Satisfying None

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Most of the criticism of President Bush’s selection of Harriet Miers to replace retiring Justice Sandra Day O’Connor has focused on Ms. Miers’s status as a Bush “crony” and her lack of any known judicial philosophy.


Conservatives, many of whom voted for Mr. Bush based on his promise to appoint justices in the mold of Clarence Thomas and Antonin Scalia, are understandably dejected. But conservatives aren’t the only political constituency disappointed with the selection of Ms. Miers.


During the course of two presidential campaigns, Latinos were led to believe that Mr. Bush wanted to make history by appointing the first Latino to the High Court. More than 40% of Latinos voted for Mr. Bush in 2004. In Florida, their support was critical.


When Justice O’Connor announced her intention to retire last June, the Hispanic community felt that their time had come. The case for a Latino was strong: Hispanics make up approximately 11% of the American population, yet no Hispanic has ever served on the High Court. While no one believes that the Supreme Court must precisely mirror the racial and ethnic composition of the country, the appointment of a Latino would have been politically symbolic. Mr. Bush had the opportunity to change the face of the GOP and bring a significant segment of the growing Latino population into the Republican fold. Moreover, the selection of the first Hispanic would have forced Senate Democrats to make a difficult political choice – support the nomination and risk the wrath of left-wing feminist groups (who want the Democrats to oppose virtually any Bush nominee) or oppose the nomination and risk jeopardizing their status with minority voters.


Often mentioned for the post were U.S. Court of Appeals Judge Emilio Garza, Florida Supreme Court Justice Raoul Cantero, Washington super-lawyer Miguel Estrada, and a Republican senator, Mel Martinez. But the name that the press mentioned most often was that of the president’s trusted friend and advisor, Attorney General Alberto Gonzales.


The thought of a Gonzales appointment sent movement conservatives into a rage. Regarded as insufficiently conservative on abortion and racial preferences, Mr. Gonzales became “the guy to stop.” Many conservatives pinned their hopes on three conservative, white-male Court of Appeals judges: J. Michael Luttig, Michael McConnell, and John G. Roberts.


When the president selected Judge Roberts to replace Justice O’Connor, conservatives were pleased. The Latino community, while disappointed, remained quiet. They respected the president’s choice and suspected that this would not be the president’s only opportunity to place his stamp on the High Court. While radical Latino groups such as MALDEF opposed Judge Roberts, the mainstream Latino organizations took no position – a sign of their disappointment as well as their hope for the future. Then Chief Justice Rehnquist died, and the political dynamic changed. Mr. Bush nominated Judge Roberts to be chief. Justice O’Connor’s seat was open once again.


The president had already filled one seat with a white man, and he now came under enormous pressure to appoint a woman. Nevertheless, Hispanics maintained hope that the appointment of a Latino could trump concerns about maintaining a particular gender balance on the Court. Movement conservatives once again panicked at the thought of a Gonzales nomination. In their frenzied attempt to “block” Mr. Gonzales a second time, conservative activists failed to come up with the name of a solidly conservative Latino they could unite behind. Most of them still hoped that the president would select Judge Luttig or Judge McConnell and stressed that judicial philosophy, not ethnic politics, should be the only factor for consideration.


What the conservatives failed to understand is that judicial philosophy and ethnic politics are not mutually exclusive considerations. Mr. Gonzales, of course, was not the only plausible Latino appointment. Many conservatives, however, were prisoners of their own stereotypes. To their minds, the choice was one between an insufficiently conservative Latino (read Gonzales),and a solidly conservative white man (read Luttig or McConnell).This was a false dichotomy.


A president need not sacrifice judicial philosophy in order to satisfy a particular interest group. Philosophy is and should always be the sine qua non for selecting Supreme Court justices. But political symbolism is important too, and symbolism is not the same as racial quotas. One need not subscribe to the view that individual seats on the Court “belong” to certain constituencies to understand that the Court needs some measure of diversity in order to maintain its institutional legitimacy.


To the suggestion that such considerations should never come into play, one need only mention the names of Louis D. Brandeis, Felix Frankfurter, William J. Brennan, Thurgood Marshall, and Sandra Day O’Connor – meritorious lawyers all whose nominations reflected in part religious, racial, or gender considerations.


And what of Clarence Thomas and Ruth Bader Ginsburg? In nominating Justice Thomas, George H.W. Bush selected a jurisprudential conservative with the unique perspective of having grown up poor and black in the segregated South. In nominating Justice Ginsburg, President Clinton selected someone who would both increase the diversity of the Court and move the Court to the left. These appointments were political and jurisprudential home runs for the presidents who made them and perfect examples of the principle that judicial philosophy need not be sacrificed when considering politics.


By failing to get behind a conservative Latino candidate, such as Mr. Martinez or Florida Supreme Court Justice Raoul Cantero, conservatives left the president in a bind. A Gonzales appointment would have enraged the president’s base; the appointment of another white male would have enraged the special interest groups and their Democratic allies. So, he turned to a woman – his friend, Harriet Miers.


Perhaps the choice was never wide open. Perhaps, having watched his father follow his advisers off a cliff in selecting David Souter, the president only felt comfortable selecting a friend. It may be that his “short list” was shorter than we think and that the president was only deciding between two loyal advisors – Mr. Gonzales and Ms. Miers. Between the two, no one knows for sure who would have been the more judicially conservative justice. But one thing is certain. The appointment of Ms. Miers does nothing to alter the political landscape, whereas a Gonzales appointment had the potential to create a major shift in electoral politics for generations to come.


The appointment of a Hispanic would have served another important function – a blocking function. In making such an appointment, the president would have eliminated the political imperative for the next Democratic president to do so, thus ensuring that the first Hispanic on the High Court had at least some conservative sensibilities and rejected the jurisprudence of victimhood. As between Mr. Gonzales and a left-wing Hispanic appointed down the road, would not Mr. Gonzales have been the better choice? Unfortunately, conservative activists failed to understand this big picture. So did the president.


But Latinos – particularly conservative Latinos who hoped that the president would pick a Hispanic who would shift the Court to the right – have every reason to feel disheartened, if not betrayed. In filling the second vacancy on the United States Supreme Court, Mr. Bush had two significant opportunities: He had the chance to alter the balance of the Court, and he had the chance to make history. Ideally, the president would have found someone who satisfied both objectives. The selection of Harriet Miers seems to satisfy neither.



Ms. Braceras is a visiting fellow at the Independent Women’s Forum and a commissioner on the U.S. Commission on Civil Rights.


The New York Sun

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