Today’s announcement by President Obama of the nomination of Sonia Sotomayor to the Supreme Court brought a great deal of excitement to the Hispanic community. Discounting Justice Cardozo (of Portugese ancestry), Sotomayor will be the first Hispanic justice on the court. Yet, the excitement is understandable — few can discount the pride groups may feel at having one of their own ascend to the highest court in the land. The excitement over Sotomayor is no different than the enthusiasm Italian-Americans felt over the nomination of Justice Scalia or that African-Americans felt over the nomination of Justice Marshall. But amidst the hoopla, now is a good time to remember another lawyer who, had he been held merely to the same standards of Sotomayor, may well have been the first Hispanic justice: Miguel Estrada.
In 2001, President George W. Bush nominated Estrada to the Court of Appeals for the D.C. Circuit. Yet Estrada’s nomination unleashed a furious Democratic opposition. A staffer to Sen. Dick Durban, who sits on the Senate Judiciary Committee, noted that liberal interest groups saw Estrada as “dangerous”, because he was “Latino and the White House seems to be grooming him for a Supreme Court appointment.” The memo stressed that these groups wanted to “hold Estrada off as long as possible.”
Democrats, many of whom now praise the nomination of Sotomayor, mobilized to deny Estrada even the courtesy of a Senate vote. While one may justify the use of such extreme tactics for a Supreme Court nomination, the Democratic filibuster to avoid voting on his nomination was the first ever used against the nomination of a judge to a circuit court. Despite the efforts of Republicans to force a Senate vote, after seven cloture votes (a Senate process designed to bring debate to an end) and twenty-eight months, Estrada gracefully requested that the president withdraw his nomination. Gleefully, Sen. Kennedy claimed the defeat of Estrada as “a victory for the Constitution” while Democratic Sen. Zell Miller sadly noted that Estrada had “become the latest victim of Washington’s partisan, obstructionist politics.”
Forgotten after the battle was that LULAC (the League of United Latin American Citizens), the largest and oldest Hispanic advocacy group in the nation had unequivocally called on the Senate to confirm an “exceptionally well qualified candidate.” The American Bar Association, certainly no ally to conservative candidates, had certified him as “unanimously well qualified” – their highest rating. Even NBC News noted during a report on the Estrada stand-off that Democrats did not “dispute Estrada’s qualifications”
Why then one may ask the Democratic enthusiasm for Sotomayor where Miguel Estrada was not even allowed an up or down vote? Comparing their academic pedigrees, there is little difference. Sotomayor graduated from Princeton University, summa cum laude, and then from Yale Law School, where she served as editor of the Yale Law Journal. After law school, Sotomayor served as an Assistant District Attorney in Manhattan before entering private practice in a small New York firm. Surprisingly, Sotomayor was nominated to a seat on the U.S. District Court for the Southern District of NY in 1991 and only six years later nominated to the 2nd Circuit Court of Appeals.
Estrada also graduated from distinguished institutions: magna cum laude from Columbia University and then magna cum laude from Harvard Law School, where he was also editor of the Harvard Law Review. Upon his graduation, Estrada served as a law clerk to Judge Amalya Lyle Kearse, a well-respected African-American judge on the Second Circuit, and followed this stint with a clerkship in Supreme Court Justice Kennedy’s chambers. In the legal profession, there is no more sought after position: 40,000 new lawyers graduate each year from American law schools, yet each year only 36 are selected to clerk for a Supreme Court justice. Estrada followed this position with a stint at a prestigious New York law firm, before reentering public service as an assistant U.S. attorney in the influential Southern district of New York. This job was followed by an appointment as assistant Solicitor General in the Justice Department in the Clinton Administration during which time he represented the United States government in numerous appellate matters.
Yet, despite this stellar resume, the same Senators who stand ready to place Sotomayor on the Supreme Court refused to even vote on Estrada’s nomination. Perhaps the new requirement of judicial “empathy” might be the difference? Sotomayor was, after all, born in the Bronx and grew up in a housing project in that borough. After the loss of her father, she was raised by her single mother. Yet, Miguel Estrada may also bring much “empathy” to judicial decision making. Not only is he a Honduran immigrant, but only reached the United States at the age of 17, with little knowledge of the English language. He joined his single mother and in five years had mastered English and navigated a new culture well enough to graduate with distinction from Columbia University. Whatever challenges Sotomayor may have experienced in her life, it is clear that Miguel Estrada has also overcome many struggles.
Immigrants of Hispanic descent should take pride in the nomination of Sonia Sotomayor to the highest court in the land. But they would do well to remember that the very party which so trumpets her nomination also acted to deny another individual of similar ethnicity and origins a chance at reaching the pinnacle of the legal profession. Sonia Sotomayor is poised to assume a seat on the Supreme Court. Miguel Estrada, on the other hand, equally qualified by any measure is not a judge, at any level, and not even employed in public service.
Only in America.