Dishonesty on Sotomayor

President Obama and other Democrats have been saying that when Judge Sotomayor said a wise Latina would more often than not reach a "better conclusion" than a white male, she "simply" meant that she would bring her own experiences to the court.

That is a lie. She was making a specific point. She referenced a quote that a wise man and wise woman will reach the same conclusion; she stated her disagreement with that view; and then she said a wise Latina will reach a better conclusion.

This was not a misstatement, or a slip of the tongue, it was an intentional and explicit point she was making.

However, this does not bother me nearly as much as her opinion in Hayden v. Pataki. Briefly, a New York state law that restricted the voting rights of felons was being challenged because, in the view of the challengers, blacks and Latinos were disproportionately affected and therefore the law violated the Voting Rights Act's prohibition of any voting qualification or standard that "results" in the denial of the right to vote "on account of" race.

Now, realize this decision is not about whether such prohibition "on account of" race actually occurred, but whether a case can go forward to make that determination. The majority claims that the Voting Rights Act does not apply to such statutes; this allows Sotomayor in her dissent to claim the textualist high ground, saying, the "plain terms" of the law say that the Voting Rights Act applies to such statutes.

But to me, this is all dancing around the plain fact that there is no evidence of any kind that the denial of rights is in any way "on account of" race.

But that all ignores the plain fact that the law in question does not deny rights "on account of" race. So I find myself much more drawn to Judge Raggi's concurring opinion than chief Judge Walker's opinion. Raggi notes:

While acknowledging the presumptive validity of felon disenfranchisement laws ... plaintiffs ... submit that New York's practice of prisoner disenfranchisement violates the VRA because there is a gross racial disparity in the state prison population. If permitted to pursue their claim, they seek to show that this disparity is a product of pervasive racism infecting every part of the New York criminal justice system, from stop and frisk determinations by police officers on the street, to charging decisions by prosecutors, to detention and sentencing rulings by state court judges. In short, plaintiffs propose to use the VRA to indict the New York criminal justice system for racism.

So employed, the VRA would not only significantly intrude on, but also seriously disrupt, the orderly administration of criminal justice in New York, obviously a matter of legitimate state interest. Plaintiffs' suit would effectively impugn the constitutionality of countless state convictions without necessarily proving that any one prosecution or sentence was, in fact, discriminatory.

The suit does not even attempt demonstrate, in any serious way, that the system is actually discriminatory. For that reason alone, the majority judgment is the correct one, and in my view Sotomayor -- while perhaps correct in her dissent, that the VRA can apply to such disfranchisement laws -- is implicitly buying into the argument that New York's system is discriminatory, or could be adjudged such without serious proof.