Bench Memos

CRS on Sotomayor and Imprisoned Felons

This CRS Sotomayor report, as Ed’s post alludes to, is anything but “objective and non-partisan.”   It reads like the anonymous memo put out on Capitol Hill by the White House Counsel’s office labeling Sotomayor a “nonideological and restrained jurist.”  (Hmm . . . maybe that’s the source of the CRS research.)


CRS is one-upping the White House doubletalk about Judge Sotomayor that is intended to obscure the liberal judicial activist, and frankly, the sub-par judge that she really is. 


Just for instance: The CRS report, referring to Hayden v. Pataki, the voting-rights-for-felons case, says “her approach to statutory interpretation revealed an apparent preference for adhering to the plain meaning of the text, while simultaneously expressing deference to Congress.”


This is the case in which Judge Sotomayor would have granted the claim of convicted felons who are in prison that their right to vote had been violated on account of their race.  As in Ricci, her fellow Clinton appointee, Judge Jose Cabranes, set the matter straight, pointing out for the majority in the case that the felons had not been denied the right to vote because of their race but rather . . . because . . . they were in prison.  Judge Cabranes’s opinion used the applicable canons of statutory interpretation to reach the sensible conclusion that the Voting Rights Act does not require states to let imprisoned felons vote.  Given the statute at issue, its history of amendment, and the necessity of applying a statutory construction analysis, the opinion was thorough, and even added material about the history of provisions at issue and history of felon disenfranchisement, lest anyone think it was an unduly parsimonious reading of a statute.  Judge Cabranes was careful to say that the case posed “a complex and difficult question that, absent Congressional clarification, will only be definitively resolved by the Supreme Court.”  


But Judge Sotomayor didn’t find anything complex or difficult: She wrote a three-paragraph dissent not only insisting that felons in prison should have the right to vote, but attacking the thorough job done by the majority opinion and other opinions in the case, saying:  “It is plain to anyone reading the Voting Rights Act that it applies to all ‘voting qualification[s].’  And it is equally plain that [New York’s felon disenfranchisement law] disqualifies a group of people from voting.” 


This is, apparently, what CRS calls “adhering to the plain meaning of the text” and “expressing deference to Congress.”


A neutral analysis would call it yet another example of shoddy, results-oriented judging.