Lott's Hispanic Quota

October 5, 1998

The Nation

October 5, 1998

Lott’s Hispanic Quota

By Deborah Goldberg

Senate majority leader Trent Lott has established a new rule for the federal judicial selection process. There can be one, and only one, Hispanic woman on the United States Courts of Appeals. Since there is already one such judge (Rosemary Barkett, on the 11th Circuit), other Hispanic women can serve on trial courts, but the appellate courts are officially off limits.

Too bad for Judge Sonia Sotomayor. She has come a long way from the Bronx housing projects. She has proven herself as a summa cum laude at Princeton, as an editor of the Yale Law Journal, as a prosecutor, and as a commercial lawyer. She impressed former President George Bush (a Republican), who appointed her a federal judge on the Southern District of New York in 1992. But she is a Hispanic woman, so she has gone as far as she can go.

After all, rules are rules, even if they are quotas. The majority leader can’t just make an exception for Judge Sotomayor. It is simply too dangerous, according to Senate Republican staff aides, to confirm another Hispanic woman as an appellate judge. Confirming her would be treated as an admission that she is a highly qualified jurist. (Never mind that she is a highly qualified jurist.)

Once they admit that, the Senate majority would be sunk. What if a sitting Supreme Court justice were to retire? And then what if the President decided to name a Hispanic justice to the vacant seat? And then what if the President ignored the recommendations of the Hispanic National Bar Association, which has not included Judge Sotomayor on their list of proposed nominees for the High Court? And then what if the she were nominated for the vacancy? How could the Senate fight her nomination? You can see that the risk is simply too great.

It is true that refusing to confirm a candidate who is admittedly qualified in intelligence, integrity, and temperament is a radical departure from Senate practice of the past. During the Bush administration, the Democratic-controlled Senate confirmed all 195 nominees looking only to professional competence, probity, and likely judicial demeanor. But the Senate is different now. Under the Republican majority, decisions are made on the basis of sex, race, and ethnicity.

So do not worry that the Senate is picking on Judge Sotomayor. The quota for Hispanic women is not an ad hoc rule specifically designed to deep-six her candidacy, but instead reflects a consistent preference for candidates who look more like Trent Lott and his good ol’ boys. Only selection criteria of that biased sort could explain why, by the end of 1997, 87 percent (13 of 15) of the judicial candidates who had been waiting longest for confirmation were women or minorities, while 80 percent (12 of 15) of the nominees who were most quickly confirmed were male and white.

Statistics like these give new meaning to the concept of tyranny of the majority. The Senate knows that minority candidates have no legal recourse against discriminatory confirmation practices. The majority’s power to pervert the process is in this case completely unchecked except by public opinion.

The irony cannot be lost on the Senate. The Constitution establishes an independent judiciary to serve as a check on the political branches. Because federal judges are insulated from electoral politics, courts can defend the rights of the few against the will of the many. The judiciary, rather than Congress or the President, therefore acts as the primary guardian of marginalized populations. But when the Senate discriminates against minority and female candidates for the federal bench, judicial nominees have nowhere to turn but the voters (who elected the Senate in the first place).

Notwithstanding its election by a popular majority, the Senate has surely gone too far this time. The controversy about affirmative action is a debate about how best to promote equal opportunity in America. No one supports a quota system that bars women or members of minorities from positions for which they are eminently qualified. Or so one would have thought.

So if a one-person quota for Hispanic women on federal courts of appeals seems like a cynical and hypocritical abuse of the democratic process, the time to speak out is now. Because the federal courts cannot act as a check on the Senate majority in this case. And if the Senate is allowed to undermine the judiciary, by refusing to confirm qualified candidates, the federal courts may not long be able to act as a check on the majority at all.



Deborah Goldberg is a Senior Attorney at the Brennan Center for Justice at NYU School of Law.