Skip to comments.Rulings trump race for many court watchers
Posted on 07/17/2005 8:05:49 AM PDT by SmithL
Race- and gender-based advocacy groups and bar associations are looking beyond identity as the debate intensifies over the future of the U.S. Supreme Court.
Amidst the calls for another woman, a second black or the first Latino to sit on the court are questions about how a future justice may rule.
"It's the ideology at this point that's more important than the color or gender," said University of Buffalo political scientist Mark Hurwitz.
Sandra Day O'Connor's surprise retirement announcement July 1 and the possibility of one or more vacancies opening this summer have put court watchers in a frenzy.
Calls for minority high court nominees are still prominent, with much speculation that President Bush intends to appoint the first Latino justice.
Women's groups have called for O'Connor's gavel to remain in female hands. And black groups are calling for a black nominee who will uphold 50 years worth of civil rights decisions.
But many of these veteran court watchers, once thrilled to have a black voice or a woman's voice on the bench, now say that the ideological positions of judicial nominees trump racial, ethnic or gender considerations.
The California Association of Black Lawyers, for instance, focuses on identifying qualified black candidates for state judgeships. It is calling for state and federal judges with "a sense of community and an appreciation of cultural differences."
"If Justice (Clarence) Thomas has not displayed that appreciation, we would certainly hope that the president would recognize that void and appoint someone who does," said association president Demetrius Shelton.
Bush and a coalition of conservative groups have already expressed interest in filling any vacancy with a judge philosophically aligned with Thomas.
"When you're a woman or an ethnic minority and a principled conservative, the attacks from the left may be more vicious," said Sean Rushton, executive director of the Committee for Justice, a Washington-based group that promotes conservative judicial nominees.
"Women who question Roe v. Wade and blacks who question affirmative action are made an example of."
Rushton said liberal and conservative groups alike are concerned about ideology.
With high court and state court seats open around the country, including a seat on the California Supreme Court, politicians are scouring the increasingly diverse alumni associations of the nation's top law schools and the lower courts for key nominees.
La Raza Lawyers of California, the state's Chicano/Latino bar association, is recommending qualified Latino judges who have done pro bono work and provided service to the Latino community, said judicial chair Christopher Arriola.
The group opposes Latino judges it sees as holding extreme views.
This includes Miguel Estrada, a Bush nominee who withdrew his name two years ago from consideration for a federal appeals court, Arriola said.
Other groups that once had to fight for access to the judiciary have become mainstays on the high court and lower courts.
For many years, Jews and Catholics were kept out of law schools, effectively keeping them from the bench.
Once universities lifted some religious quotas in the 1920s, unofficial Jewish and Catholic seats became a tradition on the high court, said Santa Clara University law professor Gerald Uelmen.
Blacks, women and Latinos fought their way into law schools and onto the bench later in the 20th century.
O'Connor's 2003 majority opinion that upheld affirmative action at the University of Michigan law school was opposed by the Bush administration. In it, O'Connor asserted that individuals from all racial and ethnic groups should have access to a higher education in order to attain positions of national leadership.
Those leadership positions include seats on the high court. The fact that affirmative action has helped swell the ranks of minority lawyers and lower court judges is not lost on the justices.
"I think judges consider (affirmative action cases) very carefully because that's considered the future of the judiciary," said Arriola.
But the number of candidates for the bench from underrepresented groups influences appointments only until a critical mass is reached, said Oregon State University political scientist Rorie Spill Solberg.
"If there's already a woman on the bench, then it's less likely that a woman will be appointed," Solberg said.
Solberg's research on 30 years of federal appointments shows that women and minority groups are more likely to be appointed to larger federal districts, less likely to be appointed to already diverse courts and, in the case of Latinos, more likely appointed as the pool of eligible candidates grows.
"As far as Hispanics being a rising force in the legal profession, it's more of a recent phenomenon," said Martin Garza, a Dallas-based attorney and vice president for external affairs for the Hispanic National Bar Association.
The association has kept a list of potential Supreme Court nominees of Latino descent.
It recently sent eight names to the White House, including that of Attorney General Alberto Gonzales, 5th Circuit Court of Appeals Judge Emilio Garza and California Supreme Court Justice Carlos Moreno.
"The preference is to have the court be diverse and inclusive and whether that means Hispanic, African-American or women, I think we achieve better results through diversity, through inclusion," Martin Garza said.
Jimmy Carter was the first president to make diversifying the federal courts a priority, University of Buffalo's Hurwitz said.
Reagan's appointment of O'Connor was a symbolic move, followed by a dearth of female and minority appointments, Hurwitz said.
President George H.W. Bush, in replacing Thurgood Marshall, the high court's first black justice, made the argument that the seat did not belong to a black. Then he appointed Thomas.
"He found the only black conservative who was in the federal judicial system," Hurwitz said.
More than half of President Clinton's appointments were women or minorities.
President Bush, with a larger pool of diverse judges than his father had available, had appointed 43 women, 15 blacks, 21 Latinos and one Asian-American out of 204 federal appointments through 2004, Spill Solberg's research shows.
The significant gains by Latino judges in Bush's first term appear to come at the expense of other minority judges and leave nearly the same number of white judges on the bench, Solberg said.
"President Bush and his advisers are smart enough to know that they can find ideological picks and get diversity," Hurwitz said.
But Rushton said balancing ideology and race is a very tricky political game.
"Putting 'the wrong kind of black,' from the left's view, on the court, isn't going to get you any black votes," he said.
Ideology clearly trumped diversity concerns in a carefully worded analysis in which the Association of Black Lawyers opposed former California Supreme Court Justice Janice Rogers Brown's nomination to the District of Columbia court of appeals.
Robert Harris, a founding member of the Black Lawyers concluded the Brown analysis in this way:
"We should always remember that a 'white' Justice (John Paul) Stevens, for example, is a thousand times better for black America than a 'black' Justice Clarence Thomas.
"Looking beyond race must be factored into all our decisions."
In other words, they demand someone who meets the appropriate racial criteria, AND is still on their plantation.
Expecting anything different ?
And, if W REALLY wanted to build an inclusive legacy, he'd consult with Qweezi Mfume and Jesse ("who knows, it may be my kid") Jackson, heck, maybe, selecet one of them.
But, I do like Alcee. With him, there would be no surprises; we know EXACTLY what we'd be getting!