On Sotomayor: Judge Koschnick's two-sense

Part One of Three

Jefferson County Circuit Judge Randy Koschnick, the conservative Republican who conducted an often unintelligible political campaign against Wisconsin Supreme Court Chief Justice Shirley Abrahamson earlier this year, is back, and he seems to be mightily confused.

Appearing as a guest blogger at the highly regarded conservative Republican echo chamber "Boots & Sabers," Koschnick wants to say that U.S. Supreme Court nominee Sonia Sotomayor is a "liberal activist" — and he does, ten times — but he's as incoherent as ever.

Beneath the highfalutin rubric "Judge Koschnick Opines on Judge Sotomayor," Koschnick claims that Sotomayor is "nothing short of supremely unqualified and significantly flawed" and alleges that confirming her to the Court would be a collective Senatorial act of "intellectual dishonesty" (the latter was also a charge Koschnick leveled toward Shirley Abrahamson without one iota of support).

Koschnick selects three cases, labels this an "examination of her record," and concludes that, as they all contain "serious defects," Sotomayor's "record" is that of an "unapologetically liberal activist."

Unfortunately Koschnick's sweeping criticisms barely make any sense, especially issuing from a self-described "strict constructionist."

Randy Koschnick might be a good circuit judge and an effective political panderer to the credulous "Boots & Sabers" aficionados, but he's not much of a convincing theorist.

First of all, and speaking of serious defects, it would certainly appear that Judge Koschnick hadn't known that the expressions "felon disenfranchisement" and "felony disenfranchisement" both mean exactly the same thing and are therefore interchangeable.

In some compound legal terms, "felony" precedes another word and acts as a sort of adjective. As in, for example, felony theft or felony battery. These are meant to distinguish from misdemeanor theft or misdemeanor battery — felony and misdemeanor denote the seriousness of the offense, and thereby the potential for sentencing to different periods of incarceration upon conviction.

Then there is felony murder, where an unintended homicide is caused during the commission of some other felony crime.

In all those instances, "felony" describes the offense. Perhaps they are what Judge Koschnick had in mind when he undertook his "examination of Sotomayor's record." (In fact her record consists of thousands of cases. Koschnick "examines" three. But never mind.)

Except that isn't the case with the term "felony disenfranchisement."

Felony disenfranchisement refers to one's losing the voting franchise on account of having been convicted of a felony. Those convicted of felonies are known as felons. Hence the interchangeability of the terms "felony disenfranchisement" and "felon disenfranchisement."

In other words, it isn't the disenfranchisement that's a felony, it's the fact that the disenfranchisement from the privilege of voting kicks in upon conviction of a felony. Many States have such provisions.

(And they are, to say the least, controversial.)

Apparently Judge Koschnick the "strict constructionist" isn't aware of these not-so-subtle semantic distinctions. Koschnick opines of Sotomayor's three-paragraph contribution to a 2006 Second Circuit Court of Appeals en banc decision called Hayden v. Pataki:

In her dissenting opinion, she goes so far as to identify the plaintiff, convicted murderer Joseph Hayden, as a victim of something that she calls "felony disenfranchisement."

Goes what who? She makes an innocuous, descriptive statement.

True, it's something that she calls felony disenfranchisement. She, together with thousands of other judges, lawyers, and scholars. Some of whom, other than Sotomayor, actually use it elsewhere in the Hayden opinions (there are several among its 103 pages).

But Sonia Sotomayor never called Joseph Hayden* or any of the numerous other plaintiffs "victims" of anything, nor did she even remotely suggest that it was the disenfranchisement itself that was a felony, which is clearly what Koschnick thinks she meant.

Or — worse — what he wants the credulous to believe she meant.

That misstep has got to be a little embarrassing for Koschnick, who advertised himself as "more qualified" to sit on the Wisconsin Supreme Court than is its Chief Justice. Moreover, he should have kept at reading Sotomayor's opinion:

It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that § 5-106 [the New York State statute at issue] 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.

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.

Sounds a lot like sentiments that should warm the cockles of any self-restrained, self-described "strict constructionist," do they not?

Indeed, they could well have been authored by Clarence Thomas.

So why did Randy Koschnick choose to completely ignore that passage, which summarizes Sotomayor's view of the case, and instead focus on a term it's not clear he even understood?

Because, obviously, he simply doesn't care for her result.

* No relation, I hope.

Next: Sotomayor is not enough of a liberal activist for Koschnick