May 8, 2009
By Gebe Martinez
New America Media
It is supremely ironic that on the same day House Republicans released a web video equating Hispanic lawmakers to terrorists, conservatives faced the great possibility of a first-ever Hispanic appointment to the U.S. Supreme Court.
The divided Republican Party, confusingly slow to grasp the reality of the ever growing Latino population and vote, now must decide how to attack President Obama’s first pick for the high court amid high expectations it could be a Hispanic.
A leading candidate is Sonia Sotomayor, 54, a Bronx native of Puerto Rican descent who has served on the U.S. Court of Appeals for the Second Circuit since 1998.
Sotomayor, a moderate jurist, was appointed to the federal bench by President George H.W. Bush and promoted to the appellate court by President Clinton.
“She’s been vetted and she’s someone who is highly respected and very smart,” said Angelo Falcon, a political scientist from New York and president of the National Institute for Latino Policy. She is not an ideologue but has a pragmatic streak, Falcon noted.
Should Sotomayor be nominated, “there are people that will say that (Obama) is just pandering to the Latino community, although she’s not that kind of candidate,” Falcon added. In other words, she would be qualified, despite her ethnicity.
But conservatives say Sotomayor is too “radical” for the Supreme Court, and refer to her own use of her ethnic background.
Sotomayor’s “personal views may cloud her jurisprudence,” according to a memo being used by her critics. “Judge Sotomayor explained in a 2002 speech at Berkeley, she believes it is appropriate for a judge to consider their ‘experiences as women and people of color’ in their decision making, which she believes should ‘affect our decisions.’”
Legal conservatives do not believe a diverse life experience should trump facts of the case and the law. But President Obama gives it importance.
In announcing Justice David H. Souter’s retirement, the president said he wants a replacement who is “dedicated” to the rule of law and understands how laws affect people’s daily lives “whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.”
That person, he added, should have the “quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient” for arriving at legal decisions.
Sotomayor’s biography suggests struggles and hopes.
Her father, a tool-and-die factory worker, died when she was nine. Her mother, a nurse at a methadone clinic, raised Sotomayor and a younger brother in a public housing project.
Sotomayor graduated with honors from Princeton University and became an editor of the Yale Law Journal. She was a prosecutor in the Manhattan District Attorney’s office, and she was still in her 30s when she was appointed judge in New York’s Southern District.
A leading Democratic voice on judicial nominations, Sen. Charles Schumer of New York, and the state’s other senator, Kirsten Gillibrand, urged Obama to name Sotomayor or alternatively, Interior Secretary Ken Salazar.
Rep. Nydia Velazquez (D-N.Y.), a Puerto Rican who heads the Congressional Hispanic Caucus, also has pushed Sotomayor’s appointment.
Naming a Hispanic would soothe frayed nerves among Latino leaders.
The Hispanic caucus wants House Republicans to apologize for posting an ad assaulting the president’s anti-terrorism policies that shows Hispanic lawmakers meeting with President Obama along with images of terrorist training camps and flag burning protestors.
The National Hispanic Leadership Agenda, a 29-group coalition, also hit Obama last week for being “below target” in his appointments of Latinos to his Cabinet and other top positions, even though he “is very much aware of the fact that Hispanics helped him carry 14 of 16 major electoral vote states” in addition to North Carolina, Virginia and Indiana.
Latino leaders will unite behind a Hispanic nominee. Past rivalries between sub-groups of Hispanics for high profile appointments gave way long ago to the greater good of the community.
“There is no one on that court today who understands the every day lives of Latinos,” said Arturo Vargas, executive director of the National Association of Latino Elected and Appointed Officials. The court “needs to have the perspective of this segment of U.S. society” to dispense equal justice, Vargas said.
Sotomayor’s work continuously scrutinized given her possible rise to the Supreme Court shows diversity.
She signed an order against major league baseball owners in 1995 that ended a long strike by the players union.
In 1999, she sided with prosecutors by clearing the way for the first federal death penalty trial in Manhattan in more than four decades, in a case involving a suspected Bronx gang leader.
Opponents will likely focus on a case just argued before the Supreme Court, Ricci v. DeStefano.
The City of New Haven, Conn., was sued by a group of white firefighters, including one Hispanic, who claimed discrimination after the city disregarded results of a promotional exam because no African-Americans who took the test qualified for promotion.
A three-judge panel, including Sotomayor, issued a briefly worded ruling for the city without addressing constitutional issues. The full appeals court, by a 7-6 vote, let the decision stand but dissenters, led by Judge Jose Cabranes, another Clinton appointee, chastised the panel’s handling of the appeal.
Detractors will be challenged to question the record without regard to the nominee’s gender, race or ethnic background. Given Sotomayor’s solid standing and her initial placement on the bench by the first President Bush, that may be hard to do.
Sotomayor “happens to be very able. She’s a hard, hard worker,” said Henry Paul Monaghan, a Columbia Law School professor, in the school’s magazine. It was a candid assessment, given his preference for conservatives like U.S. Supreme Court Chief Justice John Roberts and Justice Samuel Alito.
Nominations reflect political reality. Conservatives will disagree with President Obama, but it is his choice to make.
Gebe Martinez, a veteran Washington journalist, is a regular contributing columnist for Politico and a frequent lecturer and commentator on the policy and politics of Capitol Hill.