BY MIKE WISER
For a panel of experts who gathered on Saturday to discuss the possible appointment of a Latino to the U.S. Supreme Court, the question was not whether a Latino would be appointed, but whether it would make any difference. While the three panelists seemed to agree that a Latino would probably be nominated in the near future, they had dramatically different views on what it would mean and how the Latino community should respond.
At the discussion, sponsored by La Alianza and the Harvard Latino Law Review, former Secretary of the Army Louis Caldera ’87 warned the audience not to expect too much from such an appointment. He added that the Latino community should mostly stay out of the appointment process. Prof. Deborah Ramirez ’81, who teaches at the Northeastern University School of Law, countered Caldera by claiming that activist groups had a vital role in ensuring that Pres. George W. Bush appointed someone who was not only Latino but who would represent Latino concerns. Kevin Johnson ’83, an Associate Dean at the UC Davis School of Law, instead emphasized the difference that a Latino could make if he or she were appointed to the court.
The Death of Identity Politics
For Ramirez, who spoke first during the panel, the symbolism of appointing a Latino Supreme Court justice was not as important as appointing a justice who would advocate Latino stances on “civil rights, housing, education, voting and jobs.” In her discussion, which she titled, “The Death of Identity Politics,” she said that the failed nomination of Linda Chavez to the post of Labor Secretary showed that it would not be enough for Bush to simply appoint a Latino who would be antithetical to Latino concerns.
“With Chavez’s potential appointment,” Ramirez told the audience, “I feared that her candidacy would violate my first principle for evaluating a candidate for public office, which is, like that of doctors, do no harm.” The danger, she said, was not just in the fact that Chavez held views that others in the Bush administration might hold. The danger for Ramirez was that Chavez’s ethnicity would give her the feeling that she had the legitimacy to attack programs like affirmative action and bilingual education. The other problem, for Ramirez, was that Chavez lacked the support of the Latino community and any of the major Latino organizations.
Latino groups cannot just evaluate candidates based on their ethnic identity, Ramirez said. Instead, they should find common ground to craft an ideological agenda against which they can compare potential candidates. While they may not be able to reach an agreement on bilingual education or affirmative action, it may be possible to find common ground on issues such as voting rights, the use of language in the courtroom, educational disparities and racial profiling. “The new diversity in the next millennium has got to be based on ideology and culture, rather than solely on racial and ethnic identity,” she said.
Ramirez argued that a potential Supreme Court justice should combine an ideology that embraces common Latino issues and experiences that would help them understand the issues of everyday Latinos. “I would like to know from a Supreme Court candidate the following things – not just whether they are Latino but regardless of whether [they are] White, Black, Asian, Latino or of mixed racial identity – Have they worked or resided in Latino disadvantaged neighborhoods? Do they speak Spanish? Have they worked [for] or been associated with Latino organizations? And most importantly, are they going to address the issues that this community has? And are they willing to move this community forward?” Ramirez cited Bush’s appointment of Ralph Boyd ’84 as the type of appointment that the Latino community could support even if the appointee was not Latino himself.
The key for Latino groups right now, Ramirez said, is to become active and to survey the potential candidates. She said that groups should start investigating potential nominees like former Texas Supreme Court Justice Albert Gonzalez. This is the time, she said, to educate him about the Latino “agenda.”
For Caldera, the former Secretary of the Army, Ramirez was hoping for too much. “The higher agenda that was described [by Ramirez] might have been something that you could have done had Al Gore been president, but I don’t think it is really something that is going to make an impact on the selection process with George Bush as president,” he said.
The appointment of a Latino would be historic, Caldera told the audience, but in the end it would not be too important in the overall advancement of Latinos in America. It is a simple reflection of demographic trends. “It is another data point that all of us will use when we talk to our kids and say – it is another validation that there are no doors that are closed to Hispanic America,” he said.
Caldera warned that the most that the Hispanic community could hope for was someone who would remember where they came from and what the struggle is like for recent immigrants. Caldera was not convinced that the first nomination would even be a Hispanic. Beyond that he predicted only that “The most likely thing is that it is going to be a conservative. No one should be surprised by that.”
The conservative constituency, Caldera said, would be the one that Bush is trying to satisfy in his appointment of a Supreme Court Justice. “They are going to want very much to see a Justice who is a conservative. And they are not going to want to see what happened under his father, who they never really believed was a true conservative. They’re not going to want a [Justice] Souter [’66] – someone who is undefined being allowed to go on the court and who then evolves judicially while he is on the court,” he said.
What does this mean for Hispanic groups? “I would go out and look at the handful of Hispanic federal judges who are out there, and I’d look and say, ‘Are any of these guys conservative enough?’ If you really want to see him get it, go support the guy who is the most conservative of the bunch and try to convince all of your conservative friends that he is really conservative,” Caldera said. He also predicted that the first judicial nominee would be very conservative and probably not a Hispanic, but the second appointment would more likely be a moderate to conservative and more likely Hispanic.
Caldera said that the court was not the right place to be concerned about ethnic representation. “I don’t think it serves our country well,” he said. “I think that what you need is someone who is intellectually honest, who is intelligent, has compassion and shares our basic values as Americans about the common good and the importance of Democracy and the Constitution and the Bill of Rights,” he added.
The Marshall Model
Johnson, the associate dean of UC Davis Law School, is also the author of “How Did You Get to be Mexican: A White/Brown Man’s Search for Identity.” Johnson began his comments by saying, “I don’t know about you all, but I’m thoroughly depressed now.” Instead of focusing on difficulties of the politics surrounding Supreme Court appointments, Johnson said it was important to remember how important a nomination to the Supreme Court could be for the Latino community.
Thurgood Marshall, Johnson said, represented everything that an appointment to the Supreme Court could bring to the country. “Marshall’s appointment had an impact on the court’s decision making process. I think everybody would agree that his life experiences, the perspective he brought to the court, what he saw and he did on the court had an impact on other people on the court and on the community,” he said.
“His voice and the voice of many African-Americans was heard on the Court even when he was writing on a dissent,” Johnson said. A Latino, he said, could also add another perspective to the court. “A Latino on the court could bring different experiences and different perspe
ctives to the court and its decision making process,” he said.
Johnson pointed to a sentence in the 1975 case of the United States v. Bringnoni-Ponce where the court upheld the U.S. Border Patrol’s practice of using race as a factor in deciding who to stop. “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor,” the Court wrote.
Johnson said that these are the types of cases where having a Latino on the court could make a difference. A Latino, he said, would probably ask what “Mexican appearance” is. “These stops and interrogations about citizenship may appear to be minimal to people who are unlikely to be stopped and interrogated – like most of the people on the current Supreme Court.” But Johnson said that a Latino would be more likely to understand why the INS shouldn’t consider race. A Latino Justice would likely have been stopped and felt the effects of racial profiling first hand.
The panel, which was entitled “A Latino on the Court: Will It Make a Difference?” was moderated by Maria Martin, who is the host of National Public Radio’s Latino USA. The discussion was recorded and portions of it are scheduled to air nationwide on an upcoming program.