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1999 Section 9: The ourC t and the 2000 Election Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 1999 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview SHORT LIST FOR THE HIGH COURT Hispanic Activists Offer Judicial Candidates for Nonination

ABA Journal

July, 1999

David G. Savage

For a decade, both Republican and nonetheless a frequent dissenter to the Democratic presidents have considered court's conservative rulings. The other is Hispanic candidates for vacancies on the Jose A. Cabranes of the 2nd Circuit in Supreme Court. So far, however, the New Haven, Conn., a scholarly moderate. results have been frustrating for Hispanic Administration officials, who do not activists. Although one in nine Americans want to be quoted, say the high-pressure is of Latino heritage, no Hispanic has lobbying from Hispanic activists has had ever been nominated to the highest court. an impact. "It is time, really past time, for a During Clinton's first term, the field Latino on the Supreme Court," says of potential Hispanic nominees lacked a lawyer Martin R. Castro, who "true star," says one official. But those chaired a Hispanic National Bar lobbying for a Hispanic nominee have Association committee that has lobbied been "persistent, very persistent," says for such a nomination. another, and their message has been As the Supreme Court wraps up its heard. term in July, the activists are poised to When President Bush had vacancies begin their campaign anew, if need be. to fill in 1990 and 1991, several Hispanic The approach of the summer recess judges made the short list, including often sets off speculation about possible Cabranes. But they also were viewed as retirements and likely nominees for a relatively young and not quite ready for successor. elevation to the Supreme Court. For a president, nomination of the Antonia Hernandez, executive first Hispanic justice would set a marker director of the Mexican American Legal for history, and offer a political bonus as Defense and Educational Fund in Los well. In the nation's four largest states - Angeles, discounts the talk of Hispanic California, Florida, New York and candidates appearing on a short list in - Hispanics make up a powerful voting either administration. "I don't believe a bloc that can swing elections. Latino has yet been under serious Two Names Surface consideration" for a seat on the Supreme Court, she says. Former White House were to consider If President Clinton counsel C. Boyden Gray says Bush this year, a Hispanic for the High Court "would have been delighted to make such be pushing two U.S his advisers would an appointment, but it's a complicated Court of Appeals judges. process and a lot of subtle factors come One is Fortunato "Pete" Benavides of into play." the 5th Circuit in Austin, Texas, who has a reputation as an evenhanded judge who is 487 One factor was . A Chance to Make History Conservatives wanted a judge who A Hispanic appointment would opposed Roe v. Wade. At the same time, be the fourth to add diversity to the the Democrats who controlled the Senate Court. President Wilson appointed threatened to block an avowed opponent Louis D. Brandeis, the first Jewish of abortion. In nominating David H. member of the Court, in 1916. More Souter and Clarence Thomas, Bush found than a half-century later, the Court candidates who had avoided public had its first black justice when pronouncements on the subject. President Johnson selected Thurgood Afterward Bush's chief of staff, John Marshall in 1967. And in 1981, Sununu, met with Hispanic lawyers and President Reagan ended the exclusive said he doubted the Hispanic community reign of the brethren when he chose was in agreement on who should be Sandra Day O'Connor. nominated to the Supreme Court. Who will be the first Hispanic on "We took that as a challenge," says the Court? One contender favored by Carlos G. Ortiz, a New Jersey corporate Clinton advisers, Benavides, 52, has lawyer and a leader of the Hispanic won high marks as a solid judge National Bar Association. "with no axes to grind, no proclivity for partisanship," according to one Determined to be prepared the next bar report. time, the association set up a committee in 1992 to screen potential nominees and to He graduated from the University compile a candidate list. "We wanted to of Law School in 1972 and identify and evaluate the best candidates. spent five years in private practice And we wanted to prove we could unite before he began his upward ascent on behind these nominees. We didn't want the state bench. In 1991, Gov. Ann anyone to have that as an excuse ever Richards made him the first Hispanic again," Ortiz says. on the state's Court of Criminal Appeals, and Clinton named him to The list, presented to Clinton in 1993, the 5th Circuit in 1994. includes Benavides and Cabranes; New Mexico Supreme Court Justice Joseph There, Benavides has been a frequent Baca; Gilbert Casellas, the former dissenter in high-profile conservative chairman of the Equal Employment rulings. When a three-judge panel called a Opportunity Commission; Los Angeles halt to affirmative action at the University attorney Vilma Martinez; and former of Texas in Hopwood v. Texas, 78 F.3d 932 California Supreme Court Justice Cruz (1996), Benavides voted to rehear . Reynoso. He also cast a dissenting vote when Last summer, activists' hopes for a the 5th Circuit held that interest accrued Hispanic nominee were briefly fanned from law firm trust accounts was the when rumors spread that 78-year-old property of the clients. The decision "poses an un- warranted Justice John Paul Stevens was about to threat to a retire. The Hispanic lawyers sent their primary source of funding for public candidate list again. But the interest legal organizations," he wrote in rumormongers had not consulted with Washington Legal Foundation v. Texas Equal Stevens, who announced he had no plans Access to Justice Foundation, 106 F.3d 640 to step down. (1997).

488 Another contender, Cabranes, has the and were wary of putting her in line for a scholarly credentials for a nomination to possible High Court nomination. the Court, as well as the centrist views that Time Running Out would pave the way for his confirmation in a Republican-controlled Senate. For President Clinton, the window of opportunity for filling a third Supreme Born in Puerto Rico in 1940, Court seat is likely to close soon. Six Cabranes moved to with months from now an election his family as a boy. He earned degrees year begins, a time when no justice wants to step aside. from Columbia University, Yale Law And by that time, a Republican Senate is School and Cambridge University, where unlikely to confirm a nomination made by he earned a master's in international law. an outgoing Democratic president. In 1972, he was a founder of the If Vice President succeeds Puerto Rican Legal Defense Fund. He Clinton, a recharged Democratic was general counsel to Yale University administration would likely favor many of when President Carter named him to the the same Hispanic judges under federal bench in 1979. consideration now, such as Benavides and But his moderate record on the bench Sotomayor. has not won him the enthusiastic backing If the Bush era resumes with the of liberals. election of Texas Gov. George W. Bush, "I'm rooting for Sonia Botomayor," "You could expect he would look first at says Nan Aron, executive director of the some of the Hispanic judges from Texas," Alliance for Justice, a coalition of civil says Elliot Mincberg, legal director for rights and consumer groups that tracks People for the American Way. judicial nominations. Either way, Hispanic activists remain Sotomayor, 45, grew up in a housing optimistic. "We are extremely confident project in the South Bronx and went on we will get the nod next time," says Ortiz. to excel at Yale Law School. She was "If Clinton doesn't get another chance, his named to the federal bench in 1992 and successor - Republican or Democrat - won a contentious Senate confirmation will seize this opportunity." to the 2nd Circuit in November. Some Republicans said she was a liberal activist Copyright C 1999

489 THE VACANCY GUESSING GAME Filling High Court Openings is Creeping in to Presidential Election Politics

Texas Lawyer

Monday, June 28,1999

Tony Mauro

If it's summer, the U.S. Supreme As the rumor goes, Justice Scalia is so Court vacancy machine must be gearing upset with the court's drift to the left that up again. The television networks are he's ready to quit. The rumor is scouting around for file footage of Justice preposterous, but its subtext is clear: Elect John Paul Stevens, in case he chooses to a conservative who will appoint simpatico retire. Never mind that Stevens, at 79, justices to keep Saint Antonin company, looks to be at the top of his game - or else the court's last angry purist will twinkly-eyed, bow-tied and churning out leave. feisty opinions especially in the last Meanwhile, the prospect that a month. Speculation about other Republican might beat Vice President Al departures bounces down the seniority Gore is accelerating talk that Rehnquist, tree, to Chief Justice William H. who some say postponed his retirement Rehnquist, Justices Sandra Day O'Connor because President was re- and Antonin Scalia, and even junior elected in 1996, will leave in 2001. Justice Stephen Breyer, who's looking wan and weary of late. And that, in turn, has spawned a range of "elevate from within" scenarios that Next year's presidential election adds would give the next president a "twofer" an extra fillip to the vacancy guessing a chance to appoint a chief justice and an game. As the theory goes, anyone thinking associate justice at the same time, as of leaving soon should go now or face President did in 1986 to stay put for two years. After this having when he elevated Rehnquist and named summer, it will be the spring of 2001 Scalia to replace Rehnquist. before a president will be in a decent position to name a replacement. Two potential chiefs come to mind among Republicans if a Republican is The question of vacancies is already elected and Rehnquist leaves: Sandra Day creeping into presidential election politics. O'Connor, who would become the first At his maiden press conference in New woman chief justice, or , Hampshire, George W. Bush is asked who wouldn't be a first, but has other about Supreme Court nominations and kinds of appeal. Souter was one of Daddy says, "There will be no litmus tests" on Bush's proudest appointments, so George abortion or anything else. W. could honor his father by elevating That brings a charge of waffling and Souter to chief. Alternatively, if John wimpiness from Gary Bauer and Pat McCain is elected, then Souter's original Buchanan and adds juice to a rumor sponsor, Warren Rudman, one of circulating in conservative circles (which McCain's three campaign co-chairmen, George magazine printed this month). might try to get his New Hampshire friend Souter a promotion. Another 490 bonus: the unassuming Souter is popular speaks Spanish and has broad appeal inside the building, a favorite of many among Hispanics in Texas. current justices. "He has tried to be as inclusive as If Gore is elected and Rehnquist steps possible with the Hispanic community in down anyway, some suggest Souter could Texas, and I would think that would be on Gore's list for promotion to chief continue in his presidency as well," says as well. Souter would be an easy Steptoe & Johnson's Richard Willard, confirmation prospect with a still- who is helping the Bush campaign, but Republican Senate, and it would show says he is not speaking for the campaign. Gore's bipartisanship. While in the Reagan Justice Department, Willard helped in the effort to get his Gore had some involvement in former boss, Clinton's appointments to the high court - Anthony Kennedy, confirmed for the Supreme Court. he led a memorable press briefing on Stephen Breyer's appointment in 1994 For his part, Gore will need the so either Ruth Bader Ginsburg or Breyer Hispanic vote to get elected, and almost could also get the nod as chief in a Gore certainly will give early consideration to first term. Hispanic nominees if he becomes president. Gore's judge-picker would probably be his current chief of staff, , a On the HNBA list, which Ortiz former law clerk. While in stresses is nonpartisan, are: federal appeals the White House counsel's office in 1993, judges Jose Cabranes (2nd Circuit) and Klain was the one who got the call and (5th Circuit), as well carried White's retirement letter to as New Mexico Supreme Court Justice President Clinton. Joseph Baca, former Equal Employment Opportunity Commission Chairman So there are at least four potential Gilbert Casellas, litigator and former chief justices sitting on the court - Souter, president of the Mexican American Legal O'Connor, Ginsburg and Breyer. Defense and Education Fund Vilma But what about associate justices? Martinez, and former California Supreme Well, like the Maytag repairman, Carlos Court Justice Cruz Reynoso. Ortiz of the Hispanic National Bar Cabranes, like Souter, turns up in Association waits by the phone. He is the speculation no matter which party takes keeper of the association's list of potential the White House next year. Benavides is Hispanic appointees to the Supreme from Texas, but one recently notorious Court. ruling may make him unattractive to Much to the association's regret, it is a Bush; he was on the 5th Circuit panel that list that was passed over by Clinton in his struck down federally funded school two appointments, and the association's equipment loans to parochial schools in members don't want to be ignored again. Helms v. Picard, which the Supreme "We are long past the point where we Court just agreed to hear. would just like to be considered," says Other than Hispanics, Republican Ortiz. "We've come to expect that the wish lists tend to include appeals judges next vacancy will be filled by a Latino. It Michael Luttig (4th Circuit), Diarmuid would be mind-boggling if it wasn't." O'Scannlain (9th Circuit) and (5th Circuit), while the star on any And that expectation stands no matter Democratic list is David Tatel (D.C. who is elected president. George W. Bush 491 Circuit), who would be the court's first Blackmun after they retired. Leaving the blind justice going in. court took a certain spark from their lives and health problems began to crowd Why They Quit in. All of this end-of-term and pre- Remarkably, Atkinson notes that no justice has died in office since Robert election speculation is based, of course, on a vacancy coming along, and there Jackson in 1954. He died of a second simply isn't any real evidence that one is heart attack a few months after he left his coning soon. sickbed to join in Brown v. Board of Education. A fascinating book on the subject of Supreme Court vacancies has just been Atkinson points out that the published, called "Leaving the Bench" institution copes very well with aging who may not be as active as they (University Press of Kansas, 1999) by justices David Atkinson, a University of Missouri- once were. High-powered law clerks can Kansas City political science and law carry the work of the office indefinitely, professor. and form "an effective cordon" around their justice in the later years. He recounts A sort of counterpart to Henry how Marshall and even Brennan became Abraham's "Justices and Presidents," less involved in their opinion writing in which charts why justices are appointed, their final years on the bench. "Their "Leaving the Bench" looks at why they chambers kept clicking along," says quit. Atkinson has tracked the final years Atkinson. of all the justices - providing new insights On the current court, while all the into Charles Whittaker's mental illness justices seem to be active and in good and Lewis Powell Jr.'s nearly fatal surgery health, there are said to be several who in 1983, among others. don't burn the midnight oil as they used The conclusion he reaches, by and to. Yet their offices churn out the large, is that justices rarely time their requisite number of opinions, dissents departures - or prolong their tenure - to and concurrences - and then some. Most bestow the job of replacing them on a other aspects of their jobs, except for the president of a preferred party. If pay, are hard to beat anywhere else in the ideological reasons come into the legal profession. equation at all, he says, it is more often to The perks, the adoration from the bar hold a majority of one stripe or other - a and academe, are unparalleled. So, in William Douglas or Thurgood Marshall trying to figure out why no justice has left determination to hang on because they in the last five years, and no one might feel their side needs their votes. this summer or next, the simple answer The vast majority of the time, might be a simple question: Why should however, "they leave for health reasons. they? They go when they have to go," says Tony Mauro covers the U.S. Supreme Atkinson. Lately, more justices have been Court and legal issues for USA Today and able to stay on for a very long time, and the Gannett News Service. His e-mail they only begin to go downhill once they address is [email protected]. retire. Someone like Justice Stevens probably stays on as long as he does partly because he saw what happened to Copyright C 1999 American Lawyer the likes of Brennan, Marshall and Newspapers Group, Inc.

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