For example, Goldstein omits the extremely important case of Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), in which Judge Sotomayor joined a dissent containing what Chief Judge Walker called “novel equal protection theories that … would severely impact police protection.”

Similarly, Thomas Goldstein’s analysis of Sotomayor’s rulings overlooks Sotomayor’s dissent in Hayden v. Pataki, which rejected a Voting Rights Act challenge to New York’s law barring prison inmates from voting. Sotomayor’s argument that prison inmates should be allowed to vote, not just those felons already released from prison, was truly unprecedented and radical.

Sotomayor’s position conflicts with both the language of Section 2 of the 14th Amendment, which expressly reserves to states the ability to bar felons from voting, and statements by the framers of the Voting Rights Act and the Reconstruction Amendments, who approved of denying felons the right to vote, to claim that prison inmates should be allowed to vote.

If prison inmates could vote in the sparsely-populated rural county in which their prison is located, they could potentially dominate voting for county offices, producing very strange and anomalous results.

It is also simply strange to argue that prison inmates, who have not paid their debt to society, and have violated society’s rules, should be allowed to set society’s rules by voting on ballot initiatives that make law, and by selecting lawmakers through the franchise.

(Of course, if a state deliberately gerrymanders its felon-disenfranchisement laws to cover only crimes committed by black people, and not white people, out of racist intent, that can violate Chief Justice Rehnquist’s decision in Hunter v. Underwood. But Judge Sotomayor did not allege any such thing in the Hayden case, nor did the case involve any such racial discrimination. And a blanket ban on prison inmates voting, not motivated by racial bias, is perfectly legal, and perfectly constitutional, as has long been recognized).