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May 28, 2009

Judge Sotomayor on textualism and voting rights in Hayden v. Pataki

Folks can find lots and lots of interesting SCOTUS nominee Sotomayor blogging on various topics at The Volokh Conspiracy and SCOTUSblog and elsewhere.  Here I will continue to keep the focus on criminal justice issue, while also stressing that a close review of Judge Sotomayor's work in criminal justice cases might provide the best window into her various perspectives on law and judging.

Today I enourage everyone to consider Judge Sotomayor's comments in her one-page separate dissent in the en banc case, Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), which concerned felon voting rights.  The full Second Circuit opinion is available here and here is the full text of Judge Sotomayor's dissent (which appears on page 100 of the 103-page pdf!):

SOTOMAYOR, Circuit Judge, dissenting.

I join in Judge Parker's dissent, and write this separate opinion only to emphasize one point.  I fear that the many pages of the majority opinion and concurrences — and the many pages of the dissent that are necessary to explain why they are wrong — may give the impression that this case is in some way complex.  It is not.

 It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that § 5-106 disqualifies a group of people from voting.  These two propositions should constitute the entirety of our analysis.  Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.

The duty of a judge is to follow the law, not to question its plain terms.  I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.  The majority's "wealth of persuasive evidence" that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act,  Maj. Op. at 322, includes not a single legislator actually saying so.  But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.

I respectfully dissent

If I were told this opinion was from a Supreme Court Justice rather than from a lower court, I would likely guess that it came from the pen of Justice Scalia.  The commitment to textualism reflected in this short opinion in Hayden, not to mention the poke at other judges for adding complexity to an issue she thinks simple, suggests that in some ways we may find that Sotomayor may be a version of Scalia cooked with a Latin salsa instead of Italian gravy.

Prior post on the SCOTUS nomination of Judge Sotomayor:

May 28, 2009 at 09:21 AM | Permalink


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So Sotomayor's a textualist? Doug, you clown yourself.

Posted by: federalist | May 28, 2009 10:24:15 AM

At the very least, she is [a textualist] when she wants to be. Just like Scalia and others too numerous to mention.

Posted by: Observer | May 28, 2009 10:33:09 AM

I dont see how a recitation that a statute that bars discrimination on "account of race" clearly bans felon disenfranchisement laws is "textualist". Sounds more like disingenuousness to me.

Posted by: federalist | May 28, 2009 10:38:02 AM

I agree with Observer. It certainly is a textual argument she is making but that alone does not make her a textualist, anymore than Scalia is.

"Sotomayor may be a version of Scalia cooked with a Latin salsa instead of Italian gravy."

Lol. Next you'll be talking about the Trilateral Commission.

Posted by: Daniel | May 28, 2009 11:11:32 AM

Note the arrogance of this hack judge. At a minimum, the text of the statute itself does not plainly support her position. So then the statute needs to be interpreted . . . . So the issue is not so simple. Is this woman serious?

Posted by: federalist | May 28, 2009 12:39:37 PM

Prof Berman: Be glad you were not a law firm recruiter at Yale.

Here is Sotomayor as a law school senior. "Latin Salsa? What the ...??" "You need to apologize, I am filing a formal complaint of discrimination, seeking to exclude you from Yale Law Campus for rayssizzm."

I am apologizing pre-emptively. The word "senior" refers to a student in the last year of school. In no way, is it any attempt to mock, imitate, deride Hispanic people.

Posted by: Supremacy Claus | May 28, 2009 4:14:27 PM

I see what you did there senor.

Posted by: Daniel | May 28, 2009 6:43:30 PM

Italian gravy...didn't know there was such an animal.

Posted by: TapirBoy1, J.D. | May 28, 2009 7:15:47 PM

Midwest for tomato sauce. Then sprinkle crushed potato chips on top.

Posted by: Supremacy Claus | May 28, 2009 8:39:39 PM

In addition to anything positive it might inadvertently accomplish, the right-wing's textualism jihad ultimately seeks to stifle the one hopeful remedy for all the cynical, demagogic, fear-mongering, pit-pandering, grandstanding crap lawmakers routinely stuff into bills.

The vengeful, wasteful, destructive laws they crank out instantly become all but impossible to fix or repeal (to try would be to risk being tagged as "weak" or "soft" or worse).

In that light, what's so awful with those freakishly rare occasions when the co-equal judiciary branch steps in to provide a little course correction?

This glimpse of Sotomayor supports my growing list of misgivings about her nomination.

Posted by: John K | May 29, 2009 11:38:54 AM

Sotomayor's committment to textualism in this case is limited to whether the law applies to disfranchisement statutes. It does not, unfortunately, extend to the plain meaning of "on account of race." Clearly, these laws have nothing to do with race. If this law DID take race into account, I'd agree with her: the VRA would apply, and I think any claim that the VRA was not meant to encompass such laws is wrongheaded. But that is not the real issue here: the real issue is whether there is any case to be made that any disfranchisement is "on account of race." And it's not.

Posted by: pudge | May 31, 2009 1:36:54 PM

It is really nice for me to see you and your great hardwork again.

Posted by: cheap jordans | Oct 28, 2010 3:21:56 AM

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