The candidates considered by President Barack Obama for the seat of retiring Supreme Court Justice David Souter ran the gamut from mainstream to radical. In choosing Judge Sonia Sotomayor, Obama appears to have resisted the impulse to choose a justice who would try to remake the Constitution, in favor of a well-qualified judge who usually votes along liberal lines but shows an independent streak.
Critics have focused on comments Sotomayor made that her ethnicity and gender may influence her decisions. If they have, it's not obvious in her judicial record. A former prosecutor, Sotomayor generally has taken a moderate position in criminal cases. She voted to uphold a federal government ban on the use of foreign-aid dollars for abortion. She upheld a family's unilateral placement of their disabled child, who was receiving federal funds, in a private school. She dissented in a First Amendment case that upheld a city's action against a police officer who anonymously spread racist propaganda off-hours, despite the fact that the speech offended her.
Three decisions, however, are especially troubling. In a case that presently is before the Supreme Court, she voted to uphold a city's action in throwing out the results of a civil service examination because too few minorities were promoted. She voted to uphold a particularly brutal abuse of a city's eminent domain power. (So much for the "empathy" Obama purports to value.) And she ruled that the Second Amendment right to keep and bear arms does not extend to the states. David Souter, the justice Sotomayor would replace, also ruled in favor of racial preferences, upheld eminent domain abuse, and took a restricted view of the Second Amendment.
Overall, however, if her appellate court record is an indication of her views as a justice (no sure thing), she will be less of a doctrinaire liberal than Justice Souter. We should hold her accountable about cases in which she strayed from the Constitution--but also consider ourselves lucky that Obama did not choose a nominee who exhibits disdain for the rule of law.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.