Race and the Estrada nomination.

The law, lawyers, and the court.
Feb. 27 2003 7:16 PM

Miguel, Ma Belle

The racial ugliness under the Miguel Estrada nomination.

Of all the ugliness churned up by the battle over whether Miguel Estrada deserves a spot on the D.C. Circuit Court of Appeals, the fact that it strips us down to our barest racial selves is the ugliest. If the crash of Trent Lott proved that the Old South still lives in the Senate, the battle over Estrada confirms that the race virus plaguing this country isn't fading with dying senators; it's just morphing into more and more lethal strains. And it's not just Congress. You expect them to behave like petulant babies, strutting and fretting their racial outrage before the cameras. But even more depressing than the unfolding filibuster has been watching Hispanic advocacy groups eat each other alive over the nomination, running commercials attempting to influence congressional votes and accusing one another of being "anti-Latino" for disagreeing over the fitness of the nominee. This confirmation has become the affirmative action debate in different packaging: Can we ever get far enough past racism to figure out how to get past race?

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There are so many different strands of affirmative action and racial misunderstanding bound up in the Estrada nomination that it's virtually impossible to untangle. First, there is the Bush administration's effort to court Hispanic voters by positioning a Hispanic-American for a Supreme Court slot. This is pandering—no different from George Bush Sr.'s determination to replace Thurgood Marshall with an African-American—and it might be permissible pandering if Bush would just cop to it and admit that he wants to put a Hispanic judge on the high court because race matters in America. Instead, it mirrors his profoundly illogical claim that he supports racial diversity in education but opposes affirmative action. Thus, the cynical Bush take on affirmative action: Race matters enough to count when it comes to re-election but not enough to deal with it honestly or systemically.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Then there's the new Republican racial awareness, featuring the grotesque claim that Estrada is being blocked because he is Hispanic. Sen. Orrin Hatch recently whined that Estrada's Democratic opponents were "anti-Latino," the implication being that the real racists in Washington are the Democrats standing between Estrada and his opportunity to break down a significant racial barrier on the bench.

But as depressing as all the name-calling among white lawmakers is, the worst feature of this confirmation is the backbiting among Hispanic-Americans, who can't make up their minds whether it's more important to get a certified Hispanic judge onto the bench—regardless of his views or ideology—or to make sure that their Hispanic judge meets some idealized standard of authentic Hispanicness (preferably demonstrated by mentoring Hispanic children and rising up out of squalor). As the debate grows uglier, it's now becoming a contest among Mexicans, Cubans, and Hondurans about who—to paraphrase Snow White—is the most Hispanic of them all. Robert de Posada, the president of the Latino Coalition, a Washington policy group that supports Estrada, told reporters last week that the Mexican-American Legal Defense and Education Fund only opposes Estrada because he is not from Mexico, which is where they believe the first Hispanic Supreme Court justice ought to come from. De Posada also had some choice words for Robert Menendez, one of the congressional Democrats who opposes Estrada. "Menendez" he said, is "a Cuban-American who looks completely white. I wonder: Has he faced the racism and isolation that other Hispanics have faced?" This, then, is what the discussion has come to: a battle about who is Hispanic enough to warrant the racial preferences that most Americans oppose in the first place.

What the Hispanic groups on both sides don't seem to understand is that, with all this infighting, they are managing to dismantle every single argument for affirmative action and making the case that race should play no role at all in public life.

On the one side, we have the Estrada supporters—including one of the country's largest Hispanic lobbies, the Texas-based League of United Latin American Citizens (LULAC), as well as the Hispanic National Bar Association, the U.S. Hispanic Chamber of Commerce, and the Hispanic Business Roundtable. Their spokesmen seem to muster little beyond the tired argument that it's always better to have someone with brown skin in positions of power than to have someone white. This was the philosophy of Brent Wilkes, director of LULAC who told NPR last fall, "If we vote him down just because he's Latino and we're holding him to a higher standard, then how will that get the community anywhere when we'll probably end up with another white conservative rather than, in this case, I guess Latino conservative?" And in an interview with Hispanic Business.com last week, Hector Flores, president of LULAC, said, "The battle isn't whether he's conservative; it's that he represents Latinos, whether we like him or not."

This attitude reflects several justifications for affirmative action: Break down racial barriers, remedy past discrimination, and create minority role models. All these arguments decline to look past skin color in the interest of getting the bodies onto the bench. But 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. By ending the discussion at skin color, it sets up the implication that minorities succeed only because of preferences, that they couldn't have achieved such successes on their own merits. Could Miguel Estrada or any other minority candidate really sleep at night knowing that half his supporters would support a Honduran Hannibal Lecter as readily as they support him?

What about Estrada's opponents in the Hispanic community? Are they being any less simplistic for their insistence that the nominee match up to some preconceived template for Hispanicness? Groups that oppose the Estrada nomination include the Mexican-American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, and the Southwest Voter Registration Project. In the past weeks, the California state delegation of LULAC has broken away from the national group to oppose Estrada as well. But the most vocal objections come from the Congressional Hispanic Caucus, a group of 20 House Democrats who, unable to evaluate Estrada based on his judicial experience (he has none) or legal writings (which are not being produced) met with him for an hour last June, in the basement of the Capitol. Their conclusion? According to Rep. Robert Menendez of New Jersey, Estrada "shares a surname" with Latinos but has done little to help them. Menendez complains that Estrada had not set up internships or mentorship programs specifically aimed at helping young Latino lawyers, and he told Democrats that his ethnicity would be irrelevant to his day-to-day work as a judge.

But Menendez's sort of thinking decimates the only other justification for affirmative action (and the only one that now counts as a matter of law)—the argument that racial preferences automatically generate "diversity" of experience. To his detractors, Estrada's principal failing is that his privileged upbringing in Honduras and beyond were too "white" somehow—too Columbia and Harvard Law and Gibson, Dunn, and Crutcher. He was not born in squalor, nor did he rise from the barrio. As a result, he does not represent the "Latino experience." By making this argument, Estrada's detractors are merely proving that race is indeed not a proxy for diversity—and that if you really want to guarantee diversity of experience, favoring minority candidates over poor or rural ones is the absolute wrong way to go.

In the end, Miguel Estrada's supporters cannot see past his skin color, and his detractors cannot see past his ideology. As a result, the "debate" over his qualification is happening, yet again, in the weary key of black-and-white. There are good arguments for affirmative action, but the Estrada fight is not the place to find them. We can only hope 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.