OPEN LETTER TO BARACK OBAMA ON HIS AUTOBIOGRAPHY “A PROMISED LAND” Part 29 The 1973 Roe v. Wade decision focused further attention on Court appointments, with every nomination from that point on triggering a pitched battle between pro-choice and anti-abortion forces

December 20, 2020

Office of Barack and Michelle Obama
P.O. Box 91000
Washington, DC 20066

Dear President Obama,

I wrote you over 700 letters while you were President and I mailed them to the White House and also published them on my blog http://www.thedailyhatch.org .I received several letters back from your staff and I wanted to thank you for those letters. 

I have been reading your autobiography A PROMISED LAND and I have been enjoying it. 

Let me make a few comments on it, and here is the first quote of yours I want to comment on:

It turned out that Supreme Court justices made law all the time.
     Over the years, the press and the public started paying more attention to Court decisions and, by extension, to the process of confirming justices. In 1955, southern Democrats—in a fit of pique over the Brown decision—institutionalized the practice of having Supreme Court nominees appear before the Senate Judiciary Committee to be grilled on their legal views. The 1973 Roe v. Wade decision focused further attention on Court appointments, with every nomination from that point on triggering a pitched battle between pro-choice and anti-abortion forces. The high-profile rejection of Robert Bork’s nomination in the late 1980s and the Clarence Thomas–Anita Hill hearings in the early 1990s—in which the nominee was accused of sexual harassment—proved to be irresistible TV drama. All of which meant that when it came time for me to replace Justice Souter, identifying a well-qualified candidate was the easy part. The hard part would be getting that person confirmed while avoiding a political circus that could sidetrack our other business.
     We already had a team of lawyers in place to manage the process of filling scores of lower court vacancies, and they immediately began compiling an exhaustive list of possible Supreme Court candidates. In less than a week, we’d narrowed it down to a few finalists, who would be asked to submit to an FBI background check and come to the White House for an interview. The short list included former Harvard Law School dean and current solicitor general Elena Kagan and Seventh Circuit appellate judge Diane Wood, both first-rate legal scholars whom I knew from my time teaching constitutional law at the University of Chicago. But as I read through the fat briefing books my team had prepared on each candidate, it was someone I’d never met, Second Circuit appellate judge Sonia Sotomayor, who most piqued my interest. A Puerto Rican from the Bronx, she’d been raised mostly by her mom, a telephone operator who eventually earned her nurse’s license, after her father—a tradesman with a third-grade education—died when Sonia was just nine years old. Despite speaking mostly Spanish at home, Sonia had excelled in parochial school and won a scholarship to Princeton. There, her experiences echoed what Michelle would encounter at the university a decade later: an initial sense of uncertainty and displacement that came with being just one of a handful of women of color on campus; the need to sometimes put in extra work to compensate for the gaps in knowledge that more privileged kids took for granted; the comfort of finding community among other Black students and supportive professors; and the realization over time that she was as smart as any of her peers.
     Sotomayor graduated from Yale Law School and went on to do standout work as a prosecutor in the Manhattan district attorney’s office, which helped catapult her to the federal bench. Over the course of nearly seventeen years as a judge, she’d developed a reputation for thoroughness, fairness, and restraint, ultimately leading the American Bar Association to give her its highest rating. Still, when word leaked that Sotomayor was among the finalists I was considering, some in the legal priesthood suggested that her credentials were inferior to those of Kagan or Wood, and a number of left-leaning interest groups questioned whether she had the intellectual heft to go toe-to-toe with conservative ideologues like Justice Antonin Scalia.
     Maybe because of my own background in legal and academic circles—where I’d met my share of highly credentialed, high-IQ morons and had witnessed firsthand the tendency to move the goalposts when it came to promoting women and people of color—I was quick to dismiss such concerns. Not only were Judge Sotomayor’s academic credentials outstanding, but I understood the kind of intelligence, grit, and adaptability required of someone of her background to get to where she was. A breadth of experience, familiarity with the vagaries of life, the combination of brains and heart—that, I thought, was where wisdom came from. When asked during the campaign what qualities I’d look for in a Supreme Court nominee, I had talked not only about legal qualifications but also about empathy. Conservative commentators had scoffed at my answer, citing it as evidence that I planned to load up the Court with woolly-headed, social-engineering liberals who cared nothing about the “objective” application of the law. But as far as I was concerned, they had it upside down: It was precisely the ability of a judge to understand the context of his or her decisions, to know what life was like for a pregnant teen as well as for a Catholic priest, a self-made tycoon as well as an assembly-line worker, the minority as well as the majority, that was the wellspring of objectivity.
     There were other considerations that made Sotomayor a compelling choice. She’d be the first Latina—and only the third woman—to serve on the Supreme Court. And she’d already been confirmed twice by the Senate, once unanimously, making it harder for Republicans to argue that she was an unacceptable choice.
     Given my high regard for Kagan and Wood, I was still undecided when Judge Sotomayor came to the Oval Office for a get-to-know-you session. She had a broad, kind face and a ready smile. Her manner was formal and she chose her words carefully, though her years at Ivy League schools and on the federal bench hadn’t sanded away the Bronx accent. I’d been warned by my team not to ask candidates their positions on specific legal controversies like abortion (Republicans on the committee were sure to ask about any conversation between me and a nominee to see if I had applied a “litmus test” in making my choice). Instead, the judge and I talked about her family, her work as a prosecutor, and her broad judicial philosophy. By the end of the interview, I was convinced that Sotomayor had what I was looking for, although I didn’t say so on the spot. I did mention that there was one aspect of her résumé that I found troubling.
     “What’s that, Mr. President?” she asked.
     “You’re a Yankees fan,” I said. “But since you grew up in the Bronx and were brainwashed early in life, I’m inclined to overlook it.”
     A few days later, I announced my selection of Sonia Sotomayor as a Supreme Court nominee. The news was positively received, and in the run-up to her appearance before the Senate Judiciary Committee, I was happy to see that Republicans had trouble identifying anything in the judge’s written opinions or conduct on the bench that might derail her confirmation. Instead, they fastened on two race-related issues to justify their opposition. The first involved a 2008 case in New Haven, Connecticut, in which Sotomayor joined the majority in ruling against a group of primarily white firefighters who’d filed a “reverse discrimination” claim. The second issue concerned a 2001 speech Sotomayor had delivered at the University of California, Berkeley, in which she’d argued that female and minority judges added a much-needed perspective to the federal courts, triggering charges from conservatives that she was incapable of impartiality on the bench.
     Despite the temporary dustup, the confirmation hearings proved anticlimactic. Justice Sotomayor was confirmed by a Senate vote of 68–31, with nine Republicans joining all the Democrats except for Teddy Kennedy, who was undergoing treatment for his cancer—about as much support as any nominee was likely to get, given the polarized environment we were operating in.
     Michelle and I hosted a reception for Justice Sotomayor and her family at the White House in August, after she was sworn in. The new justice’s mother was there, and I was moved to think what must be going through the mind of this elderly woman who’d grown up on a distant island, who’d barely spoken English when she had signed up for the Women’s Army Corps during World War II, and who, despite the odds stacked against her, had insisted that somehow her kids would count for something. It made me think of my own mother, and Toot and Gramps, and I felt a flash of sorrow that none of them had ever had a day like this, that they were gone before they’d seen what their dreams for me had come to.
     Tamping down my emotions as the justice spoke to the audience, I looked over at a pair of handsome young Korean American boys—Sotomayor’s adopted nephews—squirming in their Sunday best. They would take for granted that their aunt was on the U.S. Supreme Court, shaping the life of a nation—as would kids across the country.
     Which was fine. That’s what progress looks like.

 I wanted to mention the correspondence I had with Carl Sagan. On December 5, 1995, I got a letter back from Carl Sagan and in this letter he included a copy of his article “Abortion: Is it Possible to be both “Pro-life” and “Pro-Choice”?”  which also was published in some places under the title “The Question of Abortion: A Search for Answers.” In that article Sagan stated:

Acquiescing in the killing of any living creature, especially one that might later become a baby, is troublesome and painful. But we’ve rejected the extremes of “always” and “never,” and this puts us–like it or not–on the slippery slope. If we are forced to choose a developmental criterion, then this is where we draw the line: when the beginning of characteristically human thinking becomes barely possible.

This article by Sagan was also published in his last bookBILLIONS AND BILLIONS:Thoughts on Life and Death at the Brink of the Millennium and I had the privilege of reviewing that book for the magazine PERSPECTIVES ON SCIENCE AND CHRISTIAN FAITH (Volume 50, Number 3, September 1996). Sagan assumes this takes place in the fetus during the thirtieth week of pregnancy–near the beginning of the third trimester. It is amazing that Sagan can come to this arbitrary and reckless decision after making the following assertions: “If it is impermissible to abort a pregnancy in the ninth month, what about the eighth, seventh, sixth…?” (p. 165). “We recognize that specifying a precise moment will overlook individual differences. Therefore, if we must draw a line, it ought to be drawn conservatively–that is, on the early side” (p. 171). “A morality that depends on, and changes with technology is a fragile morality…” (p. 178).

Lastly Sagan concludes “ROE v WADE is  a good and prudent  decision” (p. 178) and he admits he is “on the slippery slope” (p. 176) but he fails to realize how far that slope goes down. Francis Schaeffer and Dr. C. Everett Koop in their book WHATEVER HAPPENED TO THE HUMAN RACE? noted:

...when the United States Supreme Court made its ruling about abortion on January 22, 1973, Mr. Justice Blackmun delivered the opinion of the court. The first section of his opinion was entitled “Ancient Attitudes.” In it he referred back to pre-Christian law. He said, “Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring. Ancient religion did not bar abortion.” Thus, as his first point, Mr. Justice Blackmun based his opinion on the practice of pre-Christian Greek and Roman law. Most people who read this did not realize the logical result concerning babies after their birth. Roman law permitted not only abortion but also infanticide. As we think this over, we ask ourselves, “Now that this door is open, how long will it be before infanticide is socially accepted and perhaps legalized?”

Sincerely,

Everette Hatcher III, 13900 Cottontail Lane, Alexander, AR 72002, ph 501-920-5733 everettehatcher@gmail.com

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