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College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 1999 Section 9: The ourC t and the 2000 Election Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 9: The ourC t and the 2000 Election" (1999). Supreme Court Preview. 99. https://scholarship.law.wm.edu/preview/99 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 Chicago 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 Texas 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 abortion. 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 Houston 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 en banc. 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 New York City 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 Al Gore 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.

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