Today’s announcement by President Obama of the nomination of Sonia Sotomayor to the Supreme Court brought a great deal of excitement to the Hispanic community. Discounting Justice Cardozo (of Portugese ancestry), Sotomayor will be the first Hispanic justice on the court. Yet, the excitement is understandable — few can discount the pride groups may feel at having one of their own ascend to the highest court in the land. The excitement over Sotomayor is no different than the enthusiasm Italian-Americans felt over the nomination of Justice Scalia or that African-Americans felt over the nomination of Justice Marshall. But amidst the hoopla, now is a good time to remember another lawyer who, had he been held merely to the same standards of Sotomayor, may well have been the first Hispanic justice: Miguel Estrada.
In 2001, President George W. Bush nominated Estrada to the Court of Appeals for the D.C. Circuit. Yet Estrada’s nomination unleashed a furious Democratic opposition. A staffer to Sen. Dick Durban, who sits on the Senate Judiciary Committee, noted that liberal interest groups saw Estrada as “dangerous”, because he was “Latino and the White House seems to be grooming him for a Supreme Court appointment.” The memo stressed that these groups wanted to “hold Estrada off as long as possible.”
Democrats, many of whom now praise the nomination of Sotomayor, mobilized to deny Estrada even the courtesy of a Senate vote. While one may justify the use of such extreme tactics for a Supreme Court nomination, the Democratic filibuster to avoid voting on his nomination was the first ever used against the nomination of a judge to a circuit court. Despite the efforts of Republicans to force a Senate vote, after seven cloture votes (a Senate process designed to bring debate to an end) and twenty-eight months, Estrada gracefully requested that the president withdraw his nomination. Gleefully, Sen. Kennedy claimed the defeat of Estrada as “a victory for the Constitution” while Democratic Sen. Zell Miller sadly noted that Estrada had “become the latest victim of Washington’s partisan, obstructionist politics.”
Forgotten after the battle was that LULAC (the League of United Latin American Citizens), the largest and oldest Hispanic advocacy group in the nation had unequivocally called on the Senate to confirm an “exceptionally well qualified candidate.” The American Bar Association, certainly no ally to conservative candidates, had certified him as “unanimously well qualified” – their highest rating. Even NBC News noted during a report on the Estrada stand-off that Democrats did not “dispute Estrada’s qualifications”
Why then one may ask the Democratic enthusiasm for Sotomayor where Miguel Estrada was not even allowed an up or down vote? Comparing their academic pedigrees, there is little difference. Sotomayor graduated from Princeton University, summa cum laude, and then from Yale Law School, where she served as editor of the Yale Law Journal. After law school, Sotomayor served as an Assistant District Attorney in Manhattan before entering private practice in a small New York firm. Surprisingly, Sotomayor was nominated to a seat on the U.S. District Court for the Southern District of NY in 1991 and only six years later nominated to the 2nd Circuit Court of Appeals.
Estrada also graduated from distinguished institutions: magna cum laude from Columbia University and then magna cum laude from Harvard Law School, where he was also editor of the Harvard Law Review. Upon his graduation, Estrada served as a law clerk to Judge Amalya Lyle Kearse, a well-respected African-American judge on the Second Circuit, and followed this stint with a clerkship in Supreme Court Justice Kennedy’s chambers. In the legal profession, there is no more sought after position: 40,000 new lawyers graduate each year from American law schools, yet each year only 36 are selected to clerk for a Supreme Court justice. Estrada followed this position with a stint at a prestigious New York law firm, before reentering public service as an assistant U.S. attorney in the influential Southern district of New York. This job was followed by an appointment as assistant Solicitor General in the Justice Department in the Clinton Administration during which time he represented the United States government in numerous appellate matters.
Yet, despite this stellar resume, the same Senators who stand ready to place Sotomayor on the Supreme Court refused to even vote on Estrada’s nomination. Perhaps the new requirement of judicial “empathy” might be the difference? Sotomayor was, after all, born in the Bronx and grew up in a housing project in that borough. After the loss of her father, she was raised by her single mother. Yet, Miguel Estrada may also bring much “empathy” to judicial decision making. Not only is he a Honduran immigrant, but only reached the United States at the age of 17, with little knowledge of the English language. He joined his single mother and in five years had mastered English and navigated a new culture well enough to graduate with distinction from Columbia University. Whatever challenges Sotomayor may have experienced in her life, it is clear that Miguel Estrada has also overcome many struggles.
Immigrants of Hispanic descent should take pride in the nomination of Sonia Sotomayor to the highest court in the land. But they would do well to remember that the very party which so trumpets her nomination also acted to deny another individual of similar ethnicity and origins a chance at reaching the pinnacle of the legal profession. Sonia Sotomayor is poised to assume a seat on the Supreme Court. Miguel Estrada, on the other hand, equally qualified by any measure is not a judge, at any level, and not even employed in public service.
Only in America.
18 responses so far
1 // May 26, 2009 at 10:07 pm
And what . . . your great insight here is that Democrats opposed a Republican nominee, apparently because of political differences, even though he was qualified, which is exactly what Republicans will do with Sotomayor?
Not only is this not noteworthy, it was even contemplated and provided for by the founding fathers when they invested the Senate, an innately political body, with the power to approve or reject a nominee.
2 ottovbvs // May 27, 2009 at 6:07 am
Unfortunately Mali is forgetting the reasons why Estrada didn’t make it onto the DC circuit and they had nothing to do with ethnicity or identity politics and everything to do with his legal history and the paper trail that existed documenting that history. Estrada unlike Sotamayor wasn’t remotely in the legal mainstream. He was a hard right jurist and there were the records to prove it. Sotomayor is a liberal justice but not stridently or demonstrably political. She’s well within the 40 yard line of liberal legal jurisprudence whereas Estrada was well over the conservative 40 yard line. This is the reality despite all the emotionalism from Mali.
3 sinz54 // May 27, 2009 at 6:21 am
ottovbs: The same liberal organizations who opposed Estrada, such as People for the [liberal] American Way and their ilk, also opposed Roberts, who was never an ideologue. So I find this “out of the mainstream” argument very hard to take.
Now if you’re going to oppose Roberts, who was never an ideologue, you are basically saying that ANY conservative is ipso facto unacceptable. And that’s what Obama did. He acknowledged Roberts’ talent but said he would oppose Roberts on the grounds that Roberts wasn’t liberal enough for him.
Did YOU oppose Roberts?
Who the heck on the Court is “in the mainstream” to you?
4 barker13 // May 27, 2009 at 7:47 am
Re: Sinz54; 6:21 AM –
(*SNORT*)
Good luck debating Otto on this, Sinz; I glanced at his post earlier and upon noting not one actual example of Estrada’s supposed “non mainstream” legal history simply took it for what it was – partisan smears.
BILL
5 sinz54 // May 27, 2009 at 9:19 am
ireign: We should use these nomination hearings NOT just to delve into Sotomayor’s philosophy–but Obama’s as well.
As I pointed out to ottovbs,
Obama voted against Roberts, solely on the grounds that Roberts’ white skin and conservative judicial track record made him insufficiently “empathetic.” He clearly sees Sotomayor as the anti-Roberts: Instead of an objective “umpire” (as Roberts described his job), she wants to be a cheerleader for minorities and women. That’s totally inappropriate for the Supreme Court. I didn’t like it when Thurgood Marshall appropriated that role in the 1960s either.
And if that doesn’t tell you enough about Obama’s philosophy, this will:
“The Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasnt that radical. It didnt break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states cant do to you. Says what the Federal government cant do to you, but doesnt say what the Federal government or State government must do on your behalf, and that hasnt shifted….”
— Barack Obama, 2001
http://www.youtube.com/watch?v=iivL4c_3pck
6 // May 27, 2009 at 9:21 am
Sinz @6:21AM: Of course people opposed Roberts b/c they thought he was too conservative. Lots of conservative nominees have been opposed b/c of their conservative bent. And lots of nominees have been opposed b/c of their liberal bent. That is exactly what is going to happen to Sotomayor.
Mali is acting like their is some hypocrisy b/c Estrada, while Hispanic, was oppposed b/c of his conservatism. This is not hypocritical and, as I pointed out below, it contemplated and provided for by the founding fathers.
However, Mali’s worse offense is the implication that Democrats care ONLY about a nominee’s ethnicity and not about his/her record. His analysis is shallow and useless analysis.
7 ireign // May 27, 2009 at 9:27 am
Spartacus, that is incorect. Republicans overwehlmingly confirmed Ginsburg and Breyer. This is a recent trend by Democrats that started with Bork and continued with Alito and Roberts. Scalia, was more conservative than any of them and won confirmation unanimously.
The Democrats started us down an awful road and now to add fuel to the fire, they nominated someone for what appears to be political reasons.
8 sinz54 // May 27, 2009 at 9:28 am
ireign: I’ve been surfing the Internet to try to learn just what liberals didn’t like about Miguel Estrada.
And surprise! It’s the exact same stuff they didn’t like about John Roberts!
They must have a reusable Microsoft Word template that includes such cliches as “out of the mainstream,” “far-right-wing,” “rolls back protections for minorities,” “refused to answer,” and so on. (No nominee for any Court is going to state a position on any case in advance.)
Whenever a conservative is nominated to the Court–or to any Court–they just fill in his name in the template, print it out and hand it to sympathetic reporters.
They lost all credibility when they opposed Roberts. That proved they just didn’t want any conservatives on the Court at all.
9 sinz54 // May 27, 2009 at 9:31 am
Spartacus: I was responding to ottovbs’ “out of the mainstream” nonsense.
You’re honest, in that you realize that liberal activists don’t want conservative judges. But AFAIK, conservatives have not wrecked any liberal’s nomination by filibuster since Fortas in the 1960s. It’s been mostly conservative nominees who have had to run a gauntlet of hysterical screeching feminists and environmental activists.
10 // May 27, 2009 at 9:36 am
Sinz: Do you have any evidence Obama opposed Roberts b/c of his race? Of is this simply something you have surmised b/c he picked a Latino? If it’s the latter, you should be careful in the future not to accuse liberals of playing the race card.
You act as if this notion of an “objective umpire” has been a mainstay of SC jurisprudence. If that was the really the case we would not be able to now look back at so many cases and see that they were wrongly decided. If it’s clear to us today that Dred Scott, Korematsu and others were bad law, why wasn’t it clear to the court at that time? Did the justices simply not understand the words in the Constitution, or were they more empathetic to the societal norms at that time. Based on those courts abilities to rule correctly on so many other cases, I think it’s clear that they were being empathetic.
As for the statement by Obama that you posted, it is not a value judgment. It’s a statement of fact, with which most reasonable people would agree. The Warren court did not take up many economic issues. Instead, it focused primarily on social and criminal issues.
11 // May 27, 2009 at 9:48 am
ireign: Ginsburg and Breyer were overwhelmingly approved by the GOP, but I think most people would agree that they were both closer to the center than Bork was. Also, Dems may have been more active in opposing nominees, in large part, b/c there have been more GOP nominees to oppose.
Also, many people on both sides will raise more strenuous opposition depending on whether or not a nominee is likely to change the balance of the court.
I personally don’t have any problem with openly opposing a nominee on political grounds. I don’t mean to pick on social conservatives, but I believe a lot of this started when they began to focus on the SC as the sole way of reducing abortion. We can’t openly ask if a nominee will overturn Roe so we simply look at all of the person’s other cases to see if it’s likely s/he will overturn or uphold it, and then we hide behind a pretext of allegations that the person is not qualified depending on how we think s/he will rule on Roe.
Both sides are very political on this.
12 ireign // May 27, 2009 at 10:47 am
Spartacus-liberal academics think that. Few who are actually familiar with Rasmussen or Zogby or any other poll do. I doubt you are fully informed regarding Bork’s judicial philosophy. Ginsburg, was the chief litigator of the ACLU’s women’s rights project. While the ACLU is very well respected amongst legal academics it is pretty outside the mainstream for most Americans. Dukakis lost an election in part based on his membership in the organization.
Democrats have been more active in opposing nominees because of liberal interest goups and because of certain Democrats on the judiciary: Schumer, Biden, and Leahy, have been far more strident than Hatch. Biden, a few years before the Bork nomination had indicated his support for Bork. He then decided since he was running for the Democratic nomination that he couldn’t do it and set about not only opposing Bork but trying to ruin his reputation.
Please read this article http://www.politicsdaily.com/2009/05/26/obamas-justice/
13 ottovbvs // May 27, 2009 at 4:02 pm
sinz54
6:21 AM
“Now if you’re going to oppose Roberts,”
……Er where did I mention Roberts in this thread? As far as I’m concerned Roberts is conservative but mainstream just as Sotomayor is liberal but mainstream.
14 ottovbvs // May 27, 2009 at 4:05 pm
barker13
7:47 AM
“Good luck debating Otto on this, Sinz; I glanced at his post earlier and upon noting not one actual example of Estrada’s supposed “non mainstream” legal history simply took it for what it was – partisan smears”
…….He had an appalling record which is why he never got beyond first base while Roberts and Alito did. I expect these subtleties to escape you.
15 ottovbvs // May 27, 2009 at 4:13 pm
If you want to assess how mainstream the conservative justices are on the court imagine if Roe was up for repeal how they would vote. It’s not, nor is it going to be, but it’s a useful test of where the conservatives stand. Kennedy would definitely vote to sustain it as would Roberts in my opinion because there is now a mountain of case law to provide precedent. Don’t know about Alito but not a certainty for overthrowing it by any means. Scalia and Thomas definites to repeal. Scalia despite his endless preaching about originalism is actually the most activist judge on the court in the extent to which he is willing to overturn legislation and ignore precedent.
16 ireign // May 27, 2009 at 9:15 pm
Ottobs-By your own admission, you have a mba and not a jd (assuming you are telling the truth). Even if you were the pre-eminent legal scholar in the country, you would have no idea how Kennedy or Roberts would vote. No one knows for sure. Moreover, Roe v. Wade is one of many issues before the court and hardly a gage of how “mainstream” a judge is. Many on the left of the political spectrum who are staunchly pro-choice believe Roe v. Wade was wrongly decided.
It is interesting that you claim that Estrada has a “appalling” record yet you provide no evidence to support your assertion nor do you have any US legal background to make that assertion.
17 sinz54 // May 28, 2009 at 7:24 am
ireign & ottovbvs: I think you’re both right.
Roe v. Wade is now 39 years old, with a host of subsequent rulings on the same topic. That’s long enough for even a conservative to consider Roe v. Wade, however bad a ruling it was originally, as settled law. Just as no one is seriously advocating overturning Griswold v. Connecticut–a MUCH worse ruling than Roe v. Wade–simply because Americans’ right to privacy is now settled law.
But in this day and age, when we’re fighting a War on Terror and when Obama’s liberals seem intent on growing the public sector at the expense of the private sector, Sotomayor’s views on the rights of Gitmo detainees and on the rights versus responsibilities of the private sector are FAR more important.
18 Obama is pure as the driven snow.... - Politics and Other Controversies - Page 2 - City-Data Forum // Aug 9, 2009 at 5:23 am
[...] they are fools. It is the Democrats that are and always have been the racist. Read about it. When Is A Hispanic Not A Hispanic? In 2001, President George W. Bush nominated Estrada to the Court of Appeals for the D.C. Circuit. [...]
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