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EDITORIAL: Sotomayor snubs the Senate

- The Washington Times - Monday, July 27, 2009

Senators of both parties should be offended by the evasive and misleading answers Supreme Court nominee Sonia Sotomayor provided to written questions senators submitted following her July 13 through 17 public hearings. The Senate should not accept such evasiveness.

Of particular note is Judge Sotomayor's dodge of a highly important question from Alabama's Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, concerning her dissenting opinion that murderers and rapists have a right to vote while still behind bars. The relevant part of the question read as follows: "Doesn't your dissent in [the case] ignore the fact that the convict's crimes and not any state-based racial discrimination made the felons ineligible to vote?"

The judge's answer repeated her bizarrely brief opinion that "the plain terms of the statute" outlaw all racially disparate "qualifications" for voting. She wrote: "I concluded, based on the unambiguous terms of Section 2 [of the Voting Rights Act] that a law disqualifying felons from voting constitutes a 'voting qualification.' "

Never mind that every other judge on her circuit court found the question complicated enough, ambiguous enough, to spend dozens of pages discussing it. Never mind that Section 2 forbids denial of the vote "on account of race," which means "because of" -- and that nobody ever claimed felons are kept from voting because of their race. Mr. Sessions' question specifically noted that it was not the state that disqualified the felons from voting, but the felons' own actions. His question was clearly -- in her terms, "unambiguously" -- aimed at that distinction.

Not one word in her written answer addressed that distinction. Her answer was not in the slightest bit responsive to the question.

Mr. Sessions also asked a series of questions about Judge Sotomayor's work on the board and the litigation committee of the Puerto Rican Legal Defense and Education Fund. The senator repeatedly asked whether "the law was settled" on various abortion-related issues. Each time, the judge refused to answer whether the law was settled. Instead, for six different questions, she provided the exact same answer, word for word, full of carefully parsed sentences disclaiming almost all responsibility for the Puerto Rican Legal Defense and Education Fund's legal briefs.

Likewise, troubling three-way contradictions have developed in Judge Sotomayor's answers regarding the use of, or reference to, foreign laws in the course of an American judge's work. Her speeches seemed to indicate one approach; her live answers during the hearings suggested a different standard; and her written responses moved back closer to her speech positions -- all while claiming to be consistent.

M. Edward Whelan III, president of the Ethics and Public Policy Center, said: "Sotomayor's oral testimony [when compared to the written testimony and her speeches] ought to be recognized to be scandalously deceptive and to provide sufficient cause to oppose her confirmation." That judgment was rendered separate from examining the merits of her claim that the "ideas" of foreign laws should sometimes be gleaned in the course of analyzing American court cases. No amount of verbal obfuscation can hide how wrongheaded that notion is.

A judge who is so dismissive of legitimate questions from legislators while her nomination is pending is likely to be insufficiently deferential to the legislative process after she is confirmed. That's another reason not to confirm Judge Sotomayor.