Commentary: Payback shouldn't play into Supreme Court nominations

If Hispanic activists really want to get someone who looks like them on the Supreme Court, they’re going to have to come up with a much better argument than "it’s our turn."

None of the nine justices has announced a retirement date. But that hasn’t stopped widespread prognosticating about how many high court members President Barack Obama might get to replace and whom he’d pick.

And Hispanic groups that lobbied both Bill Clinton and George Bush without success hope to make their case to Obama.

Earlier this week, Tony Mauro at Legal Times quoted a former Hispanic National Bar Association president as saying "It’s not just the right thing to do, but we deserve it." See article here.

Deserve what?

And why?

Do Hispanics "deserve" a place on the Supreme Court because they voted overwhelmingly for Obama over John McCain?

Problem with that reasoning is that a Supreme Court appointment isn’t and shouldn’t be political payoff. There are other ways of rewarding voters’ loyalty, such as promoting legislation or policies responsive to their concerns.

Besides, Hispanic groups would howl, and rightly so, if a Republican administration used a Supreme Court seat to pander to a political constituency.

Do Hispanics "deserve" a Supreme Court spot because they’re the fastest-growing minority group in the United States?

The Supreme Court isn’t a representative body; that’s what we have Congress for.

In a nation as richly diverse as ours, the highest court in the land ought to include members with a range of backgrounds and experiences, no question. Having both men and women who are from different races, ethnicities and religions, who grew up in different parts of the country and held a variety of jobs gives the court a broader perspective on the law that can better inform its decision-making.

But it’s neither essential nor desirable — in fact, it’s impossible — to divide the seats according to the percentages of various racial groups in the general population.

HNBA President Ramona Romero wrote to Obama right after the election, saying that a Latino could bring to the court "a voice that can speak about the law as it affects U.S. Hispanics with the authority that only firsthand knowledge can provide." See article here.

True, but which firsthand knowledge?

Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals in New York, who’s been making most of the speculative short lists, would bring the perspective of a child of Puerto Rican immigrants to the Bronx. Her father died when she was young, and her mother struggled to raise two children on a nurse’s salary, according to a New York Times profile. Sotomayor made it to Princeton and Yale Law School, then worked as a Manhattan prosecutor before becoming a federal judge who’s handled complex business cases and could be best-known for issuing an injunction that ended the Major League Baseball strike in 1995.

On the other hand, Sen. Ken Salazar, who’s also considered a potential nominee, would bring the perspective of a fifth-generation Coloradoan whose family helped found the city of Santa Fe, N.M. His parents both served in World War II, according to his online Senate biography, and he’s been a farmer, small-business owner and state attorney general.

Either would bring solid legal credentials to the table.

But so would Harvard Law School Dean Elena Kagan, another oft-mentioned possibility who’s been praised by Harvard professor Charles Fried, Ronald Reagan’s solicitor general.

And so would Yale Law School Dean Harold Koh, a brilliant, energetic specialist in international law and civil rights who worked in the Reagan Justice Department and Clinton State Department. He could be the first Korean-American on the court.

Obama has said that he would look for empathy in choosing judges. That’s not a philosophy for deciding cases; what the law says still is fundamental. But in the hardest cases, where the law simply doesn’t provide a clear answer, the direction judges take is influenced by their life experiences and their view of how the world works.

Being a Hispanic woman, I’d be thrilled if Obama tapped a Hispanic for the most prestigious of legal jobs.

But he should choose someone who embodies the best mix of excellent credentials and intangibles that are right for the time. That would be the strongest argument for naming a new justice the likes of which the court hasn’t seen before.