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Sotomayor - A Judicious Choice?

You can watch the report here.

Supreme Court Justice nominee Sonia Sotomayor goes before a Senate panel, Monday, to begin the arduous confirmation process.

The senators will grill Sotomayor on every aspect of her life to determine whether she is worthy of the lifetime commitment of being one of only nine justices to sit on the bench of our nation's highest court.

Sotomayor is a Catholic. And as such, her position on abortion could receive more attention during her confirmation hearings. Traditionally, Catholics have stood shoulder-to-shoulder with pro-lifers. But that tradition could be softening.

A Practicing Catholic?

About 65 million Americans are Catholic. That makes up roughly one-quarter of the country's population. But only half that number are considered "practicing Catholics," who are solidly anti-abortion. Among the other half, opinions about abortion are mixed.

"If you look at practicing Catholics, those who go to mass on a regular basis, they are obviously in favor of pro-life they are obviously opposed to the abortion rights agenda," Willliam Donohue, president of the Catholic League, explained.

"Those Catholics who show up at Easter and Christmas and take the seats from the rest of the Catholics in the church, these are the people who are okay with abortion," he said. "They may not be loving it, but they're certainly not too exercised about it."

But even among "non-practicing Catholics" there is division.

According to Donahue, "within the non-practicing category, those people who are good men and women but for whatever reason, laziness or whatever, don't go to church on a regular basis."

"They are not to be confused with the minority of people who call themselves Catholic and are champions of abortion, who lie about the Catholic church who are activists on the far secular left," he explained. "Those people are a real, real problem. I have not seen any indication that Sonia Sotomayor is of that ilk."

Ruling on Abortion

Sotomayor has never ruled directly on the constitutionality of abortion. But in one of the close cases, she sided with anti-abortionists. That case dealt with the "Mexico City Policy," which prevented United States tax dollars aiding other countries from being used to counsel for, or provide abortions. 

In 2002 she wrote, "the Supreme Court has made it clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds." 

That has led some to quietly lean toward Judge Sotomayor because, while she may not be a conservative, they feel she may be more right-leaning than the other potential nominees.

"Be careful what you wish for in the event that the Republicans try to savage her and they win," Donahue said. "Waiting in the wings are people who make her look like Ronald Reagan."

Other potential nominees include Seventh Circuit Court of Appeals Judge Diane Wood, who was appointed by President Clinton, Elena Kagan, who was confirmed as Solicitor General in March 2009, and Homeland Security Secretary Janet Napolitano.

Personal Views vs. Justice

But should a judge's personal views on abortion, or any other issue, matter?  After all, justice is supposed to be blind. A judge's personal beliefs are irrelevant because it's the court's job to uphold the Constitution, not change it. It's the elected members of Congress who are charged with changing policy. 

But statements from both President Obama and Judge Sotomayor have some wondering whether the two are in favor of judges legislating from the bench. Statements like the one she made to a group of law students, that judges, essentially, make laws. 

"Court of Appeals is where policy is made. And I know, and I know this is on tape and I shouldn't be saying this, because we don't make law, I know (laughter)," she said. The sarcastic remark has been viewed regularly on YouTube.

Jay Sekulow, chief counsel for the American Center for Law and Justice, says he is outraged by Sotomayor's attitude toward the responsibility of a judge.

"To call her a judicial activist is an insult to judicial activists," he said. "She believes the role of the court of appeals is to legislate from the bench to create social policy. And that confuses her role. She is not an elected legislator.

"She's supposed to be an umpire," Sekulow added. "Remember when John Roberts was confirmed, he said, 'I'm gonna call 'em like I see em.'? She's coming in as a cheerleader for one side and that's not her role as a judge."

'Empathetic' Justice?

President Obama also raised eyebrows when he said he would like to see a Supreme Court who possesses "empathy," thereby indicating he believes a judge's emotions should play a role in how they rule.

"You have to be able to stand in someone else's shoes and see through their eyes and get a sense of how the law might work or not work," Obama said. "You have to be able to stand in someone else's shoes and see through their eyes and get a sense of how the law might work or not work." 

This despite language in the judicial oath stating judges are to "administer justice without respect to persons and do equal right to the poor and the rich." 

If confirmed, Judge Sotomayor will join five other Catholics on the High Court. But observers are waiting to see whether sharing the same religion will have any influence on social issues such as abortion, or even the propriety of letting their personal views affect their rulings. 

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