by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

This morning, several Republican Senators took to the Senate floor to make speeches outlining their “concerns” about Supreme Court nominee Sonia Sotomayor. By and large, the speeches were entirely predictable, and if I’d been playing a drinking game keyed to mention of Judge Sotomayor’s “wise Latina woman” remark, I’d have been three sheets to the wind by lunchtime.

But who could have predicted that Senator Jeff Sessions, Ranking Member of the Judiciary Committee, would be critical of Judge Sotomayor for following the words of a statute? That’s right. Sen. Sessions spent much of his time this morning criticizing a dissent by Judge Sotomayor in the case of Hayden v. Pataki, which we’ve written about here, in which Judge Sotomayor followed the plain words of the federal statute in question, apparently to Sen. Sessions’ dismay. Who knew?

The plaintiffs in the case had challenged New York’s felon disenfranchisement law as a violation of the Voting Rights Act of 1965 (VRA), which prohibits voting laws and practices that result in racial discrimination in voting. The plaintiffs claimed that the state law, which prohibits convicted felons from voting until pardoned or cleared from parole, violated Section 2 of the VRA, which provides that:
[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied in any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the of the United States to vote on account of race and color.
The district court dismissed the complaint at the pleading stage, before the plaintiffs had an opportunity to prove their case. The question on appeal was whether the VRA applied at all. When the full Second Circuit heard the case it ruled, 8-5, that it did not. Judge Sotomayor was among the dissenters. In addition to joining a dissent by Judge Parker, Judge Sotomayor also wrote one of her own, a brief and simple opinion to make the point that the many pages of the majority and concurring opinions had given the impression that the case was complex, when it was not. According to Judge Sotomayor:
It is plain to anyone reading the Voting Rights Act that it applies to all “voting qualification[s].” And it is equally plain that [the New York statute] 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.
When Sen. Sessions criticized Judge Sotomayor today over her dissent in this case, he began with a mischaracterization of her dissent, claiming that Judge Sotomayor had held that felon disenfranchisement laws violated the Voting Rights Act. She had held no such thing. All her dissent would have done is allowed the plaintiffs to have their day in court in an effort to prove that the New York statute discriminatorily denied African-American and Latinos their right to vote. The merits of the case were not at issue on appeal at all, only whether the VRA was even applicable to felon disenfranchisement laws.

Perhaps more astonishing, however, was that Sen. Sessions claimed that Judge Sotomayor would no doubt defend her dissent by saying that she’d been a “strict constructionist” by literally applying the Voting Rights Act to the case. The Senator said that he preferred the term “fair constructionist,” and that he did not think it a “fair construction” of the Voting Rights Act to use it to overturn felon disenfranchisement laws.

So let’s get this straight. Sen. Sessions is objecting because Judge Sotomayor followed the plain language of a statute? Apparently he would have preferred the majority opinion, which used arguments rooted in legislative history to undercut the result compelled by the clear statutory text in order to get a preferable result – an approach that Justice Antonin Scalia, for one, has criticized.

In her dissent in Hayden v. Pataki, Judge Sotomayor stated that “[t]he duty of a judge is to follow the law, not to question its plain terms.” Does Sen. Sessions really want judges who don’t feel compelled to follow the law?