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This Saturday is the 38th anniversary of Roe v. Wade. Believe me when I say that I could write for days on the significance of the decision, and even more about recent news and the current state of reproductive rights. If I tried, I could probably recount verbatim the conversation I once had with Sarah Weddington (the lawyer who argued Roe at the young age of 26!). But I won’t. For now, I will simply offer the following excerpts from Ourselves Unborn: A History of the Fetus in Modern America by Sara Dubow. To those of you who celebrate it, I wish you the happiest of Roe Days.     –Lauren Appelwick, Blog Editor

For most of the twentieth century, abortion was simultaneously proscribed and practiced. In 1953, Alfred Kinsey reported that nine out of ten premarital pregnancies ended in abortion and that 22 percent of married women had had an abortion while married. In 1955, the continuing demand for abortion motivated Planned Parenthood’s medical director Dr. Mary S. Calderone to organize a conference featuring women testifying about the hardships of dangerous and unwanted pregnancies, and physicians advocating for liberalized abortion restrictions. Whereas the American Medical Association (AMA) had led the nineteenth-century movement to criminalize abortion, it was now in the vanguard in an incipient movement to legalize it. In 1960, physicians at the AMA annual convention argued that laws against abortion were unenforceable, thus undesirable, and in 1962 the American Law Institute (ALI) endorsed the liberalization of abortion laws.

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Not satisfied with reforms that kept the power to grant or refuse an abortion in the hands of doctors and hospital boards, grassroots activists began advocating for the repeal of all abortion restrictions. In 1969, the National Association for Repeal of Abortion Laws (NARAL) was founded at the First National Conference on Abortion Laws, and the radical feminist group Redstockings held the first speak-out on abortion.  In 1970, the New York state legislature legalized abortion, an act endorsed by Republican governor John D. Rockefeller.  In 1971, a national poll showed that more than half of Americans favored legalizing abortion, the American Bar Association issued a statement supporting the legalization of abortion up to the twentieth week of pregnancy, and the Supreme Court heard the first round of oral arguments in Roe v. Wade. On January 22, 1973, the Supreme Court ended the nearly century-long prohibition against abortion in the United States. In his majority opinion, Justice Harry Blackmun made clear the Court’s desire to remove the abortion question from the abstract realms of philosophy, theology, and morality and place it in the concrete realm of law:

By Edward Zelinsky

When President Bush nominated my law school classmate Circuit Judge Samuel A. Alito, Jr., to the U.S. Supreme Court, I supported Judge Alito’s confirmation to the high court. Now that President Obama has nominated Circuit Judge Sonia Sotomayor to the Supreme Court, I favor her confirmation as well. To those who view the Supreme Court primarily as a forum for partisan struggle, this conclusion will seem anomalous. To those concerned about the rule of law, this conclusion will seem compelling.

In earlier times, Presidents reached across party lines in making Supreme Court appointments. President Truman, for example, appointed to the Court Senator Harold H. Burton of Ohio, a Republican. President Eisenhower similarly crossed party lines to nominate to the Supreme Court Judge William J. Brennan, Jr., a New Jersey Democrat. In today’s environment, such bi-partisan appointments are inconceivable.

When President Bush, with a Republican-controlled Senate, confronted a vacancy on the Court in 2005, the realistic expectation was that he would appoint a professionally qualified Republican. Judge Alito easily met that criterion and was properly confirmed by the Senate.

I supported Justice Alito’s confirmation not because I concur with every decision he has made or is likely to make. Indeed, I have disagreed with several of (now) Justice Alito’s decisions, most recently, District of Columbia v. Heller in which the Court read the Second Amendment as invalidating a gun control law of the District of Columbia. I supported Justice Alito’s confirmation because of his professional distinction, not because of his political ideology.

Similar observations apply to Judge Sotomayor. I will not agree with every decision she will make on the high court. Indeed, I disagreed with her participation as an appellate judge in Ricci v. DeStefano, which invalidated New Haven’s promotional examination for firefighters because too many white males passed the test. Recently, a five justice majority of the Supreme Court concluded that, indeed, Ricci was wrongly decided.

However, the relevant question is, given the pool from which Barack Obama will appoint Supreme Court justices, did the President pick a lawyer who is professionally qualified to sit on the nation’s highest court? By that criterion, Judge Sotomayor passes muster.

There are commentators, many quite distinguished, who find naive an emphasis upon a judge’s professional credentials. From their vantage, the Supreme Court has been and will continue to be nothing more than a cockpit of partisan struggle. Concern about professional qualifications is, from this vantage, at best unsophisticated, at worst a smokescreen for other agendas.

I respectfully suggest that it is those commentators who are indulging in naivete. President Bush in 2005 was going to place a conservative Republican on the Supreme Court. Similarly, in 2009, President Obama will place a liberal Democrat on the Supreme Court. Given those political realities, the question becomes whether the President, in satisfying his political imperatives, has nominated to the Court a professionally qualified appointee.

The professional qualifications of judges matter because of the role the courts play in our national life. Courts are where Americans go for the fair, principled application of law administered by a judge who is guided, not by the identity of the parties, but by legal norms and standards. All too often, the reality falls short of this ideal. Nevertheless, this ideal is an important part of America’s self-image and of our success as a nation: We believe in the rule of law. Our judges should thus be more than partisans. They should be legal professionals in the best sense of that term, knowledgeable, hardworking craftsmen who seek to administer the law in a fair and principled fashion. This commitment to professionalism should start with the judges at the pinnacle of the legal system.

To be sure, judges, particularly Supreme Court justices, are also policymakers. Many of the cases reaching the U.S. Supreme Court are there because conventional legal reasoning does not resolve them. Consequently, much of what the Supreme Court does entails choices of policy and political philosophy.

It is accordingly appropriate for Judge Sotomayor’s confirmation hearing to focus, not just on her professional credentials, but upon the substantive issues she will address on the Supreme Court. Supreme Court confirmation hearings (a relatively recent innovation in our constitutional history) have become an important and legitimate part of our national conversation – though I would urge the Republicans to approach this hearing with greater civility than many of his Democratic interlocutors brought to Justice Alito’s confirmation process. Judge Sotomayor’s hearing should be a dialogue befitting constitutional principles, not a partisan slugfest.

In short, I was for Sam and now, for the same reasons, I’m for Sonia.