by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

Yesterday, we discussed here a recent speech in which Senate Judiciary Committee Chair Sen. Patrick Leahy showed that a Supreme Court ruling in NAMUDNO v. Holder striking down a core provision of the Voting Right Act “would be conservative activism pure and simple.” As Sen. Leahy explained, such a ruling would fly in the face of the text and history of the Fifteenth Amendment, which was written to give Congress a central role in securing the right to vote. Sen. Leahy made clear that conservative disregard of the Constitution’s express grant of powers to Congress to protect the civil and political rights of all Americans should be front and center during Judge Sotomayor’s upcoming confirmation hearings before the Senate Judiciary Committee.

Today, Robert Barnes of the Washington Post highlights here the fact that Sen. Arlen Specter, another member of the Judiciary Committee, also intends to focus the hearings on recent Supreme Court decisions that invalidated acts of Congress passed to secure the guarantees of the Civil War Amendments. In a letter to Judge Sotomayor outlining questions that Sen. Specter intends to pose to her at her upcoming hearing, Sen. Specter expressed dismay at how the Supreme Court has repeatedly second-guessed Congress’ legislative findings made in support of statutes enacted to secure to all Americans constitutional protections of liberty and equality, as well as his worry that the Court would do so again in the NAMUDNO case.

Sen. Specter contrasted Chief Justice Roberts’ testimony during his confirmation hearings – when nominee Roberts pledged to defer to Congress’ greater expertise and fact-finding powers – with the Chief Justice’s questioning during the NAMUDNO oral argument, impugning Congress’ findings that the Voting Rights Act’s preclearance requirement was still necessary to prevent and deter racial discrimination in voting. Comparing the two, Sen. Specter found that “Chief Justice Roberts suggested a very different attitude on deference to Congressional fact-finding than he expressed at his confirmation hearing.”

Senators Leahy and Specter are right to focus attention as part of Judge Sotomayor’s confirmation hearings on the Supreme Court’s rulings that refuse to honor the Constitution’s express grants of power to Congress to secure liberty, equality, and the right to vote. As CAC’s recently-released report, The Shield of National Protection, shows, the Supreme Court’s cases in this area have gotten the text and history of the Constitution dead wrong. Rather than recognize that the Civil War Amendments give Congress a central role in enforcing liberty and equality and that congressional enactments designed to protect fundamental rights deserve substantial deference, the Court’s conservative Justices have created new, picked-out-of-thin-air restrictions on the power of Congress to prevent and deter state violations of constitutional rights.

If the Supreme Court extends these rulings to invalidate a key portion of the Voting Rights Act in its forthcoming decision in NAMUDNO, it will further show that the Court’s conservative Justices cannot be trusted to respect the text and history of the Constitution, and the need for Justices who will. As indicated this week by Senators Leahy and Specter, these issues and the ruling in NAMUDNO will quite appropriately form an important framework for Judge Sotomayor’s confirmation hearings.