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What The Controversial Nomination Of Miguel Estrada To A Federal Appeals Court Seat Is Really About


Thursday, Oct. 17, 2002

Recently, President George W. Bush nominated conservative, Honduran-born attorney Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. The nomination has provoked controversy.

A graduate of Harvard Law School and a former law clerk to Associate Justice Anthony Kennedy, Estrada would be the first Latino on the D.C. Circuit, often a stepping-stone to the U.S. Supreme Court. After a stint in the prestigious Solicitor General's office, Estrada currently is with the prominent law firm of Gibson, Dunn & Crutcher, which represented President Bush in the contentious 2000 litigation over the voting in Florida. Although he meets the educational and professional qualifications for the job, Estrada's conservative politics, temperament, and connection to the Latino community have become issues for many.

Indeed, Latino advocacy groups are deeply divided about Estrada's nomination. The Hispanic National Bar Association endorses the nomination. But the Puerto Rican Legal Defense and Education Fund strongly opposes Estrada's confirmation.

That person might or might not be Estrada, but whoever it might be, it would literally make history.

The Possible Impact of the Nomination of the First Latino Supreme Court Justice

The possible appointment of a Latino Justice to the Supreme Court has been on the table for well over a decade. The much-publicized Census 2000 revealed that Hispanics currently comprise more than 12.5 percent of the total U.S. population, or almost 35 million people, roughly approximating the number of African Americans in the country.

In light of the demographics, we should expect - some might say demand - to see a Latino on the Supreme Court in the Twenty-first Century. If and when it does happen, what will be the impact of the historic appointment?

By way of comparison, consider President Lyndon Johnson's landmark nomination of Thurgood Marshall to the Supreme Court in 1967. Justice Marshall, of course, was the first African American to serve on the high Court.

Justice Thurgood Marshall as a Beacon of Hope

Marshall's appointment undisputedly meant a great deal to African Americans, to the Court as an institution, and to the nation. In announcing Marshall's nomination, President Johnson remarked that the appointment was "the right thing to do, the right time to do it, the right man and the right place."

Marshall, of course, was a revered African American civil rights lawyer and the architect of Brown v. Board of Education, the major civil rights decision of the twentieth century. The meaning of his appointment thus could not have been clearer - and its meaning for African Americans was especially important.

The appointment provided a touchstone for African Americans, as the nation's racial sensibilities underwent a radical, at times violent, transformation during the civil rights movement of the 1960s. And the mere presence of an African American on the nation's highest court - almost unthinkable just a few years before - forever changed the United States.

During Justice Marshall's tenure on the Supreme Court, it moved in a more conservative direction, away from his intellectual leanings. As a result, Justice Marshall wrote increasing numbers of dissents. In the role of "the Great Dissenter," or "our Supreme conscience," Justice Marshall again gave voice to the sentiments of many African Americans.

Thurgood Marshall also had an impact on his fellow Justices and the Supreme Court as an institution. His rich career as a civil rights lawyer allowed him to spin tales that gave real-life meaning to many of the cases that came before the Court. Justices Kennedy, O'Connor, and White - all moderate or conservative Justices - each wrote about how much they gained from Justice Marshall's experiences.

How a Latino Justice's Perspective Might Change the Supreme Court

As Thurgood Marshall's appointment was for African Americans, the addition of the first Latina/o to the Supreme Court would be a historic "first." Importantly, a Latina/o would likely bring new and different perspectives to the Court and its decision-making process. Consider one decision by way of example.

In the 1975 case of United States v. Brignoni-Ponce, the Supreme Court stated that Border Patrol officers on roving patrols could consider the race of the occupant of an automobile in making an immigration stop. In the Court's words, "[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in deciding to stop a vehicle. A form of racial profiling in immigration enforcement thus was declared constitutional.

A Latino Justice might well approach the reliance on race and physical appearance in immigration stops in a wholly different way. For one thing, a Latino would more likely understand why "Mexican appearance" is a deeply flawed criterion on which to base an immigration stop. He or she would understand, for instance, that there is no single "Mexican appearance." Rather, Latinos come in all shapes, sizes, and appearances, not just the stereotypical ones.

A Latino Justice would also likely understand another fallacy in the Court's reasoning in Brignoni-Ponce: if merely having apparent Mexican ancestry made one likely to be an "illegal alien," hundreds of thousands, if not millions, of Latino citizens and lawful immigrants could be subject to vehicle stops. In fact, Mexican ancestry hardly makes one especially likely to be an "alien" - as a Latino Justice could not help but know.

Many non-Latino citizens nevertheless assume that Latinos - native born citizens in this country or not - are "foreigners," and treat them as outsiders to the national community. A Latino Justice would be in a position to correct these beliefs, and could as a result have a strong, positive effect on the Court's immigration and immigration enforcement decisions.

Similarly, a Latino also might look differently than others at various civil rights issues, including those implicated by English-only rules, bilingual education, and criminal law enforcement. To this point, no Supreme Court Justice has emphasized, as Justice Marshall consistently did for African Americans, the long history of discrimination Latinos have faced.

A Latino Clarence Thomas?

Some observers might suggest that this analysis is politically and otherwise naive and that a Latino appointment by President Bush will more likely resemble Justice Clarence Thomas than Justice Thurgood Marshall. It is not a coincidence, they might point out, that Bush's first Latino federal appeals court nominee, Estrada, is quite conservative; a Supreme Court nominee would likely be very conservative, too.

But even so, the appointment of a Latino to the Supreme Court would signal a movement toward full membership for Latinos in American social life, just as Thurgood Marshall's appointment did for African Americans. For one thing, the naming of a Latino Justice in and of itself would symbolize the growing inclusion of Latinos in the "respectable" mainstream - rather than simply in the entertainment industry where one cannot miss Jennifer Lopez and Ricky Martin. Such a first would mark the true arrival of Latinos.

The debate about Miguel Estrada's confirmation gives us an idea of what to expect in the future when a President - perhaps President Bush - nominates the first Latino to the U.S. Supreme Court. Controversy will surround the nomination and the stakes will be high, especially for the Latino community. Consequently, this is the time to pay attention - for the Estrada confirmation process may be a harbinger of things to come.

Kevin R. Johnson is Associate Dean for Academic Affairs and Professor of Law and Chicana/o Studies at the University of California, Davis. Johnson is the author of How Did You Get To Be Mexican? A White/Brown Man's Search for Identity (Temple University Press, 1999), and "On the Appointment of a Latina/o to the Supreme Court," an article that appeared in Volume 5 of this year's Harvard Latino Law Review.

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