President Barack Obama had two viable courses open to him in making his first Supreme Court nomination. He could choose a radical who would reinvent the Constitution. Or he could choose a mainstream liberal like the justice he was replacing. In selecting Judge Sonia Sotomayor, it appears he chose the latter course--and despite whatever bluster they may deem appropriate, conservatives should consider themselves lucky.
Most early opposition centers on off-the-bench comments Sotomayor has made with which I strongly take exception. In 2001, she voiced her hope that a "wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male." That same year, she proclaimed that "[o]ur experiences as women and people of color affect our decisions."
Were those comments all we knew about Sotomayor, I would be deeply concerned. But she has something far more important: an extensive record, with 12 years as a federal appellate judge and more before that on the district court. Her record is liberal but not dogmatic, consistently bound by her understanding of what the law requires. It betrays no evidence of a desire to profoundly change or defy the rule of law.
Some of Sotomayor's decisions trouble me. She voted last year to uphold racial preferences in a New Haven case that presently is before the U.S. Supreme Court. This year, she ruled that the Second Amendment's right to keep and bear arms does not apply to the states. Earlier, she voted to sustain a particularly brutal abuse of a city's eminent domain power. (So much for the empathy factor.) And in 2000, she expanded "state actor" liability to encompass a private halfway house that contracted with the government. Justice David Souter, whom she will replace, likely would have voted the same way in all of those cases.
But she also ruled in 2002 that the federal government could forbid foreign nonprofit groups from using U.S. aid to fund abortions. Four years later, she upheld the decision of parents to place their child, who was receiving federal disability funds, in a private school. Her most impressive decision, however, may be her 2002 dissent in Pappas v. Giuliani, which affirmed the firing of a police officer who anonymously disseminated racist materials outside of work. Although Sotomayor found the speech "patently offensive, hateful and insulting," she declared that court's ruling violated "the centrality of the First Amendment in our lives because it is confronted with speech it does not like."
In 2004, I argued a case challenging New York's prohibition of the direct interstate sale and shipment of wines before Judge Sotomayor. She was well-prepared and asked probing, engaging questions. Sotomayor joined with a conservative judge, Richard Wesley, in holding that states have plenary regulatory control over alcohol. Fortunately for wine-lovers, the Supreme Court overturned the ruling; but the Second Circuit decision, for better or worse, was an example of a restrained judicial impulse.
I expect that I will disagree with a majority of Sotomayor's decisions as a justice. But she may side with conservative justices more often than her predecessor, which is not a terribly high bar to surpass. Her record illustrates that she takes each case as it comes, applying a liberal prism but not an overarching jurisprudential agenda. Within the realm of the possible, that's not nearly as bad as it could have been. What's more, it appears that Sotomayor is a fan of the New York Yankees, a definite improvement over the likely baseball proclivities of the New Englander she will replace.
Republicans should put Sotomayor through the usual paces, but large-scale opposition could be risky for two reasons. First, if Republicans cry wolf on Sotomayor, they may lack credibility if Obama looks further left for his next nominee. Second, if they overstate their case against Sotomayor, it will make them appear anti-Hispanic, reinforcing an image that already is damaging enough. I am not suggesting at all that Republicans should refrain from opposing any nominees who deserve it, whatever their race, ethnicity or gender--but they should oppose only when they deserve it.
There are plenty of major causes on which conservatives should passionately persist--from opposing nationalized health care, corporate bailouts and paralyzing deficits to promoting a society based on individual freedom and responsibility. But unless something far more robust surfaces about Sonia Sotomayor, we should wish her the best and move on to more defining battles.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation in Phoenix and a research fellow with the Hoover Institution.