November 6, 2005
Bush Missed Chance to Make History with Court Pick
By Ruben Navarrette Jr.

SAN DIEGO -- President Bush likes to sprinkle a few tortured phrases in Spanish whenever he's hosting Hispanics at the White House for Cinco de Mayo. The gesture seems intended to show the nation's largest minority that he appreciates their contributions to American society and considers it a priority to make sure that doors closed to previous generations of Hispanics are open to this one.

That is, except the door to the Supreme Court.

In recent months, President Bush has had three opportunities to make history by nominating a Hispanic to the court, and yet he didn't do it.

That's not good. It means that Bush hasn't lived up to the promise he made when he was running for president in 2000. And it suggests that he takes lightly an argument that deserves to be taken seriously: that those from different backgrounds bring different perspectives to their duties on the court.

Some conservatives think that's silly, insisting that Supreme Court justices approach every case objectively and a nominee's race or ethnicity shouldn't matter.

Those folks need to grow up. Consider the way in which Sandra Day O'Connor or Clarence Thomas approach cases involving affirmative action. Does anyone really think that their views, born in part from their life experiences, are indistinguishable from those of David Souter or Stephen Breyer?

I'm not saying that a nominee shouldn't be qualified, or (who are we kidding?) in the case of a woman or a minority, shouldn't be ultra-qualified with all the usual resume goodies and then some. I'm just saying that there's nothing wrong with making it a priority to pick a Hispanic, in the same way that much of Washington seems to agree that it's totally appropriate to pick someone based on his or her ideological bent.

This is an archaic barrier that deserves to be broken, and that there are now, thankfully, good solid candidates who could break it. Some of them are already on the Court of Appeals. There's Emilio Garza of San Antonio, who sits on the 5th Circuit, and Yale Law graduate Jose Cabranes of New York, who sits on the 2nd Circuit. Either would be a great choice.

Of course, the Hispanic whose name is most often mentioned as a top prospect for a seat on the Supreme Court is Attorney General Alberto Gonzales.

And do you remember why, according to conventional wisdom in Washington, a Gonzales nomination was considered problematic?

We were told that Bush would end up in an ugly fight with members of his own party over concerns that his nominee wasn't conservative enough. So, Bush went on to nominate White House Counsel Harriet Miers which provoked -- yep -- an ugly fight with members of the President's own party over concerns that the nominee was, among other things, not conservative enough.

There were others who said that picking Gonzales, because he had a hand in drafting the rules governing the administration's treatment of detainees in the war on terror, would only inflame Senate Democrats and set the stage for a partisan war. So, naturally, when the Miers nomination imploded, what would you expect Bush to do but nominate Samuel A. Alito Jr., which inflamed Democrats and set the stage for a partisan war.

What sense does that make?

The White House was going to have a rough road no matter what. That's because, in Washington, raising money is about raising hell. Being grumpy brings more contributions to your organization, or more hits to your Web site. It's nothing personal; it's just business.

That being the case, why wouldn't Bush do something really significant and nominate Gonzales to the Supreme Court?

Perhaps because the attorney general has communicated to the president that he and his family have other plans in mind, like returning to Texas -- just as Bush intends to do when the second term is up. A lifetime appointment would change those plans.

Gonzales recently told a Texas newspaper that he would consider running for office in his home state, but that he didn't seem himself serving in Washington. What does that leave to capture the imagination of someone who has already run statewide and served as secretary of state and on the Texas Supreme Court?

Alberto Gonzales seems ready to let someone else become the first Hispanic on the Supreme Court. One day, he may try for what's behind door No. 2: being elected the first Hispanic governor of Texas.

© 2005, The San Diego Union-Tribune

http://www.realclearpolitics.com/Commentary/com-11_6_05_RNJ.html