For those who imagine that Ted and I are always in accord on each and every topic of the day, he’s got a post at NRO “Bench Memos” correcting that impression. And the nomination-blogging continues at Point of Law with links to Jim Copland and John Hasnas columns, and an Ilya Somin podcast; and Jim reacts to the widely discussed Thomas Goldstein analysis of the judge’s rulings (about 100 of them) in race cases.
2 Comments
The Goldstein analysis needs to be taken with a huge grain of salt as he has to practice before the Court.
Tom Goldstein is a staunchly liberal lawyer and relentless booster of Judge Sotomayor. Although he purports to “review[] every single race-related case on which she sat on the Second Circuit,” he inexplicably left out the most controversial race-related cases that she decided.
For example, Goldstein omits the extremely important case of Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), in which Judge Sotomayor joined a dissent containing what Chief Judge Walker called “novel equal protection theories that … would severely impact police protection.”
Similarly, Thomas Goldstein’s analysis of Sotomayor’s rulings overlooks Sotomayor’s dissent in Hayden v. Pataki, which rejected a Voting Rights Act challenge to New York’s law barring prison inmates from voting. Sotomayor’s argument that prison inmates should be allowed to vote, not just those felons already released from prison, was truly unprecedented and radical.
Sotomayor’s position conflicts with both the language of Section 2 of the 14th Amendment, which expressly reserves to states the ability to bar felons from voting, and statements by the framers of the Voting Rights Act and the Reconstruction Amendments, who approved of denying felons the right to vote, to claim that prison inmates should be allowed to vote.
If prison inmates could vote in the sparsely-populated rural county in which their prison is located, they could potentially dominate voting for county offices, producing very strange and anomalous results.
It is also simply strange to argue that prison inmates, who have not paid their debt to society, and have violated society’s rules, should be allowed to set society’s rules by voting on ballot initiatives that make law, and by selecting lawmakers through the franchise.
(Of course, if a state deliberately gerrymanders its felon-disenfranchisement laws to cover only crimes committed by black people, and not white people, out of racist intent, that can violate Chief Justice Rehnquist’s decision in Hunter v. Underwood. But Judge Sotomayor did not allege any such thing in the Hayden case, nor did the case involve any such racial discrimination. And a blanket ban on prison inmates voting, not motivated by racial bias, is perfectly legal, and perfectly constitutional, as has long been recognized).