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Thomas A. Saenz

Thomas A. Saenz

Posted: August 4, 2010 05:40 PM

Sometime this week, the Senate will confirm Solicitor General Elena Kagan to serve on the United States Supreme Court. Her confirmation will, far too late in our history, mark the first time that one-third of the Court's sitting justices are women. Following President Obama's historic nomination last year of Sonia Sotomayor as the first Latina justice ever, Kagan's nomination is also the first time any president has nominated two women consecutively. Kagan has an exemplary record of public service and intellectual achievement, and despite plainly partisan opposition to her confirmation, she is well-qualified to serve as a jurist.

However, Kagan's confirmation as Supreme Court Justice will come without the endorsement of MALDEF, the nation's leading Latino civil rights law firm. Given its mission to promote the civil rights of Latinos in the United States through the legal system, MALDEF has generally taken a public position in support of or in opposition to Supreme Court nominees. The decision to take a neutral position on the confirmation was not easy, and several prominent members of MALDEF's board strongly advised support for Kagan's confirmation.

The outcome arises largely from the way the Supreme Court confirmation process has developed over the last quarter century. Simply put, that process no longer elicits much in the way of useful additional information about a nominee; instead it has devolved into a predictable battle of partisan sound-bites, many of them resting on half-truth and unsupported assumption.

Added to this un-illuminating process is a nominee whose admirable legal career is marked by government service, where a public lawyer's own views are generally not recorded or retained; and a tenure in academia, where, aside from scholarly production in a limited subject-matter arena, views and activities also are not recorded. All of this means that, through no particular fault of the candidate's own, the record lacks an indication that Kagan has an understanding and appreciation of some of the major legal issues of concern to many in the Latino community, such as immigration, language services, and the use of race-linked proxies for discrimination.

This vacuum of information is of concern for two reasons. First, with notable exceptions, Supreme Court justices once appointed generally have not developed significant new perspectives or interests while serving on the high court. That is because, despite their relative anonymity in many circles, the position of justice can be very isolating. Second, and of even greater significance, is the demographic future of the United States.

Kagan's selection, like that of many recent nominees by presidents of both parties, was almost certainly aided by her relative youth. Her age indicates that she will very likely serve for a quarter century or longer. By that time, projections show that more than one in five Americans will be Latino. With such a large and growing Latino proportion of the population, consideration of any potential federal judge's knowledge, understanding, and appreciation of the significant legal concerns of the Latino community ought to be a matter of concern in evaluating candidates.

There is no question that these legal issues will become an increasingly prominent part of the federal-court docket nationwide. Today, two of the most discussed and debated legal cases in the federal court system - one before the Supreme Court and one before the district court - involve challenges to Arizona laws attempting to regulate immigration, with a significant impact on Latinos residing in that state.

Because federal judges have life tenure, most nominees, like Kagan, will serve for many years into an increasingly Latino future. As a result, a demonstrated familiarity with and appreciation of the significant legal issues of concern to the Latino community ought to be a consideration for nominees at all levels of the federal court system. While such awareness certainly exists among potential judicial candidates of all backgrounds, this aspect of the future of the nation and of the federal-court system makes the serious underrepresentation of Latinos among the Obama Administration's judicial nominees all the more troubling.

Although Latinos are the nation's largest minority group, there are fewer Latino nominees to date than from any other minority group except Native Americans, who are completely unrepresented. Latinos are also the only minority group other than Native Americans whose proportion of judicial nominees is below its proportion of the national population. Latinos comprise about one in 12 of the Administration's nominees to circuit and district courts, while they make up about one in seven of the nation's residents. While the Obama Administration's efforts to address the historical underrepresentation of minority group members on the federal bench are laudable, the failure to date to include Latinos, the nation's largest minority group, in that effort is inexplicable.

Elena Kagan will soon serve on the Supreme Court, and indications are that she will be a fair and capable justice, but the absence of information in her record on her understanding and appreciation of legal issues of great concern to the Latino community provides a critical lesson for how our nation evaluates nominations to our federal court system as a whole. We look forward to future efforts to fill this critical gap in our federal bench.