Sotomayor’s Racialist Judicial Activism

This article originally appeared as the weekend lead for Friday, June 26, 2009. Five months later, it was chosen for inclusion in Opposing Viewpoints, America’s Prisons, vol. 2. The inclusion is a special honor for me. Not only is the Opposing Viewpoints series in nearly every high school library in the country, but it provides an invaluable service: fairly representing conflicting views on an issue and allowing students to make up their own minds. I know its importance firsthand. As a high school student I read many of the volumes then in print, and the series informed some of the views I still hold today.TRW.

Conservatives’ meager attempts to navigate the difficult path opposing Sonia Sotomayor’s Supreme Court nomination have thus far shown their own ineptitude. Some have rightly emphasized that her statement “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male” is reverse racism – but it hardly excites public outrage beyond the already convinced. Conservatives should recognize this and force the next stage of the public debate to revolve around a simple question: do the American people believe convicted felons in prison should have the right to vote, and that laws denying them this privilege are racist? If they disagree with either proposition, they are at odds with Sonia Sotomayor, whose positions on these and related issues demonstrate she is a judicial activist who sees the world through the lens of identity politics.

Sotomayor’s position came in a terse dissent to the 2006 case Hayden v. Pataki. The case argued that New York’s law barring convicted felons from voting until they are released from prison or complete parole is racist and thus unconstitutional. Its supporters made this argument on the grounds that “[m]ore than 80% of the New Yorkers disenfranchised…are Blacks or Latinos, who lose their right to vote at more than ten times the rate of other citizens.” Plaintiff Joseph “Jazz” Hayden, before he began his humanitarian crusade on behalf of the disenfranchised, was convicted in 1987 of stabbing a sanitation worker to death. Most Second Circuit Court of Appeals judges disagreed with him, but Sotomayor found Hayden’s objection supported by the “plain terms” of the Voting Rights Act.

Her minority opinion (no pun intended) puts into perspective precisely what a judicial activist she is and how deeply concerns of ethnicity color her view of the law.

Felon Disenfranchisement, from Ancient Greece to the Present

Felon “disenfranchisement” is the radical idea that those imprisoned for serious infractions of the law should not be voting for those who will make it. This prudent practice has a history in the United States that predates the Constitution. Jason Schall notes in Harvard’s BlackLetter Law Journal that the idea is as old as democracy itself, taking root in ancient Greece and continuing in Rome. The North American colonies adopted sometimes stringent regulations disqualifying anti-social voters:

In Virginia, the franchise was denied to any “convict or person convicted in Great Britain or Ireland during the term for which he is transported.” Maryland disenfranchised citizens upon their third conviction for drunkenness…In Connecticut, first a majority of the town’s freeman, and then the selectmen of the town, had to present a certificate as to the “honest and civil conversation” of an aspiring voter. Rhode Island required that voters be “of civil conversation [and have] acknowledged and are obedient to the civil magistrate.”

Other states restricting voting rights in the nation’s early history included such Jim Crow strongholds as Ohio, Minnesota, California, and Oregon. Even Reiman concedes, “At the time of the ratification of the Fourteenth Amendment in 1868, twenty-nine states had felon disenfranchisement laws. Interestingly, in virtually all of these states, blacks had been legally denied the right to vote based on their race. Thus, the antebellum disenfranchisement statutes cannot be thought to have been racially motivated.”

The second section of the 14th Amendment specifically states voting rights should not be “in any way abridged, except for participation in rebellion, or other crime.” In floor debates on the 14th Amendment, Rep. Ephraim R. Eckley, R-OH, stated, “Under a congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided.” (Emphasis added.)

Disenfranchisement laws were later passed in a discriminatory fashion as part of Jim Crow, often openly so. However, today’s voting rights milieu can hardly be called a racist dream. The vast majority of states allow felons, even violent ones like Mr. Hayden, to regain suffrage rights after completing their sentence, or finishing parole/probation. Maine and Vermont allow felons to vote from prison.

Not only has barring notorious prisoners from the ballot box been a staple of democracy from the Age of Pericles to the formation of the United States, and not only is it specifically permitted by the U.S. Constitution, but the Supreme Court has already settled the issue. In the 1974 case Richardson v. Ramirez, the High Court rejected a previous challenge to such laws. William Rehnquist wrote the decision on behalf of a six-justice majority that included Warren Burger and Harry Blackmun. Will Senate Democrats grill Sotomayor over her view of stare decisis as they did John Roberts?

Although leftists will not, Republicans should. Seeking to overturn several thousands of years of juridical precedent on the flimsiest of bases qualifies Sotomayor as a judicial activist par excellence, and conservatives ought not let the point go unmade because any action against this Latina will bring cries of racism.

The Left’s Criterion of “Racism”

For the contemporary Left to denounce any bill – or anyone – as racist, it need not actually be bigoted; it must simply offend one of the Left’s constituent groups. Jeffrey Reiman, author of the book The Rich Get Richer and the Poor Get Prison, writes that he “supports granting voting rights to felons, even those who are still in prison.” His reason? “Because the vast majority of convicted felons in the U.S., black or white, are from the lower classes, disenfranchisement works simultaneously to dilute electoral representation of blacks and of poor people.” And, he candidly declares, these groups tend to vote Democratic. Since these laws affect the Left, they are bad.

Sotomayor’s Racialist Lens

Such thinking is at the heart of much of Sotomayor’s available legal record. While on the board of the Puerto Rican Legal Defense and Education Fund (now LatinoJustice PRLDEF), she signed a 1981 memo – which she failed to disclose to the Senate – declaring “capital punishment is associated with evident racism in our society.’’ Polls show even most liberals, including Bill Clinton and Al Gore, support the death penalty, and the PRLDEF will never question their allegiance to egalitarianism. Sotomayor denounced the death penalty with reasoning that will sound familiar: “The number of minorities or the poor executed or awaiting execution is out of proportion to their numbers in the population.” (Emphasis added.)

At the time of the memo, Sotomayor was hardly a mere PRLDEF functionary but a self-described “participant in [the] development” of its “policy.” Among the strategies formulated during her years of leadership was an attempt to “attack economic problems of our community.” She is particularly proud of the organization’s “cases attacking civil service testing.” The “attack” in question targeted the New York Police Department. In the 1980s, the PRLDEF found too few minorities could pass the examination required to receive a promotion, so the Legal Left branded it, too, “racist.” Ultimately, it was replaced.

“An Affirmative Action Baby”

Sotomayor’s opposition to test scores in particular and meritocracy in general is caused and reinforced by her personal history. Sotomayor has called herself an “Affirmative Action baby” and does not believe her test scores merited her acceptance at Princeton or Yale Law School. “If we had gone through the traditional numbers route of [entering Princeton and Yale Law], it would have been highly questionable if I would have been accepted,” she said. “With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates.” She quickly moved to scapegoat the test for her failure: “And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of Affirmative Action to try to balance out those effects.” Her personal failure reconfirmed her belief the test is biased and merit is a myth. In a batch of video interviews, she opposed “selection by merit alone.” Such blatant disregard for the outcomes of tests may explain her ready dismissal of the NYPD examination and her ruling against more qualified white firemen in Ricci v. Stefano.

In her life on both sides of the bench, Sotomayor has defined racism not by intent but by “disparate impact.” This is the cornerstone of the myth of Institutional Racism, a myth which President Obama firmly believes. The resultant legal philosophy demands, not equality of opportunity nor equality before the law, but equality of result.

Compare her views with those of Chief Justice John Roberts. As part of the Reagan Justice Department, Roberts drafted memos on why it was vital employers only be prosecuted for discrimination if there were some indication of “intent.” This distinction in judicial philosophy goes to the heart of the understanding of the presidents making each appointment. President Reagan believed the Constitution protected our God-given liberties. Thus, Roberts sees that individuals have the right to pursue happiness in any way consistent with the law, provided they do not discriminate against other, co-equal members of society. President Obama believes “the Constitution is a charter of negative liberties. It says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.” Sotomayor’s jurisprudence restricts the actions of individuals, and even the government, if those free actions negatively impact a preferred minority group. Their Lady Justice is constantly peeking over her blindfold to note the color, sex, and socioeconomic status of the plaintiffs. How else can “empathy” advance the “weak” at the expense of the “strong”?

Sotomayor’s Judicial Philosophy is Obama’s Judicial Philosophy

Before circumscribing his rhetoric to run for president, Professor Barack H. Obama planned “to put together the actual coalitions of power through which you bring about redistributive change.” He stated the Supreme Court can, and should, “take judicial notice of” societal phenomena and interpret the Constitution accordingly. He insisted the U.S. Constitution “reflected the fundamental flaw of this country that continues to this day.” And even on the campaign trail he demanded this flaw be atoned for – by you. “I consistently believe that when it comes to…[racial] reparations, the most important thing for the U.S. government to do is not just offer words, but offer deeds,” he said.

Since poverty, lack of health care, lack of child care, and felony conviction have a “disparate impact” on minority groups, they must be set aright by economic redistribution (sorry, “tax cuts for 95 percent of the American people”), expanding Medicare coverage, moving toward his campaign proposal of universal preschool – and repealing laws against felons voting, even if those felons are currently in prison for violent offenses.

The American people last November were swept away by the rhetoric, charisma, and, yes, celebrity of Barack Obama and the stark contrast between Obama’s empty cadences of hope and John McCain’s hopeless cadences. They did not vote to enshrine the jurisprudence of Balkanization in the High Court.

This article originally appeared as the weekend lead on June 26, 2009, on FrontPage Magazine.