I’m not asking this to be a wise-guy honestly, but why? Is a high percentage overturned a true accurate measure of one’s qualifications? If so why not just select judges based on low overturn percentages?

Zetterson on May 26, 2009 at 5:12 PM

Fair enough, and I’m not wising off either, but the answer is fairly obvious: if you used objective standards for judges, then you would only get well-qualified judges, and not the ideological fellow-travelers and special interest group goodies that are so much fun for politicians.

In addition to her dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), discussed below, in Ford v. McGinnis, 352 F.3d 382 (2d Cir. 2003), Sotomayor wrote an opinion that reversed a district court decision holding that a Muslim inmate’s First Amendment rights had not been violated because the holiday feast that he was denied was not a mandatory one in Islam. Sotomayor held that the inmate’s First Amendment’s rights were violated because the feast was subjectively important to the inmate’s practice of Islam.
If subjective importance is a religious criteria, then the state would have to satisfy all manner of religious demands. I wonder if Sotomayor realized that prison inmates can make any number of demands based on not only subjective but mandated religious rituals. If an inmate practicing Santeria wants to sacrifice a chicken, is the state required to provide said fowl and a knife? It bothers me that Sotomayor regards subjective desires, and not just mandatory requirements, to encumber the state’s treatment of prisoners.

In another example of a dubious decision, a group of prison inmates claimed that the Voting Rights Act applied to them and that the NY state government’s disenfranchising them is a violation of their rights.

In Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), the en banc Second Circuit rejected a challenge under the Voting Rights Act to a New York law denying convicted felons the right to vote. The plaintiffs in the case had argued that in light of the long history of discrimination, both in society and in the New York criminal justice system specifically, the state’s disqualification of felons constituted disqualification based on race. The majority reasoned that Congress did not intend the VRA to apply to state felon disenfranchisement laws. Moreover, extending the VRA to the state statutes would “alter the constitutional balance” between states and the federal government, and the VRA lacked a clear statement by Congress that it intended to upset that balance.
Sotomayor joined the main dissent from the en banc court’s decision but also wrote a short dissenting opinion of her own in which she opined that the issue was actually much simpler than the majority and concurring opinions would suggest: the VRA “applies to all ‘voting qualifications,’” and – in her view – the state law “disqualifies a group of people from voting.” “These two propositions,” she concluded, “should constitute the entirety of our analysis.”
The Constitution provides that each state shall decide on the circumstances of voting for federal officeholders, such as senators and representatives, but that the Congress can change the states’ rules. So far, so good for Sotomayor. It might be argued that Congress intended to supercede state voting laws as a means of overturning Jim Crow laws preventing African-American citizens from voting. I presume that if the VRA was challenged, it was sustained, so if Congress wanted the VRA to apply to everyone, even prison inmates, then there’s no reason why it shouldn’t. However, the Constitution implies that a state can deny the franchise to criminals in the 14th Amendment:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
It took additional amendments to guarantee the right to vote for women and those who are 18 or older. (It says the right to vote can’t be denied because of age.) There is nothing in the Constitution specifically granting the right of felons to vote. In fact, there is no actual “right” to vote listed in the Bill of Rights or the Constitution except as mentioned, without reference to any provision in the body of the Constitution, in those amendments granting suffrage to various classes of people. As for the VRA, it was intended to overthrow Jim Crow laws that prevent blacks or other minorities from voting in designated districts mostly in the south. There is nothing in it, so far as I can tell, granting a right to universal suffrage.

I would have preferred to see Sotomayor discuss why the federal government can impose on the states a requirement that felons can vote despite no Constitutional justification and ample historical precedent to the contrary. I would have liked to see where in the VRA she sees a universal suffrage provision. To simply state that a Congressional fiat supercedes state prerogatives seems deficient in substance and intellectually subjective.

When the last Pres. wanted to nominate Harriet Meirs the conservative base raised hell and we got a more qualified Alito.

The conservative base raised hell primarily because she was never a judge and didn’t have much of an ideological record.

You mean like the BA from Yale and the Harvard MBA of W’s that carried so much weight with the Left?

Cindy Munford on May 26, 2009 at 5:23 PM

Cindy strikes again!
You make way too much sense.

Irony of ironies, identity politics probably cost the left a better justice this time.

Oh like they give a crap. Stick it to the white man!

Now the liberals will circle the wagons and ram through a nominee no more qualified than Meirs and who would stand comfortably at a podium along side Al Sharpton.

Just a teeny little bit of, stark contrast, in quality and moral expectations between the two parties.

But everyone else unanimously thinks they did. Right?

radiofreevillage on May 26, 2009 at 6:02 PM

.
If the left is so sure of the constitutionality of Roe v. Wade, why do they always panic at the thought it might be reviewed?

O’bama won 70% of the high school dropout vote. No Presidential candidate had ever done that before.

Del Dolemonte on May 26, 2009 at 6:57 PM

LOL – though scary. Another precedent for The Precedent.

Update: Further to the above, Obama could have picked a powerhouse like Cass Sunstein if not for the fact that Sunstein’s one of those dreaded un-empathetic white males. Irony of ironies, identity politics probably cost the left a better justice this time.

A blast from the past:

Also see this from Power Line. Hey, maybe Cass Sunstein could be a Supreme Court Justice or something!

Buy Danish on October 28, 2008 at 10:08 AM

Do you actually think with that mind?

progressoverpeace on May 26, 2009 at 6:26 PM

O’bama won 70% of the high school dropout vote. No Presidential candidate had ever done that before.