Democrats face dilemma with mi­nor­ity picks

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

Democrats face a dilemma if Pres­i­dent Trump ap­points more mi­nor­ity ju­di­cial nom­i­nees, forc­ing the party that touts its com­mit­ment to di­ver­sity to de­cide be­tween con­firm­ing more con­ser­va­tives or op­pos­ing black, His­panic and Asian judges — and risk­ing an­ger­ing key con­stituen­cies.

They got a taste of it last month when they at­tempted a fil­i­buster and then voted en masse against Amul Tha­par, Mr. Trump’s pick for the 6th U.S. Cir­cuit Court of Ap­peals, who be­came just the sec­ond South Asian Pa­cific Amer­i­can to reach the ap­pel­late level.

Shawn He, a board mem­ber with the San Diego Asian Amer­i­cans For Equal­ity Foun­da­tion, said the Se­nate’s party-line vote on the judge’s con­fir­ma­tion was un­for­tu­nate.

“We are con­cerned by the cur­rent toxic po­lit­i­cal cli­mate that puts par­ti­san pol­i­tics above the in­ter­ests of the peo­ple,” said Mr. He.

Judge Tha­par was on Mr. Trump’s cam­paign list of 21 po­ten­tial Supreme Court nom­i­nees. If an­other va­cancy arises at the high court, he or an­other mi­nor­ity pick could make Democrats sweat.

“The Democrats see Tha­par as a po­ten­tial Supreme Court nom­i­nee, and were he to be nom­i­nated if a Supreme Court va­cancy opened up, it would be very dif­fi­cult to op­pose him,” said Shel­don Gold­man, a po­lit­i­cal science pro­fes­sor at the Univer­sity of Mas­sachusetts at Amherst.

Still, Mr. Gold­man said he doubted Democrats would suf­fer too much po­lit­i­cally if they can por­tray Mr. Trump’s picks as ide­o­log­i­cal out­liers.

That was what Democrats tried to do with Judge Tha­par, who de­spite earn­ing the top rat­ing from the Amer­i­can Bar As­so­ci­a­tion was de­rided as a bad judge.

Sen. Mazie K. Hirono, a Hawaii Demo­crat whose state has the high­est pop­u­la­tion of South Asian Pa­cific Amer­i­cans, missed the com­mit­tee vote and the floor vote on Judge Tha­par be­cause of health is­sues, but she joined in the at­tempted fil­i­buster against him and her of­fice said she would have voted against con­fir­ma­tion.

A spokesper­son for Ms. Hirono said she was par­tic­u­larly con­cerned about Judge Tha­par’s ju­di­cial phi­los­o­phy on gay rights, money in pol­i­tics and re­pro­duc­tive rights.

Two other Se­nate Democrats of South Asian Amer­i­can her­itage, Sens. Ka­mala D. Har­ris of Cal­i­for­nia and Tammy Duck­worth of Illi­nois, did vote against Judge Tha­par. Nei­ther of their of­fices re­turned re­quests for com­ment about why they didn’t sup­port the judge.

Fights over mi­nor­ity judges are noth­ing new.

When Pres­i­dent Ge­orge W. Bush nom­i­nated Miguel Estrada, a highly touted His­panic lawyer with im­pec­ca­ble le­gal cre­den­tials, for the U.S. Cir­cuit Court of Ap­peals for the District of Columbia, Democrats launched the first-ever suc­cess­ful par­ti­san fil­i­buster of a ju­di­cial nom­i­nee.

An­a­lysts said Mr. Estrada was likely be­ing groomed for the Supreme Court and Democrats didn’t want a Re­pub­li­can to name the first His­panic to the high court.

Their gam­bit paid off. Mr. Bush ended up ap­point­ing two white men to the high court, leav­ing Pres­i­dent Obama the chance to ap­point the first His­panic, Jus­tice So­nia So­tomayor.

“I think they prob­a­bly have the same con­cern about Tha­par, which is he could be­come the first Asian-Amer­i­can jus­tice,” said Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice. “I think that was one rea­son you saw … 44 Democrats voted against him.”

Richard Ro­driguez, pres­i­den­t­elect of the District of Columbia’s His­panic Bar As­so­ci­a­tion, said his group will eval­u­ate ju­di­cial picks based on how well they serve the city and the His­panic com­mu­nity. But he said he can re­spect sen­a­tors who op­pose judges for le­git­i­mate rea­sons.

“It de­pends on why some­one is block­ing a nom­i­na­tion,” said Mr. Ro­driguez. “If it’s for po­lit­i­cal rea­sons only, that would be prob­lem­atic.”

Michael Ger­hardt, a law pro­fes­sor at the Univer­sity of North Carolina at Chapel Hill, said Democrats might lose sup­port from mi­nor­ity vot­ers over re­ject­ing lower-court judges but it’s rare for con­stituents to fol­low low­er­court ap­point­ments that closely.

“It’s un­clear to what ex­tent their con­stituents or their sup­port­ers are re­ally con­cerned with lower-court nom­i­na­tions,” said Mr. Ger­hardt. “Typ­i­cally, low­er­court nom­i­na­tions don’t mat­ter very much for sen­a­tors’ re-elec­tion, and sen­a­tors know that.”

Mr. Ger­hardt said ju­di­cial ap­point­ments have be­come in­ter­twined with pol­i­tics, and each side has at­tempted to thwart the other’s nom­i­nees.

“What you’re see­ing is sort of the long-term con­se­quences or, for lack of a bet­ter word, pay­back,” he said.

Dan Gold­berg, le­gal di­rec­tor at the pro­gres­sive Al­liance for Jus­tice, said Democrats had good rea­son to op­pose Judge Tha­par. He pointed to a rul­ing Judge Tha­par made as a district judge on ju­di­cial ethics and fundrais­ing that was par­tially over­turned by higher courts.

“Quite frankly, it’s very dis­turb­ing that Pres­i­dent Trump has only of­fi­cially nom­i­nated one non­white ju­rist,” said Mr. Gold­berg. “It is crit­i­cal that the fed­eral bench is di­verse as pos­si­ble.”

But Car­rie Sev­erino, chief coun­sel at the con­ser­va­tive Ju­di­cial Cri­sis Net­work, said op­pos­ing mi­nor­ity judges is a bad po­si­tion for Democrats.

“The left re­al­izes that this puts a lie to their own iden­tity pol­i­tics,” said Ms. Sev­erino.

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