Dahlia Dumps On the Pro- And Anti-Estrada Arguments

You should read Dahlia Lithwick’s dissection of both sides of the Estrada debate in Slate, especially because I’m going to comment on only a few strands of it. Many of her points are quite incisive, but a few strike me as off the mark. But whether on or off, she’s always a pleasure to read.

First, she takes the Bush administration to task for not coming right out and admitting that in nominating Estrada they were pandering to the Hispanic vote, “no different from George Bush Sr.’s determination to replace Thurgood Marshall with an African-American.” But how can she be so sure? Does she mean that, absent his ethnicity, no reasonable president could possibly have thought to nominate Estrada to a circuit court of appeals? That’s absurd.

Lithwick claims that the Estrada nomination “mirrors [Bush’s] profoundly illogical claim that he supports racial diversity in education but opposes affirmative action,” but she presents no argument as to why this claim is illogical, profoundly or otherwise. I think it’s quite reasonable to believe that diversity is a Good Thing but that “affirmative action” as done today requires discriminating on the basis of race, which is not only a Bad Thing but indeed is so bad that it is almost never justified. I, of course, have no more access to the president’s motives than does Lithwick, but it does not strike me as illogical, or even unlikely, that he thought appointing someone as eminently well-qualified as Miguel Estrada is precisely the way to promote diversity without relying on discrimination to achieve it. Perhaps I will be persuaded by Lithwick’s argument to the contrary if she ever makes one, but she did not make it here.

Then Lithwick says the “claim that Estrada is being blocked because he’s Hispanic” is “grotesque.” Not so, as I’ve already argued here and here. True, the Democrats’ opposition is not based on prejudice, at least not against Hispanics. They don’t want Republicans (against whom they truly are prejudiced) to reap the political rewards of appointing a talented Hispanic to the D.C. Circuit. It’s no accident, as we conspiracy theorists are fond of saying, that the Dems resorted to the first filibuster of an appeals court nominee in American history to block this particular nomination.

But Lithwick’s heaviest fire, and her surest aim, is reserved for the squabbling Hispanic interest groups. Between them, she argues quite persuasively, they have discredited every argument for racial and ethnic preferences. The pro-Estrada Hispanics, she claims, can’t see beyond his brown skin, which they think is so important that what he thinks isn’t important. She says that “half his supporters would support a Honduran Hannibal Lecter as readily as they support him.” According to Lithwick,

this argument has boomeranged badly in the past, not only because the Clarence Thomases have simply not been better for blacks than the David Souters, but because this kind of single-minded race-consciousness can only denigrate the minority in question.

Perhaps on another occasion Lithwick can fill us in on what’s good for blacks.

The anti-Estrada Hispanics, on the other hand, undermine their own usual mantra that race and ethnicity are valid proxies for values and experiences when they argue that Estrada isn’t Hispanic enough to represent Hispanic interests on the bench. (Leave aside whether judges should represent any interests on the bench.) “By making this argument,” Lithwick correctly asserts, “Estrada’s detractors are merely proving that race is indeed not a proxy for diversity….”

“We can only hope,” Lithwick concludes,

that the Supreme Court can bring more nuance and sophistication to their consideration of affirmative action next month than we have brought to the debate over Miguel Estrada.

Indeed. In that regard, I wonder if the nada-on-Estrada crowd thinks he deserved whatever preferences he may have received from Columbia and Harvard Law School. Also, do they think his children will deserve preferences? Perhaps if his nomination is defeated, the young Estradas could point to an ugly episode of discrimination — they weren’t the right (which is to say, left) kind of Hispanics — in their family history.

Say What? (3)

  1. Omnibus Bill February 28, 2003 at 12:17 pm | | Reply

    Regarding Lithwick’s allegations… I’m a fairly successful young Washington attorney, and I used to do a little bit of work on the Hill with judicial nominees.

    1. Estrada isn’t the result of affirmative action racial pandering. I look at Estrada’s qualifications with a bit of awe. The top tier school, top of the class academics, the clerkships, and then the Solicitor General’s Office, now a partner at Gibson Dunn (which in addition to being snotty about credentials is a damn fine firm). Though we are close to being the same age, I’m comfortable admitting he’s probably a far superior lawyer than I. He’s exactly the type of mind one wants on the federal bench in the D.C. Circuit, sorting out complex regulatory issues. If he was a moron and was appointed to the bench, then I’d agree that it was race based affirmative action. But this guy would be a good candidate for the bench even if he was, horror of all horrors, so white that he looked albino.

    2. Does race enter into it? As a political question, yes, but probably no more than his Horatio Alger-esque background. Bush knew that by naming a superbly qualified Hispanic attorney, the hispanic lobbying groups would be conflicted, and the Dems would look like bigoted morons for insisting he’s “not Hispanic enough”. More importantly though, they look like real jackasses for opposing a guy who has made it to the top of his profession in a stirring and meritorious fashion.

    3. Yes, he is being blocked in large part because he is Hispanic, because: (a) any retreat by the administration will get spun as “Bush just doesn’t care about Hispanic people; (b) because a telegenic Hispanic D.C. Circuit judge would be hard to keep off the Supreme Court, which in turn would be an effective symbol of outreach by Bush; and (c) because the Dems really do believe Bull Connor’s argument that “race traitors” should be shunned.

    4. Re: Hispanic interest groups — well, other than racial identity politics, which are evil and divisive, I don’t think the Hispanic groups come off too badly here. They are interest groups, voluntary associations, formed to advance the interests of their members. The more liberal groups realize that a conservative judge wont be their friend on pet issues. What they are doing is no more shameful than the AARP lobbying for special privileges for old folks, or the NRA lobbying for gun owner rights — it’s just that because race is involved, their rhetorical tool kit contains a bunch of nasty stuff.

    In short, the Republicans probably noted Estrada’s race, but his role as a reliable litigator in the Florida election litigation, as well as his stellar legal career, made him a strong candidate for the federal bench. The Dems, on the other hand… 10 years ago, they swore race didn’t matter, today they insist that it should determine one’s viewpoint. The Estrada stalemate is the ineluctible result of such destructive attitudes.

  2. John Rosenberg February 28, 2003 at 5:41 pm | | Reply

    Omnibus Bill – Couldn’t say it better myself. Tried, but couldn’t.

  3. Gut Rumbles March 4, 2003 at 6:58 pm | | Reply

    Acidman is done

    Ladies and Gentlemen, I present to you the 24th Carnival of the Vanities, which includes an eclectic collection of posts

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