave disservice to these beautiful children, to their families and to our country — and I will work to change it.”

Borgmann noted that such phrasing is an example of reaching the base without turning off more moderate or even liberal voters.

It’s an important line for Palin to walk. Even if her crowds hold more extreme views than most voters, she must remember she is being broadcast live on national TV.

A recent ABC News poll shows that 53 percent of likely voters now say the economy is the most important issue, well above any social issue. Only about 6 percent of voters now say abortion, marriage and gun rights are their top issue for the 2008 presidential race, according to a Newsweek poll from last week.

Palin has been careful discussing her anti-abortion views during previous campaigns. In 2006, when running for governor of Alaska, she avoided talking about her anti-abortion views at major events.

The state of Alaska has strong legal protections for abortion rights, including an explicit right to privacy in the state constitution, and the electorate is not largely concerned about the issue.

Clover Simon, head of Planned Parenthood Alaska, said Palin only touches on reproductive rights explicitly at “really targeted events,” where supporters are staunchly anti-abortion.

In her year and a half as governor, before being tapped for the GOP presidential ticket, Palin had not pushed for any policy changes on abortion. Her anti-abortion supporters have said they are hopeful she might still make it a priority, if she returns to Alaska as governor.

In the meantime, to continue reaching out to her base, Palin only needs to hint at her record — and her plans — to let them know her views. Without getting into the specifics of her policies, her supporters know where she stands.

“As governor,” Palin said in a recent speech in Johnstown, Pa., “what I’ve been able to do is kind of manifest my commitment to life.”

More justices in the mold of Antonin Scalia could be on the way under a McCain presidency. (Flickr: eralon)

There has been much debate about whether Sen. John McCain is a candidate of change. But in one area, McCain is unquestionably a reformer. He would almost certainly make fundamental changes in the direction of the U.S. Supreme Court.

McCain has said that, should he be president, Chief Justice John Roberts and Justice Samuel Alito “would serve as the model for my own nominees.” He regularly attacks what he calls “activist judging,” and he described a recent ruling vindicating the right to habeas corpus as “one of the worst decisions in the history of this country.” McCain has repeatedly said that Roe v. Wade was wrongly decided and should be overruled.

Illustration by: Matt Mahurin

If McCain is elected, change would clearly be coming to the U.S. Supreme Court. And in constitutional law, the Republican presidential nominee is anything but conservative. Once skeptical of the idea that the court should overrule Roe v. Wade, he now invokes the clichés and code words of the extreme right. His votes have matched his words, for he has been a proud and enthusiastic supporter of President George W. Bush’s most extreme appointees to the courts of appeals.

Recently McCain complained of “the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.”

In his view, the “system of checks and balances rarely disappoints,” but “there is one great exception in our day”: the Supreme Court. McCain aims to eliminate that exception. It is more than mere speculation to suggest that with judicial appointments, McCain may well follow the extreme right-wing of his party.

The court is already dominated by Republican appointees, and in the last 20 years, it has shifted dramatically to the right. The next president is expected to be able to appoint at least one — and possibly as many as three — new members. Even a single appointment would likely shift constitutional law in major ways.

The right to choose remains sharply contested within the Supreme Court — and the Republican Party and the pro-life movement have long sought to eliminate that right. The McCain-Palin ticket plans first to “return the abortion question to the individual states” and then “to end abortion at the state level.”

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

But abortion is only the tip of the iceberg.

Consider McCain’s astounding statement that the court’s recent vindication of the right to habeas corpus is among “the worst decisions” in the nation’s history. (As bad as Dred Scott v. Sandford, entrenching slavery? As bad as Lochner v. New York, striking down maximum hour laws? As bad as Plessy v. Ferguson, upholding racial segregation?) McCain’s favorite justices — Roberts and Alito — have consistently sided with the Bush administration in cases involving the constitutional authority of the president. Under a President McCain, their dissenting views might well become the law of the land.

The Supreme Court has already struck down provisions of the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Violence Against Women Act. A McCain court would go further. Some Republican appointees have raised constitutional doubts about provisions of the Endangered Species Act, the Clean Air Act and the Clean Water Act. With new members on the court, important environmental laws would face fresh constitutional scrutiny.

In the last decade, Republican appointees to the bench have led a constitutional attack on affirmative-action programs. But in some areas, like education, for example, government is allowed to engage in a modest degree of affirmative action. With an appointment or two by a McCain administration, affirmative-action programs might be banned entirely.

Does the Constitution allow Congress to enact campaign-finance reform? McCain clearly thinks so. But his favorite justices — Roberts and Alito — have severe doubts. Campaign-finance proposals already face acute constitutional doubts. With one or two McCain appointments, most such proposals may well become constitutionally unthinkable.

All this offers merely a glimpse. Some Republican appointees want to restrict citizens’ rights of access to federal courts, to give commercial advertising the same level of protection as political dissent, to provide new protection to property rights (at the expense of environmental law), to narrow the court’s decisions involving sex discrimination, and much more.

There is a major irony here. McCain calls for “strict construction” and “judicial restraint,” and he rejects “legislating from the bench.” But in countless areas, conservative appointees avoid strict construction, and they are all too willing to legislative from the bench.

There is a close connection between the constitutional views of McCain’s his preferred judges and the political views of the extreme right-wing of the GOP. To say the least, it would be a startling coincidence if the best interpretation of the Constitution turned out, fairly consistently, to entrench the political views of one or another side.

When McCain calls for “strict construction” and “judicial restraint” while opposing “judicial legislation,” no one should be fooled. Is it “restrained” for justices to invalidate campaign-finance laws and provisions of the Violence Against Women Act? Is it “strict construction” to strike down affirmative-action programs, to ban Congress from allowing citizens to sue in federal court, to give unprecedented protection to property rights?

When McCain speaks of strict construction and restraint, he is speaking in code. He is signaling his desire to produce large-scale change in the direction favored by the far right — for starters, and above all, by overruling Roe v. Wade.

It is not at all clear that a McCain administration would seek to reorient current practices in the domestic arena or in foreign policy. But there is no doubt that in constitutional law, McCain favors fundamental change.

The question remains: Is this really the change we need?
Cass R. Sunstein is Felix Frankfurter professor of law at Harvard Law School. He will be the Harry Kalven Visiting Professor at University of Chicago Law School in January 2009. His most recent book, which he co-wrote with Richard Thaler, is “Nudge: Improving Decisions about Health, Wealth, and Happiness.” His books include “Are Judges Political? An Empirical Analysis of the Federal Judiciary” and “The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever.”