Supreme Court nominee Sonia Sotomayor is an advocate of allowing felons to vote. "Advocate" is a loaded word when referring to a judge, and with good reason. Judges are not supposed to allow their personal preferences to influence their interpretation of the law and the facts at issue in a given case. But their really is no other way to describe Sotomayor's dissenting opinion in Hayden v. Pataki, a case brought by inmates in New York State under the federal Voting Rights Act.
The inmates were suing the State of New York for the right to vote, alleging New York's prohibition of felon voting was discriminatory based on race and ethnicity. Sotomayor sided with the inmates in a four-paragraph long opinion, holding that the Voting Rights Act prohibited states from disenfranchising felons because the majority are black, Hispanic, and other minorities.
The Washington Times excoriates Sotomayor for her shoddy legal reasoning pointing out that the Constitution grants states the right to deny felons the vote in the Fourteenth Amendment. The Times rightly characterizes her opinion in the case as a product of her inability to see past race and ethnicity and apply the law as written.
"Ms. Sotomayor is thus in the position of asserting that Congress can prohibit New York from doing something the Constitution itself specifically endorses. It's as if she thinks that black and Hispanic felons are convicted in order to deny them the vote, rather than being denied the vote as a result of being duly convicted. Her position ignores the fact that it is these convicts' own actions, their crimes – not any state-based racial discrimination – that make them ineligible to vote.
[Sotomayor's] dissenting opinion in Hayden v. Pataki is another example of her taking racial grievance mongering to absurd new depths. They are depths unbecoming a Supreme Court justice."
Unsurprisingly, as a Senator, President Obama was a co-sponsor of the Count Every Vote Act, a bill which would have restored the right to vote to all ex-felons nationwide, according to a description of the legislation the president provided during the campaign on an NAACP questionnaire. It's not likely that he was pandering. But what about as a Constitutional law professor? Does the president endorse the position Sotomayor expressed in her brief dissent on felon voting rights? How about Sotomayor's interpretation of the Voting Rights Act and the Fourteenth Amendment?
This is a question on which it seems that Sotomayor is very vulnerable. First, her legal reasoning – that Congress can trump the Constitution by statute – if that's what we must call it, is highly uninformed. Second, Sotomayor only took four paragraphs to elucidate her opinion. That leaves precious little room for justifications grounded in past precedent or legal analysis. It smacks more of an, "I like it, therefore it must be," approach to judging, at least in this case. Worse, the apparent lack of effort Sotomayor put into the decision suggests a lack of respect for the process that will not serve the country well were she to be confirmed. Justices must bring more heft than a curt, "Because I said so!" when ruling on matters of national impact.
Republicans should press Sotomayor hard on this case, and others, in private and at her confirmation hearings. They should also demand that the White House answer for nominating a judge who could not be bothered to explain her extra-Constitutional reasoning in Hayden v. Pataki, and who refuses to be bound by the Constitution or the law in attempting to implement her, and the president's, favored outcomes.