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Focus on Judge Sotomayor’s Legal Analysis: Hayden v. Pataki

May 26, 2009

From the New York Law Journal’s long piece on Judge Sonia Sotomayor’s judicial opinions (cited and quoted below), one decision stood out for its significance to what will almost certainly be a defining jurisprudential issue in the upcoming confirmation debate:

Judge Sotomayor was in the minority and penned a dissent when a sharply divided court sitting en banc rejected a bid to challenge New York’s §5-106 of the Voting Rights Act barring convicted felons from voting in Hayden v. Pataki, 04-3886 (NYLJ, May 5, 2006).

“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,” Judge Sotomayor wrote. “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. “

In this case, Judge Sotomayor heard a dispute over a portion of New York’s Voting Rights Act that barred convicted felons from voting. She disagreed with the majority in that case, which found that the ban did not violate the constitution, and very nearly accused them of judicial activism when she wrote, “[t]he duty of a judge is to follow the law, not to question its plain terms.”

Her quote comes very close to turning the typical conservative accusation of “judicial activism”, normally levied against political opponents, back against the majority judges in this case who reached a politically conservative decision. The charge of “judicial activism”, a favorite and unrelenting criticism made by the political right against judges with whom they disagree, is sure to be discussed at length during Judge Sotomayor’s confirmation hearings. Her opinion in Hayden likely won’t blunt conservative criticism of her opinions (especially because, on substance, her opinion in the case can be characterized as politically liberal) but it should make clear that the claim of “judicial activism” is less a principled objection than it is a political attack.

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