What Will Kill the Next Supreme Court Nominee?

A) abortion, B) gay rights, or C) neither.

President Obama has decreed that there shall be no litmus test for the Supreme Court nominee he will name this spring or summer. But even if Obama really has no check list, the right and the left can still wave their own. So what’s on those lists?

So far, two usual suspects—gay rights and abortion—are getting only scattershot, tentative play. Maybe the Republicans will put on a more concerted show once a nominee has been named. Or maybe the old wedge issues are just old, in part because the Obama administration is helping to blunt them. Could this be the post-abortion nomination, in which we’re spared a furious fight over the future of Roe v. Wade? And could the gay rights debate lose its capacity to divide and embitter, too?

The Republicans start out with some handicaps. Neither the numbers in the Senate nor the polls about approval ratings are on their side. In addition, this nomination won’t shift the balance of power on the court. Obama will presumably replace Justice David Souter, a liberal-to-moderate, with another justice who is liberal-to-moderate. As a matter of vote counting, there’s little at stake.

Sens. Orrin Hatch and Jeff Sessions, the Republican leaders on the judiciary committee now that Arlen Specter has switched parties, have so far lowered expectations for a fight. Hatch said out of the gate that it would be a “real dilemma” for his party to oppose two of the women on many shortlists (including a new one whittled down to six names), Solicitor General Elena Kagan and appellate Judge Sonia Sotomayor. Kagan is “a brilliant lawyer,” Hatch said, and Sotomayor would be a “tough prospect” to oppose because “she is not only female but she is a Latino” and “understands human hardship.” Hardly fighting words. Nor is the denouncing of Obama’s interest in judicial “empathy” getting the Republicans far.

Sessions, meanwhile, said that “the American people might feel—might feel uneasy” about a gay nominee but that he would not oppose a pick of Obama’s based on sexual orientation. The conservative groups Focus on the Family and Family Research Council similarly hedged, saying that they’ll oppose a nominee with a “pro-gay ideology” or record of “homosexual rights activism.” The bet is apparently that beyond the base, gay-bashing won’t resonate, but framing the nomination as a battle over nationalizing gay rights still might.

If the Republicans could point to a looming showdown in the federal courts over a national right to gay marriage and tie the nominee to it, they might have a wedge-issue winner. But same-sex marriage supporters have been taking their fight to fusty states like Iowa and Maine, not the U.S. Supreme Court. And no one on the short list has a public record of jumping up and down for court-ordered gay marriage, as far as we know. When Obama nominated Elena Kagan as solicitor general in January, some Republicans opposed her based on Kagan’s support, as Harvard Law School dean, for a suit that sought to keep military recruiters off campus because of the military’s “don’t ask, don’t tell” policy. Kagan did say she backed the suit—but her law school didn’t join it. She was confirmed to her current post by a vote of 61-31. How would the Republicans who voted for her to be solicitor general explain a no vote for her now?

On abortion, Republicans may have even less traction. Obama is expected to pick a pro-choice justice. It will be hard to cast that basic stance in itself as extremist. (Hatch has said that if the president picks a nominee “in the mainstream,” “he’ll probably have a pretty easy time.”) So instead of a general barrage, the Republicans have opened fire on the abortion front against only Judge Diane Wood of the 7th Circuit.

Hatch said of Wood, who is at the top of many shortlists, “She is so sympathetic to issues like abortion rights that she even applied it in racketeering laws.” He was talking about the case NOW v. Scheidler, a decadeslong fight over using federal anti-racketeering law to punish protesters at abortion clinics. It’s true that Wood ruled repeatedly against the protesters and that she based her rulings in part on the RICO statute better known as a tool for going after mobsters. But if you drill down through the layers of litigation, Scheidler doesn’t make for much of a Republican sound bite.

The National Organization for Women and two abortion providers brought Scheidler as a suit against the Pro-Life Action Network, which included groups like Operation Rescue and some of its leaders, over tactics used in the 1980s to disrupt abortion clinics. In what they called “rescues,” PLAN sent its members not to accost patients going into the clinics or even to block entrances. Instead, the protesters stormed inside, wrecked medical equipment, chained their bodies to operating tables, and assaulted staff and patients. In Los Angeles, protesters grabbed a patient who’d come to the clinic for a follow-up appointment for ovarian surgery. The rough treatment reopened her incisions, and she had to be rushed to the hospital.

NOW sued the protest groups under the RICO law, which triples damages for violations of another federal extortion statute called the Hobbs Act. The theory behind the suit was that the protesters’ acts of planning, threats, and destruction amounted to extortion. At the time, it wasn’t clear what the alternatives were for bringing a halt to a pattern of violent protests around the country, other than suing over them one by one.

In its first crack at the case, in 1992, Wood’s court threw it out. A three-judge panel of the 7th Circuit ruled that RICO didn’t apply because NOW and the other plaintiffs hadn’t shown that the alleged acts of racketeering were “economically motivated,” as the judges thought the statute required. * The Supreme Court reversed that ruling in 1994 and sent the case back for trial. In other words, the high court, not Wood, initially breathed new life into NOW’s suit. After a seven-week trial, a jury found PLAN liable for dozens of violations of extortion law and also for acts or threats of physical violence. The jury awarded the abortion providers about $250,000 in damages all told. More significantly, the trial judge entered a permanent, nationwide injunction barring PLAN and its leaders from interfering with any abortion clinic operations.

Wood and her panel approved the trial judges’ rulings. The case went back to the Supreme Court, and in 2003, by a majority of 8-1, the Supreme Court reversed. This is the moment in which Wood looks like she’s out on a limb. Even Justice Ruth Bader Ginsburg agreed to reverse her, writing that “the Court is rightly reluctant, as I see it, to extend RICO’s domain further by endorsing the expansive definition of ‘extortion’ adopted by the Seventh Circuit.”

But Wood’s expansive definition turns on the reading of a single word in the Hobbs Act. The Supreme Court held that PLAN’s acts were criminal but did not constitute extortion for one reason: because PLAN did not “obtain” the abortion clinics’ property. The protesters wrecked things and deprived the clinics of their exclusive right to control their business assets, the court continued, but they didn’t “obtain” property, legally speaking, because they didn’t get something of value that “they could exercise, transfer, or sell.” If that sounds like lawyerly word parsing, that’s because it is. So goes statutory interpretation, and often, diligent lower-court judges don’t predict the Supreme Court’s reaction accurately. Wood didn’t think the high court had previously answered the question before her about the Hobbs Act. So she based her ruling on past rulings in her own circuit. That is the correct and standard operating procedure in the appeals courts. In rehearsing the 7th Circuit case law that led to her result, Wood doesn’t sound unhinged or activist. She sounds like a careful appeals court judge.

It also matters that before the Supreme Court’s 2003 ruling in Scheidler, Congress gave abortion clinics their own statute for combating violence. As Ginsburg mentioned, the Freedom of Access to Clinic Entrances Act authorized both criminal prosecution and civil penalties for protesters who use force, threats, or property damage to interfere with access to abortion clinics. The clinics didn’t need to stretch RICO any more.

Maybe that’s why the fight in Scheidler seems long ago and far away. Will the Republicans try to attack Wood for it if Obama taps her? Undoubtedly. But maybe that only goes to show how few wedges they have to work with.

This piece also appears in Double X.

Correction, May 12, 2009: The article originally stated that Judge Wood wrote the 1992 panel opinion. She did not. She joined the 7th Circuit in 1995. (Return  to the corrected sentence.)