Members of the U.S. Supreme Court sit for a group portrait at the Supreme Court in Washington in this file photo from March 3, 2006. Seated in the front row (left to right) are: Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice of the United States John G. Roberts, Associate Justice Antonin Scalia and Associate Justice David Souter. Standing, in the top row, are: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg, and Associate Justice Samuel Alito Jr. There has never been a Hispanic on the court.
As someone who knows what it’s like to make history, Barack Obama should understand intuitively that – with the retirement of Justice David Souter – it’s time for the president to whip up another batch, putting a Latino or Latina on the Supreme Court.
With all respect to Justice Benjamin Cardozo, a New Yorker of Portuguese heritage who was nominated to the high court by Herbert Hoover in 1932, Latinos are eager for a more recent example of someone who identifies with being Latino.
America’s largest minority has a reputation for patience and passivity, but now isn’t the time for either.
Hispanics are due a Supreme Court justice, but they can’t count on either liberals or conservatives in Congress to make that a priority. So they need to raise their voices and demand that a president who received two-thirds of their votes recognize their place in society and correct a terrible oversight.
The good news is that Obama doesn’t have to sacrifice quality in the process. These days, there are plenty of highly accomplished Latinos in the sorts of positions that typically lead to a Supreme Court nomination.
Of course, there are those who still get squeamish over the idea that “identity politics” or “diversity” should factor into a decision this important.
Much of that resistance is probably leftover resentment of the affirmative action policies of the last 40 years. There’s also an assumption that the most qualified to fill such prestigious positions must be white males; anyone else is a diversity candidate.
That’s ridiculous. For every vacancy on the Supreme Court, there are usually many good candidates who could do the job.
And sometimes, individuals are helped along because they have a great personal story or a unique perspective, or come from a certain part of the country, or they’re trailblazers for a group of people.
Jewish Americans are rightfully proud of Louis Brandeis, Abe Fortas, Felix Frankfurter, Arthur Goldberg, Ruth Bader Ginsburg, Stephen Breyer and Cardozo.
African-Americans have had Thurgood Marshall and – over the objections of many of them – Clarence Thomas.
Gee, it looks like Hispanics missed a turn. Past presidents – even supposed liberals who talk a good game about diversity – have had a blind spot when it comes to putting a Latino on the Supreme Court.
Democrat Bill Clinton was elected, then re-elected, averaging about 70 percent of the Latino vote, and yet he stiffed that constituency by using both of his Supreme Court picks to nominate Ginsburg and Breyer. While disappointed, Latinos kept quiet about being slighted.
Now, Obama has plenty of choices of qualified Hispanic candidates to help him break that barrier.
While Supreme Court nominees don’t have to come from the lower federal courts, they’re considered a good training ground. As of 2008, Hispanics accounted for 71 of the 1,294 sitting federal judges.
Standouts include Christine Arguello, a Harvard Law grad and U.S. district judge (District of Colorado); Ruben Castillo, a U.S. district judge (Northern District of Illinois); and Sonia Sotomayor, a Yale Law grad who is on the U.S. 2nd Circuit Court of Appeals in New York.
Republicans warn that Obama should choose someone in the judicial “mainstream.” That’s code for someone who won’t frighten off conservatives.
Obama should ignore that advice, just as President Bush ignored demands by Democrats that he pick Supreme Court nominees more to their liking. If Republicans want to be in the driver’s seat, they should do the obvious thing and concentrate on winning elections.
The bigger concern is Obama himself might be ambivalent about nominating a Latino and – according to some former law students – often prefers to take a pragmatic approach.
That could mean biding his time, and – assuming he stands to get at least one, and possibly two, more selections during his presidency – tabling the Hispanic candidate until later.
If that happens, it won’t be easy for many Hispanics to swallow. Who can blame them? They’ve waited long enough. They’ll be disappointed.
But will they fall quietly back in line and return to their familiar habits of being passive and patient?
Let’s hope not.
Ruben Navarrette Jr. is a columnist and editorial board member of The San Diego Union-Tribune. E-mail: ruben.navarrette@uniontrib.com