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.