"For the first time in a long time," said one "Hispanic" man in
the street interviewed on cable television, "I feel really proud." Others in
the "Hispanic community" rejoiced as Sonia Sotomayor became the first
Hispanic justice on the Supreme Court.
Sen. Dianne Feinstein, D-Calif., in her statement at the
beginning of Sotomayor's confirmation hearings, said: "Your nomination I
view with a great sense of personal pride. You are indeed a very special
woman. You have overcome adversity and disadvantages
(emphasis added)." Senate Majority Whip Dick Durbin, D-Ill., said, "Judge
Sotomayor, you have overcome many obstacles (emphasis
added) in your life that have given you an understanding of the daily
realities and struggles faced by everyday people."
Let's talk about the obstacles, adversity and disadvantages of
another Hispanic nominee, one whom many thought pre-Sotomayor worthy
of future consideration as the first Hispanic Supreme Court justice.
Born in Honduras the child of a broken home this nominee
immigrated to the United States at 17 years of age, arriving with a limited
command of the English language. The nominee's mother spoke no English. But
four years later, the nominee graduated magna cum laude and Phi Beta Kappa
with a bachelor's degree from Columbia University. The nominee went on to
Harvard Law School, served as editor of the Harvard Law Review and received
a Juris Doctor degree magna cum laude.
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The nominee served as a clerk at the U.S. Court of Appeals and
the Supreme Court, practiced law in New York, and then served as an
assistant U.S. attorney, later joining the Justice Department as an
assistant to the solicitor general for the Clinton administration.
Overcoming personal adversity? The nominee's spouse died from an
accidental overdose of alcohol and sleeping pills, after the couple had
suffered through a miscarriage.
The American Bar Association whose evaluation was once hailed
as "the gold standard by which judicial candidates are judged," by Senate
Judiciary Committee member (and current chairman) Patrick Leahy, D-Vt.
unanimously gave the nominee its top "well-qualified" rating. Yet the
nominee despite an admirable record of overcoming personal and
professional "obstacles" and "adversity" met with a hailstorm of
opposition, including a filibuster to prevent an up-or-down vote on the
The Senate only had 55 votes to end the filibuster, but it
requires 60 votes to end one. If the Democrats had allowed a full vote, the
nominee would have had enough Senate votes to reach confirmation. After all,
Clarence Thomas only got 52 votes for his confirmation. Finally, because of
fierce opposition by Democratic senators including the lengthy,
seven-month filibuster staged as a procedure-delaying tactic to deny a full
Senate confirmation vote the nominee withdrew in 2003. "This should serve
as a wake-up call to the White House that it cannot simply expect the Senate
to rubber-stamp judicial nominees," said Sen. Edward Kennedy, D-Mass.
The nominee was Miguel Estrada.
Then-President George W. Bush, in 2001, nominated him to the
prestigious U.S. Court of Appeals for the District of Columbia Circuit. Had
Estrada secured the nomination and had Republicans retained the White
House in 2008 many would have placed Estrada on the list of possible
future Supreme Court justices. He, not Sotomayor, could have become that
court's first Hispanic justice. Instead, the "minority-sensitive" Democrats
treated him like a child molester. One staff strategy memo sent to Sen.
Durbin in 2001 when the Democrats ran the Senate Judiciary Committee
called Estrada "especially dangerous, because he has a minimal paper trail,
he is Latino (emphasis added), and the White House
seems to be grooming him for a Supreme Court appointment."
Sen. Chuck Schumer, D-N.Y., days before chairing a Senate
Judiciary Committee's confirmation hearing on Miguel Estrada, told the
liberal magazine The Nation: "(Estrada) is like a Stealth missile with a
nose cone coming out of the right wing's deepest silo (emphasis added)." When, however, President Barack Obama nominated
Sonia Sotomayor, Schumer regained his "compassion" for minorities:
"(Republicans) oppose her at their peril."
Opposition to someone's nomination on ideological grounds or
"judicial philosophy" is fair game irrespective of the nominee's race,
ethnicity or gender. But Democrats consider sob stories of Democratic
nominees relevant to show "obstacles" overcome and "adversity" conquered.
But as to the sympathetic "back story" of a Republican nominee who cares?
It means little or nothing even in the case of a racial or ethnic
"first" if nominated by the wrong party.
Democrats market themselves as the party of compassion and
sensitivity to racial and ethnic minorities. But they do so only
selectively. A Republican nominee like Miguel Estrada becomes a "sellout" or
a "Tio Taco." Similarly, Justice Clarence Thomas, following his nomination
by then-President George Herbert Walker Bush, found himself caricatured on
the cover of a national black magazine as a mammy-style, handkerchief-capped
"Hispanic pride" and "overcoming obstacles" only count when the
"good guys" say so.