Berkeley La Raza Law Journal
Volume 13 Number 1 (2002)
Symposium Issue
Article 1
2002
On the Appointment of a Latina/o to the Supreme
Court
Kevin R. Johnson
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Recommended Citation
Kevin R. Johnson, On the Appointment of a Latina/o to the Supreme Court, 13 La Raza L.J. 1 (2002).
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On the Appointment of a Latina/o to the
Supreme Court
Kevin R. Johnsont
INTRODUCTION
The possible appointment of a Latina or Latino Justice to the United
States Supreme Court has been on the table for well over a decade.' Its emergence as an issue worthy of serious discussion in some ways represents an acknowledgment of the growing Latina/o presence, and a movement away from
2
Latina/o invisibility, in American social life. The much-publicized Census 2000
reveals that Hispanics currently constitute over 12.5% of the total U.S. population, or almost 35 million people, roughly approximating the number of African
3
live
Americans in the country. Significantly higher concentrations of Latina/os
4
Mexico.
New
and
Arizona,
York,
New
Florida,
Texas,
in California,
In light of the demographics, we should expect-some might say demand-to see a Latina/o on the Supreme Court in the twenty-first century. The
possible nomination of a Latina/o, of course, raises a plethora of questions, int Associate Dean for Academic Affairs and Professor of Law and Chicana/o Studies, University of California at Davis School of Law; Director, Chicana/o Studies Program, 2000-01. B.A.,
University of California, Berkeley; J.D., Harvard University. Thanks to Alan Gongora, Christhy
Vidal, Laura Garrett, the HarvardLatino Law Review, and La Alianza for inviting me to participate
in the "Toward a Supreme Court Appointment" conference at Harvard Law School in April 2001.
This Article represents a revised draft of my remarks. Dean Robert Clark deserves recognition for
providing financial support to the HarvardLatino Law Review. My colleagues Alan Brownstein and
Tobias Barrington Wolff offered helpful research guidance. George A. Martinez, Christopher David
Ruiz Cameron, and Luis Fuentes-Rohwer offered critical comments on a draft of this paper and disagreed with some of my ideas. I shared some of the views expressed here at the "Raising the Bar:
Latino/a Presence in the Judiciary and the Struggle for Representation" conference at Boalt Hall (UC
Berkeley) School of Law in October 2001. Thanks toVictor Rodriguez for organizing the conference
and inviting me to participate. I greatly appreciate the willingness of both 'the HarvardLatino Law
Review and the Berkeley La Raza Law Journalto allow concurrent publication of this Article.
1. See David G. Savage, FrustratedLatinos Lobby Clinton for a Place on High Court,
L.A. TIMES, July 28, 1998, at A5 ("For almost a decade, White House lawyers under Presidents Bush
and Clinton have been quietly searching for a Latino jurist who could be named to the U.S. Supreme
Court."); see also Tony Mauro, Supreme Dream, LEG. TIMES, Nov. 6, 2000, at 1 (stating that Hispanic National Bar Association leader can "almost taste victory in his campaign to have a Hispanic
named to the U.S. Supreme Court").
2. See Juan F. Perea, Los Olvidados: On the Making of Invisible People, 70 N.Y.U. L.
REV. 965 (1995) (analyzing Latina/o invisibility in United States).
3.
See U.S. Census BUREAU, OVERVIEW OF RACE AND HISPANIC ORIGIN: CENSUS 2000
BRIEF 3 (Mar. 2001) (Table 1).
4. See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 2000, at 28
(120th ed. 2000) (Table No. 25) (providing population data by race and Hispanic origin in each
state).
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cluding perplexing ideological ones. The partisan political issues implicated by a
Supreme Court appointment bring to the forefront the diversity of political opinion, correlated to a certain degree with national origin ancestry, among Latina/os
5
in the United States.
This Essay attempts to steer clear of the heated political questions implicated by a Supreme Court appointment at this time, namely the likely conservatism of a Latina/o nominated by a Republican President. 6 Nor will the relative
strengths and weaknesses of possible Latina/o nominees be discussed. Rather, I
instead focus on the potential beneficial impact of the appointment of a qualified
Latina or Latino to the Court as an institution, the Latina/o community, and the
nation as a whole.
Although a heterogenous community, Latina/os in the United States
share important common experiences. 7 Such commonalities suggest that a
Latina/o Justice may bring new perspectives to the Supreme Court. The addition
of a Latina/o voice holds the promise of improving the decision-making process
on constitutional law, civil rights, and other matters. 8 Moreover, just as Justice
Thurgood Marshall's historic appointment in 1967 did for African Americans, a
Latina/o appointment would send a powerful message of inclusion to the
Latina/o community. In sum, depending on the individual, a Latina/o Justice
could make a lasting difference.
5. See Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2
HARV. LATINO L. REV. 101, 129-38 (1997) (analyzing the significance of ideological and political
differences among persons of Mexican, Cuban, and Puerto Rican ancestry inthe United States).
6. Judicial appointments often provoke pitched political battles. The confirmation hearings of Robert Bork and Clarence Thomas are two prominent examples. See generally PAUL SIMON,
ADVICE AND CONSENT: CLARENCE THOMAS, ROBERT BORK AND THE INTRIGUING HISTORY OF TIE
SUPREME COURT'S NOMINATION BATTLES (1992) (discussing controversy over Bork and Thomas
nominations from perspective of U.S. Senator). More recently, several of President Clinton's Latino
nominees to the federal bench faced formidable opposition in the United States Senate because of
their "activist" views. See Neil A. Lewis, After Long Delays, Senate Confims 2 JudicialNominees,
N.Y. TIMES, Mar. 10, 2000, at Al (discussing the four year delay in the confirmation of Richard Paez
to court of appeals); R. Samuel Paz, FederalDistrict Court Nomination Process:Smears of Controversy and Ideological Sentinels, 28 LOY. L.A. L. REV. 903 (1995) (offering first person account of
unsuccessful confirmation of Latino civil rights attorney to federal judiciary). President Bush's
nominations-Latina/o or not-are likely to raise political concerns with the conservatism of the
nominees.
7. See Johnson, supra note 5, at 117-29.
8. As has been well-documented, civil rights litigation is limited in its ability to secure
social change for Latina/os in the United States, see George A. Martinez, Legal Indeterminacy,Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980, 27 U.C. DAVIS L. REV.
555 (1994) (analyzing the failure of civil rights litigation to protect the rights of Mexican Americans); RICItARD DELGADO & JEAN STEFANCIC, FAILED REVOLUTIONS: SOCIAL REFORM AND LIMITS
OF LEGAL IMAGINATION (1994); Kevin R. Johnson, Lawyering for Social Change: What's a Lawyer
to Do?, 5 MICtl. J. RACE & L. 201, 206-15 (1999). Consequently, I recognize that, to the extent that
judges may affect the results of litigation, the immediate impact of any judicial appointment on the
legal rights and status of Latina/os in the United States, is limited.
20021
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3
1.
A MODEL To EMULATE: THURGOOD MARSHALL'S APPOINTMENT TO
THE SUPREME COURT
In analyzing the potential impact of the appointment of a Latina/o to the
Supreme Court, history informs our thinking. Consider President Lyndon Johnson's landmark nomination of Thurgood Marshall to the Supreme Court in
1967. 9 Justice Marshall, of course, was the first African American to serve on the
high Court. The appointment undisputedly meant a great deal to African Americans, to the Court as an institution, and to the nation. The nomination of an African American alone represented an achievement for the entire African American
community, unmistakably signaling that it in fact is an important part of the nation as a whole.
Let me begin this discussion with a caveat. The architect of Brown v.
Board of Education, I perhaps the most lauded Supreme Court decision of the
twentieth century," Thurgood Marshall was special in too many ways to fully
capture in this brief essay. It is not likely that a Latina/o on the Supreme Court
will have the same impact that he did, just as the nomination of almost any other
African American of his generation would not have equaled the impact of Justice
Marshall's appointment. 12 Nonetheless, his appointment provides an example of
the potential positive effect of naming a Latino/a Justice to the Supreme Court.
In announcing the nomination of Thurgood Marshall, President Johnson remarked that the appointment was "the right thing to do, the right time to do it,
the right man and the right place." 13 A Latina/o appointment under similar circumstances could have a comparable impact.
9. See generally JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY
(1998). President Johnson announced the appointment only weeks before riots and civil disorder,
connected with African American protest, engulfed cites across the United States. See Charles Sumner Stone, Jr., Thucydides' Law of History, or From Kerner, 1968 to Hacker, 1992, 71 N.C. L. REV.
1711, 1718 (1993); see also Stephen L. Carter, Thurgood Marshall: A Remembrance, 47 OKLA. L.
REV. 5, 7-8 (1994) (summarizing opposition to Justice Marshall's confirmation).
10. 347 U.S. 483 (1954). See generally MARK V. TUSHNET, MAKING CIVIL RIGITS LAW:
THURGOOD MARSHALL AND THE SUPREME COURT, 1936-61 (1994).
11. See DERRICK BELL, RACE, RACISM AND AMERICAN LAW § 5.3, at 164 (4th ed. 2000)
("As with other landmark cases, the Supreme Court's 1954 decision in Brown v. Board of Education
has taken on a life of its own, with meaning and significance beyond its facts and perhaps greater
than its rationale.") (footnote omitted).
12. For example, some commentators have emphasized the difference between Justice
Marshall's appointment and that of the second African American to serve on the Supreme Court,
Clarence Thomas. See, e.g., A. Leon Higginbotham, Jr., An Open Letter to Justice Clarence Thomas
from a FederalJudicialColleague, 140 U. PA. L. REV. 1005 (1992); see also Sherrilyn A. Ifill, Ra-
cial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 WASH. & LEE L. REV.
405, 481-87 (2000) (contrasting Justices Marshall and Thomas and advocating the analysis of how
racial diversity on the judiciary may improve judicial decision-making).
13. John P. MacKenzie, Thurgood Marshall, in 4 THE JUSTICES OF THE UNITED STATES
SUPREME COURT, 1789-1969, at 3064 (Leon Friedman & Fred L. Israel eds., 1969) (quoting President Johnson).
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Thurgood Marshall's service as Associate Justice from 1967 to 1991
deeply influenced the Supreme Court's decisions and decision-making process.
Few would claim that Justice Marshall did not affect the direction of the Court
with the perspective that he brought, his life experiences, and what he said and
did. 4 He wrote majority opinions in many different substantive areas of law,
ranging from civil procedure 5 to federal Indian law 16 to immigration law t 7 to
tax l8 and bankruptcy law.' 9 His constitutional law opinions possessed a clear and
unmistakable voice, expressing a message embraced by many African Americans.' In Justice Brennan's words: "What made Thurgood Marshall unique as a
Justice? Above all, it was the special voice that he added to the Court's deliberations and decisions. His was a voice of authority: he spoke from first-hand
knowledge of the law's failure to fulfill its promised protections for so many
21
Americans. "
14. See Gay Gellhorn, Justice Thurgood Marshall'sJurisprudenceof Equal Protectionof
the Laws and the Poor, 26 ARIZ. ST. L.J. 429, 452-59 (1994) (demonstrating how Justice Marshall
pointed out the reality of living in poverty); William Wayne Justice, The Enlightened Jurisprudence
of Justice Thurgood Marshall, 71 TEx. L. REV. 1099, 1104-09 (1993) (praising Justice Marshall's
sensitivity to real world circumstances of ordinary people); Mark V. Tushnet, The Jurisprudenceof
Thurgood Marshall, 1996 U. ILL. L. REV. 1129 (analyzing how Marshall's experiences as a civil
rights lawyer of African American ancestry influenced his judgment as a Supreme Court Justice).
15. See Shaffer v. Heitner, 433 U.S. 186 (1977) (enunciating test for evaluating whether
state court assertion of quasi-in-rem jurisdiction satisfied Due Process).
16. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (applying Indian Civil Rights
Act to rule of Indian tribal membership).
17. See Michael Scaperlanda, Justice Thurgood Marshall and the Legacy of Dissent in
FederalAlienage Cases, 8 GEO. IMMIGR. L.J. 1 (1994) (analyzing Justice Marshall's immigration and
alienage opinions).
18. See Stephen B. Cohen, Thurgood Marshall: Tax Lawyer, 80 GEO. L.J. 2011, 2011
(1992) ("During his twenty-four years on the Supreme Court, Justice Thurgood Marshall wrote better
opinions on the law of federal income taxation than any of his fellow Justices.")
19. See Karen Gross, Justice Thurgood Marshall'sBankruptcy Jurisprudence:A Tribute,
67 AM. BANKR. L.J. 447 (1993).
20. See, e.g., Police Dep't v. Mosley, 408 U.S. 92 (1972) (holding unconstitutional municipal ordinance prohibiting peaceful picketing and demonstrations); Stanley v. Georgia, 394 U.S.
557 (1969) (invalidating state statute prohibiting the possession of obscene material in the home); see
also Milliken v. Bradley, 433 U.S. 267, 291-92 (1977) (Marshall, J. concurring) ("That a northern
school board has been found guilty of intentional discriminatory acts is, unfortunately, not unusual.
That the academic development of black children has been impaired by this wrongdoing is to be
expected. And, therefore, that a program of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable."); San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 111
(1973) (Marshall, J., dissenting) (calling for intermediate scrutiny of wealth classifications resulting
in disparate funding of public schools); Thurgood Marshall, Reflections on the Bicentennial of the
United States Constitution, 101 HARV. L. REV. 1 (1987) (expressing reservations over celebrating
Constitution's 200th anniversary because of its preservation of slavery). See generally MARK V.
TUsHNET, MAKING CONSTITUTIONAL
LAW: THURGOOD
MARSHALL AND THE SUPREME COURT,
1961-1991 (1997).
21. William J.Brennan, Jr., A Tribute to Justice Thurgood Marshall, 105 HARV. L. REV.
23, 23 (1991) (emphasis added).
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5
During Justice Marshall's tenure on the Supreme Court, it moved in a
more conservative direction, away from his intellectual leanings. As a result,
Justice Marshall wrote increasing numbers of dissents. 22 In the role of "the Great
Dissenter," 23 or, in the words of Drew Days, "our Supreme conscience," ' Justice
Marshall gave voice to the sentiments of many African Americans.
In the famous Bakke affirmative action case, Justice Marshall dissented
from the Court's conclusion that a medical school affirmative action program ran
afoul of the Constitution and starkly described the status of African Americans in
the United States: "The position of the Negro today in America is the tragic but
inevitable consequence of centuries of unequal treatment. Measured by any
benchmark of comfort or achievement, meaningful equality remains a distant
dream for the Negro."' 2 Over a decade later, in City of Richmond v. J. A. Croson
Co., 26 Justice Marshall criticized the majority's finding that a minority set-aside
program designed to remedy past discrimination was unconstitutional and emphasized that "[tihe battle against pernicious racial discrimination or its effects is
nowhere near won. I must dissent. ' 27 Perhaps most memorable, even remarkable,
is Justice Marshall's last dissent, and final opinion on the Court. In Payne v. Tennessee,' the Court overruled recent precedent to allow for the admission of victim impact evidence in a death penalty case. Justice Marshall bluntly wrote that
"[p]ower, not reason, is the new currency of this Court's decisionmaking" and
ominously warned that "[t]omorrow's victims may be minorities, women, or the
' 29
indigent.
Thurgood Marshall also had a discernible impact on his fellow Justices
and the Supreme Court as an institution. His famous story-telling ability based
on his rich career as a civil rights lawyer allowed him to spin tales that gave
real-life meaning to many of the cases that came before the Court. Justice White
observed that Justice Marshall
brought to the conference table years of experience in an area
that was of vital importance to our work, experience that none
22. See Janet Cooper Alexander, A Tribute to Thurgood Marshall: TM, 44 STAN. L. REV.
1231, 1235 (1992) (noting that Justice Marshall, although dissenting for many years in civil rights
and constitutional law cases, remained optimistic and believed "that in the end, right will prevail.").
23.
Kathleen M. Sullivan, Marshall, The Great Dissenter, N.Y. TIMES, June 29, 1991, at
A23.
24. Juan Williams, Marshall'sLaw, WASH. POST. MAG., Jan. 7, 1990, at 12, 15 (quoting
Drew Days).
25. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 395 (1978) (Marshall, J., concurring in part, dissenting in part).
26. 488 U.S. 469, 561 (1989) (Marshall, J., dissenting).
27. Id.
28. 501 U.S. 808 (1991).
29. Id. at 844, 856 (Marshall, J., dissenting).
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of us could claim to match. Thurgood could tell us the way it
was, and he did so convincingly, often embellishing with humorous, sometimes hair-raising, stories straight from his own
past. He characteristicallywould tell us things that we knew but
we did not know
would ratherforget; and he told us much that
30
due to the limitations of our own experience.
Both Justices O'Connor and Kennedy also have written about how much
they learned from their interactions with Justice Marshall.3"
The exact impact of Justice Marshall's participation in Court deliberations, and thus the decision-making process of the highest court in the land, are
difficult to clearly identify, much less quantify. Nonetheless, by all accounts,
they existed and remain a part of his legacy.
Importantly, the appointment of Justice Marshall to the Supreme Court
had a palpable impact on the African American community in the United States.
Upon his confirmation, the Court added a revered African American civil rights
lawyer and the architect of Brown v. Board of Education.32 The appointment was
critically important to African Americans, as the nation's racial sensibilities underwent a radical, at times violent, transformation during the civil rights movement of the 1960s. The nomination and confirmation of Justice Marshall represented a clear signal of increasing acceptance of African Americans into the core
of American social life. 33 Although resistance to such a fundamental change lingers, - this historic appointment moved African Americans closer to full membership in U.S. society. 35 The mere presence of an African American on the na30. Byron R. White, A Tribute to Justice Marshall, 44 STAN. L. REV. 1215, 1216 (1992)
(emphasis added); see also Warren E. Burger, Tribute to the Honorable Thurgood Marshall, 44
STAN. L. REV. 1227, 1228 (1992) ("I find it difficult to identify a single individual in the legal profession who has done more to advance the cause of civil rights than Thurgood Marshall."); Lewis F.
Powell, Jr., Tribute to Justice Thurgood Marshall, 44 STAN. L. REV. 1229, 1229 (1992) ("Thurgood
Marshall's record as an advocate for civil rights has no parallel.").
31. See Anthony M. Kennedy, The Voice of Thurgood Marshall,44 STAN. L. REV. 1221
(1992); Sandra Day O'Connor, Thurgood Marshall: The Influence of a Raconteur, 44 STAN. L. REV.
1217 (1992).
32. 347 U.S. 483 (1954).
33. See generally KENNET L. KARST, BELONGING TO AMERICA (1989) (analyzing efforts
by African Americans and other subordinated groups to attain full membership in U.S. society). Put
differently, Justice Marshall's appointment arguably moved the Court toward better group representation of the African American community. Cf. Lani Guinier, [E]racing Democracy: The Voting Rights
Cases, 108 HARV. L. REV. 109, 125-32 (1994) (articulating interest group representation theory for
evaluating claims under Voting Rights Act). A desire for group representation in the judiciary explains why racial minorities have challenged the lawfulness of state judicial election schemes. See,
e.g., Lopez v. Monterey County, 525 U.S. 266 (1999); Houston Lawyers' Ass'n v. Attorney General,
501 U.S. 419 (1991); Chisom v. Roemer, 501 U.S. 380 (1991).
34. Some have found it difficult to accept an African American at the highest levels of the
U.S. government. For example, President Nixon denigrated Justice Marshall's qualifi-cations to serve
on the Supreme Court. See JOHN W. DEAN, THE REHNQUIST CHOICE 96 (2001).
35. See Robert L. Carter, A Tribute to Justice Thurgood Marshall, 105 HARV. L. REV. 33,
42 (1991) ("The pride and dignity that Justice Thurgood Marshall has inspired in the black community over his long career is paralleled only by the very real, enormous contribution he has made in
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7
tion's highest court-almost unthinkable just a few years before-forever
changed the United States.
II.
THE POSSIBLE IMPACT OF THE FIRST LATINA/O SUPREME
COURT JUSTICE
As Thurgood Marshall's appointment did for African Americans, the addition of the first Latina/o to the Supreme Court could have significant impacts for the
greater Latina/o community, as well as to the Court and the nation as a whole. Importantly, a Latina/o would likely bring new and different ex 9eriences and perspectives to the Supreme Court and its decision-making process. A review of one decision helps demonstrate this point.
In United States v. Brignoni-Ponce,3 7 the Supreme Court stated that
Border Patrol officers on roving patrols could consider the race3 8 of the occupant
of an automobile in making an immigration stop. In the Court's words, "[t]he
likelihood that any given person of Mexican ancestry is an alien is high enough
to make Mexican appearancea relevantfactor" in the decision to stop a vehicle.3 9 Through this pronouncement, the Court ruled that what amounted to race
profiling in immigration enforcement was constitutional.' The Court author
ensuring that black Americans enjoy equality of citizenship."); A. Leon Higginbotham, Jr., A Tribute
to Justice Thurgood Marshall,105 HARv. L. REV. 55 (1991) (contending that African Americans and
the nation as a whole benefitted from Justice Marshall's achievements); Constance Baker Motley,
Thurgood Marshall,68 N.Y.U. L. REV. 208 (1993) (highlighting Thurgood Marshall's impact on the
African American and civil rights communities).
36. See Ifill, supra note 12 (making this point in advocating for greater inclusion of African Americans in the judiciary); cf. Alex M. Johnson, Jr., The New Voice of Color, 100 YALE L.J.
2007 (1991) (analyzing the claim that minority scholars possess a distinctive "voice"). Similar arguments can be made in support of the need to increase the number of women judges. See Judith Resnik, On the Bias: Feminist Reconsiderationsof the Aspirationsfor Our Judges, 61 So. CAL. L. REV.
1877 (1988); Shirley Abrahamson, The Woman Has Robes: Four Questions, 14 GOLDEN GATE L.
REV. 489, 492-96 (1984). In contending that perspective matters to the judicial function, I agree with
Judge Jerome Frank that "[m]uch harm is done by the myth that, merely by putting on a black robe
and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine." In re J.P. Linahan, 138 F.2d 650, 652-53 (2d Cir.
1943) (footnote omitted).
I do not mean to suggest that appointment of any Latina/o to the Court would have equal
consequences. As the contrasting reactions to the appointments of Thurgood Marshall and Clarence
Thomas suggest, see supra note 12, the overall impact of a Latina/o on the Supreme Court would
depend on the particular person nominated.
37. 422 U.S. 873 (1975).
38. "Race" in this context refers to the social construction of different "races" by society.
See generally MICIIAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES (2d
ed. 1994) (analyzing process of racial formation).
39. Brignoni-Ponce,422 U.S. at 886--87 (emphasis added). The Court held, however, that
the stop in question was invalid because the Border Patrol had relied exclusively on "Mexican appearance." See id. at 884-87.
40. See Kevin R. Johnson, The Case Against Race Profiling in Immigration Enforcement,
78 WASH. U. L.Q. 675 (2000).
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ized the Border Patrol to rely on "Mexican appearance" even if no individual,
much less one who "appears Mexican," has been specifically identified as having
violated the immigration laws. Such reliance is premised on the perceived statistical probability that persons of "Mexican appearance" are undocumented immigrants. 41 Ordinary Fourth Amendment and Equal Protection principles, however,
generally prohibit use of race in this way by law enforcement.42 Rather, the Consuspicion, not raw statistical probabilistitution usually requires individualized
43
ties, to justify a police stop.
A Latina/o Justice might well approach the reliance on race and physical
appearance in immigration stops in a wholly different way than the Supreme
Court did in Brignoni-Ponce. Latina/os are likely to appreciate the detrimental
consequences of race profiling in immigration enforcement, which subjects innocent persons lawfully in the country to stops and interrogations largely because of their physical appearance. As a direct result of the Supreme Court's endorsement of reliance on "Mexican appearance," immigration enforcement regularly burdens Latina/o citizens and lawful immigrants of many different national
origin ancestries.'4 Such indignities
seriously undermine the sense of belonging
45
of Latina/os to U.S. society.
41. The Court admitted as much. See Brignoni-Ponce, 422 U.S. at 879 (relying on an estimate provided by the Immigration & Naturalization Service "that 85% of aliens in the country are
from Mexico" as justification for considering "Mexican appearance" in immigration stop) (footnote
omitted). In all likelihood incorrect in 1975, this estimate is clearly inaccurate today. See Johnson,
supra note 40, at 707-08 (stating that best estimates show that only about one-half of the undocumented population in the United States is of Mexican ancestry).
42. See Johnson, supra note 40, at 680-88 (reviewing caselaw). However, when a crime
victim identifies the perpetrator of a crime as of a particular race, law enforcement may consider race
in making a criminal stop. See, e.g., Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999) (dismissing a civil rights claim in a case in which police questioned African American men after victim identified the perpetrator of the crime as African American man), cert. denied, 122 S.Ct. 44 (2001). Like
race profiling generally, this use of race by law enforcement can be abused. See R. Richard Banks,
Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA
L. Riv. 1075 (2001).
43. See, e.g., United States v. Sokolow, 490 U.S. 1, 7 (1989).
44. See, e.g., Hodgers-Durgin v. De IaVina, 199 F.3d 1037 (9th Cir. 1999) (en banc)
(dismissing on justiciability grounds civil rights claims that the Immigration & Naturalization Service
(INS) stopped persons of Latina/o descent without reasonable suspicion); Farm Labor Org. Comm. v.
Ohio State Highway Patrol, 95 F. Supp. 2d 723 (N.D. Ohio 2000) (reviewing evidence that Ohio law
enforcement officers asked only Hispanic motorists for immigration documentation); Murillo v.
Musegades, 809 F. Supp. 487 (W.D. Tex. 1992) (granting an injunction prohibiting Border Patrol
harassment of persons of Mexican ancestry at a high school in El Paso, Texas); see also Susan Sachs,
Files Suggest Profiling of Latinos Led to Immigration Raids, N.Y. TIMES, May 1, 2001, at BI (report-
ing that review of INS workplace raids "showed that agents frequently cited skin color, use of Spanish, foreign accents and clothing 'not typical of North America' as primary evidence that workers
were likely to be undocumented"). Many of these cases involve the alleged violation of the rights of
Central Americans as well as Mexicans. Other Latina/o national origin groups also have had difficulties with the U.S. immigration bureaucracy, with the INS's conduct in the return of Elian Gonzalez to
Cuba a prominent example. See David Abraham, Gonzalez ex rel.
Gonzalez v. Reno, 95 AM. J. INT'L
L. 204 (2001); see also Cuban American Bar Ass'n v. Christopher, 43 F.3d 1412 (1lth Cir.) (holding
that Cuban migrants outside the United States did not have legal right to apply for asylum), cert.
denied, 516 U.S. 913 (1995); Guzman v. Tippy, 130 F.3d 64 (2d Cir. 1997) (upholding indefinite
detention of Cuban national).
45. See Johnson, supra note 40, at 728-35.
LA TINA/O APPOINTMENT TO THE SUPREME COURT
2002]
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9
Moreover, a Latina/o would more likely understand why "Mexican appearance" is a deeply flawed criterion on which to base an immigration stop. He
or she might well ask logical questions about Brignoni-Ponce including but not
limited to the following:
What is "Mexican appearance?" Physical appearances among Latina/ os
46
run the gamut from light to dark skin, black to blond hair, brown to blue eyes.
The Border Patrol, however, apparently relies on stereotypical "Mexican appearance," dark skin, black hair, brown eyes, indigenous features, often with a socioeconomic class overlay,47 when in fact persons of Mexican ancestry possess
many different physical appearances.
Should the Border Patrol be afforded the broad discretion to question
one's citizenship governed by "standards" such as "Mexican appearance?" Because "Mexican appearance" is vague and based on gross stereotypes of undocumented immigrants, how could Border Patrol officers, even ones acting in good
faith, be expected to objectively apply this "standard?"
Aren't most of the people in the United States with a stereotypical
"Mexican" or "Hispanic" appearance lawfully in the country? Although the vast
majority (ninety percent or more) of the Latina/os in the United States are citizens and lawful immigrants,4 8 they may be subject to stops, particularly in the
border region if not the entire Southwest, because of nothing other than their
physical appearance and a Border Patrol officer's hunch that he or she is undocumented.49
Doesn't allowing the Border Patrol to consider "Mexican appearance" in
making an immigration stop stigmatize citizens and lawful residents of Latina/o
descent who fit the stereotype?5" Doesn't this limit their claim to full membership in the national community?
Because of personal experiences, as well as an appreciation of the diversities of the Latina/o community in the United States, a Latina/o is more likely
than an Anglo to be troubled by the reasoning of Brignoni-Ponce.51 Moreover,
46. See Kevin R. Johnson, "MeltingPot" or "Ring of Fire"?. Assimilation and the Mexi-
can-American Experience, 85 CAL. L. REV. 1259, 1291-93 (1997), 10 LA RAZA L.J. 173, 205-07
(1998) (analyzing the significance of the great diversity of physical appearances among Latina/os).
47. See, e.g., Nicacio v. INS, 797 F.2d 700, 704 (9th Cir. 1985) (addressing case in which
plaintiffs claimed discriminatory immigration enforcement and INS officers testified that they relied
on whether a person had a "hungry look," was "dirty, unkempt," or was "wear[ing] work clothing,"
in addition to Hispanic appearance, in deciding whether to question a person about his or her immigration status).
48. See Johnson, supra note 40, at 708-09 (summarizing demographic data).
49. See Edwin Harwood, Arrests Without Warrant: The Legal and OrganizationalEnvironment of Immigration Law Enforcement, 17 U.C. DAVIS L. REv. 505, 531 (1984).
50. See United States v. Montero-Camargo, 208 F.3d 1122, 1134-35 (9th Cir.) (en banc)
(declining to follow language in Brignoni-Ponce allowing for consideration of race in immigration
stops because of, among other things, its "stigmatic harm" to Latina/o citizens and lawful immigrants
in the United States), cert. denied sub nom., 531 U.S. 889 (2000); see also Victor C. Romero, Racial
Profiling: "Driving While Mexican" and Affirmative Action, 6 MICH. J. RACE & L. 195, 206 (2000)
(discussingMontero-Camargo).
51.
Importantly, one cannot assume that non-Latina/o minorities will have similar con-
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she or he may well have personal experience with race profiling in immigration
enforcement. For example, the Border Patrol on numerous occasions has stopped
Federal District Court Judge Filemon Vela, as well as other Latina/o judges in
52
South Texas, for questioning about his immigration status. Border Patrol officers once told Judge Vela that he was stopped because he had too many passengers in his new sports utility vehicle; another time, he was informed that the
tinted windows on his automobile-quite common in warm climates-led to the
decision to stop him. 53 Similarly, the Border Patrol repeatedly pulled over Eddie
mayor of a Los Angeles suburb, well over a hundred miles from
Cortez, former
54
the border.
Nor is the assumption that Latina/os are immigrants limited to the
Southwest. A U.S. Capitol police officer stopped Luis Gutierrez, a member of the
U.S. Congress of Puerto Rican ancestry, on the way to his congressional office
and flippantly told Gutierrez that he "'and [his] people should go back to the
country [they] came from." 55 Such experiences, analogous to those of Thurgood
Marshall with respect to racial discrimination,5 6 almost inevitably would shape
one's thinking about immigration enforcement and, more generally, the reliance
on alleged group propensities in law enforcement..
Based on personal experience, a Latina/o Justice is likely to understand
the fallacy of "Mexican appearance" and appreciate that Latina/os come in all
shapes, sizes, and appearances, not just the stereotypical ones. Latina/os also
generally know that many non-Latina/o U.S. citizens assume that Latina/osnative born in this country or not-are "foreigners," and treat them as outsiders
to the national community.5 7 This assumption, as seen in Brignoni-Ponce,may
cerns or perspectives as Latina/os. For example, for all his virtues, Justice Marshall at times wrote
opinions that arguably disadvantaged Latina/os. See, e.g., Espinoza v. Farah Mfg. Co., 414 U.S. 86
(1973) (holding that discrimination on basis of immigration status did not violate Title VII of Civil
Rights Act of 1964); cf.Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (dismissing case by foreign
plaintiffs on procedural grounds and suggesting that U.S. courts need not be as open to foreign as to
domestic plaintiffs). Nor did he register objection to the Court's endorsement of Border Patrol reliance on "Mexican appearance" in making an immigration stop. See supra text accompanying notes
37-43. To be fair, Justice Marshall, perhaps like the other Justices in Brignoni-Ponce, may have
focused primarily on the fact that the Court invalidated the particular stop in question because of the
exclusive reliance on race by the Border Patrol in that case. See supranote 39.
52. See Jim Yardley, Some Texans Say Border PatrolSingles Out Too Many Blameless
Hispanics, N.Y. TIMES, Jan. 26, 2000, at A17.
53. See id.; James Pinkerton, Border Patrol Twice Stops U.S. Judge on Way to Court,
HOUS. CIlRON., Oct. 1, 2000, at 1.
54. See Lee Romney, Over the Line?: Citing Questioning of Mayor, Activists Say Border
Patrol TargetsAll Latinos, L.A. TIMES, Sept. 2, 1993, at J1.
55. See Ediberto Roman, The Alien-Citizen Paradoxand Other Consequences of U.S. Colonialism, 26 FLA. ST. U.L. REV. 1, 4 (1998) (footnote omitted). Although he is of Puerto Rican ancestry, Gutierrez's treatment as a "foreigner," even though a U.S. citizen, suggests that he might
appreciate the objections of Latina/os of Mexican and Cuban ancestry to their classification as "foreigners." See supra text accompanying note 37-54.
56. See supra text accompanying notes 9-35.
57. See Johnson, supra note 5, at 117-29.
20021
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LATINA/0 APPOINTMENT TO THE SUPREME COURT
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affect analysis of 58immigration and immigration enforcement issues deeply impacting Latina/os.
Importantly, a Latina/o on the Supreme Court might well bring a unique
perspective to bear on the analysis of substantive bodies of law in which issues
of race arise more subtly than in immigration law. Although facially neutral, and
therefore presumably lawful, English-only laws can be employed to attack
59
Latina/os or, at a minimum, adversely affect the Latina/o community. For ex6°
ample, in Hernandez v. New York, the Court held that a prosecutor could constitutionally use peremptory challenges to strike Spanish-speaking jurors in a
criminal case that required the translation of Spanish into English; with all Spanish-speakers excluded, a Latina/o defendant was denied a jury that included any
Latina/os.
A Latina/o also might look differently than others at various civil rights
62
The recent
issues, 61 including those implicated by criminal law enforcement.
63
growth of Latina/o civil rights scholarship demonstrates that Latina/os have
58. See, e.g., Elvia R. Arriola, LatCrit Theory, InternationalHuman Rights, PopularCulture, and the Faces of Despairin INS Raids, 28 U. MIAMI INTER-AM. L. REV. 246 (1996-97); Sylvia
E. Lazos Vargas, DeconstructingHomo[geneous] Americanus: The White Ethnic Immigrant Narrative and Its Exclusionary Effect, 72 TUL. L. REV. 1493, 1554-67 (1998); Gerald P. L6pez, Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy, 28 UCLA L. REV. 615
(1981); George A. Martinez, Latinos, Assimilation and the Law: A PhilosophicalPerspective, 20
UCLA CIIICANO-LATINO L. REV. 1, 12-13 (1999).
59. See, e.g., Alexander v. Sandoval,,532 U.S. 275 (2001) (finding that Spanish-speaking
plaintiff could not bring federal civil rights claim challenging Alabama's requirement that driver's
license test be given only in English); Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993) (finding that employer's English-only rule did not violate Title VII), cert. denied, 512 U.S. 1228 (1994);
see also Kevin R. Johnson & George A. Martinez, Discriminationby Proxy: The Case of Proposition
227 and the Ban on Bilingual Education, 33 U.C. DAVIS L. REV. 1227 (2000) (contending that language can be employed as a substitute for race and that language discrimination may effectively
result in racial discrimination in violation of the Equal Protection guarantee). For analysis of these
issues, see Steven W. Bender, Direct Democracy and Distrust: The RelationshipBetween Language
Law Rhetoric and the Language Vigilantism Experience, 2 HARV. LATINO L. REV. 145 (1997); Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understandingthe Language of Title VII DecisionsApproving English-Only Rules as the Product of Racial Dualism, Latino
Invisibility, and Legal Indeterminacy, 85 CAL. L. REV. 1347 (1997), 10 LA RAZA L.J. 261 (1998);
Rachel F. Moran, BilingualEducation as Status Conflict, 75 CAL. L. REV. 321 (1987); Juan F. Perea,
Demography and Distrust:An Essay on American Languages, CulturalPluralism, and Official English, 77 MINN. L. REV. 269 (1992).
60. 500 U.S. 352 (1991). The Court previously had held that race could not serve as the
basis for the use of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79 (1986). For criticism
of Hernandez, see Miguel A. M6ndez, Hernandez: The Wrong Message at the Wrong Time, 4 STAN.
L. & POL'Y REV. 193 (1992-93); Juan F. Perea, Hernandez v. New York: Courts, Prosecutors, and
the Fearof Spanish, 21 HOFSTRA L. REV. 1 (1992).
61. See Rachel F. Moran, Neither Black Nor White, 2 HARV. LATINO L. REV. 61 (1997)
(arguing that civil rights matters that concern the Latina/o community differ from those of special
importance to African Americans and other minority groups).
62. See Mary Romero, State Violence and the Social and Legal Construction of Latino
Criminality: From El Bandido to Gang Members, 78 DEN U.L. REV. (forthcoming 2001); Cruz Reynoso, Hispanicsand the Criminal Justice System, in HISPANICS INTHE UNITED STATES 277 (Pastora
San Juan Cafferty & David W. Engstrom eds., 2000).
63. See, e.g., Symposium, Rotating Centers, Expanding Frontiers:LatCrit Theory and
Marginal Intersections, 33 U.C. DAVIS L. REV. 751 (2000); Symposium, Comparative Latinas/os:
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64
civil rights concerns different and apart from those of other racial minorities.
on
For this reason, it should not be surprising that the experiences of Latina/os
65
the state and federal bench arguably have influenced their legal analysis.
In essence, the Supreme Court has lacked a Latina/o voice and perspective. To this point, for example, no Supreme Court Justice has emphasized for
Latina/os, as Justice Marshall consistently did for African Americans, 66 the long
history of segregation and discrimination against Mexican Americans in the
68
Southwest 67 or the racism directed at Puerto Ricans on and off the island. Such
deficiencies are more likely to be remedied by a Latina/o Justice than one of any
other background.
Moreover, perhaps most importantly, the appointment of a Latina/o to
the Supreme Court would signal a movement toward full membership for
Latina/os in American social life, just as Thurgood Marshall's appointment signaled for African Americans,6 9 The naming of a Latina/o Justice in and of itself
Identity, Law and Policy in LatCrit Theory, 53 U. MIAMI L. REV. 575 (1999); Symposium, Differ-
ence, Solidarity and Law: Building Latinalo Communities Through LatCrit Theory, 19 CHICANOLATINO L. REV. 1 (1998); Symposium, LatCrit Theory: Lainas/os and the Law, 85 CAL. L. REV.
1087 (1997), 10 LA RAZA L.J. 1 (1998); Symposium, LatCrit Theory: Naming and Launching a New
Discourseof CriticalLegal Scholarship,2 HARV. LATINO L. REV. 1 (1997).
64. See generally JUAN F. PEREA, RICHARD DELGADO, ANGELA P. HARRIS & STEPHANIE
WILDMAN, RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA (2000) (analyzing
histories of various racial minority communities in United States); TIMOTHY DAVIS, GEORGE A.
MARTINEZ
&
KEVIN
R. JOHNSON,
A READER
ON
RACE, CIVIL RIGHTS,
AND THE LAW:
A
MULTIRACIAL APPROACH (2001) (offering readings on civil rights issues facing multiracial America).
65. See, e.g., Andrade v. Attorney General, 270 F.3d 743 (9th Cir. 2001) (Paez, J.) (invalidating California's "Three Strikes" law); People v. Trevino, 39 Cal. 3d 667 (1985) (Reynoso, J.)
(reversing murder conviction of Latino defendant because of prosecution's use of peremptory challenges to strike Spanish surnamed jurors); Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex.) (Vela, J.)
(issuing injunction prohibiting U.S. government from certain conduct in connection with detention of
citizens from El Salvador and Guatemala seeking asylum in United States), dismissed without opinion, 692 F.2d 755 (5th Cit. 1982); see also Honorable Joseph F. Baca, Constitutionaland Practical
Considerationsof California Proposition 187, 78 MARQ. L. REV. 777 (1995) (discussing adverse
impact of California law on immigrants); Jost A. CABRANES, CITIZENSHIP AND THE AMERICAN
EMPIRE: NOTES ON TlE LEGISLATIVE HISTORY OF THE UNITED STATES CITIZENSHIP OF PUERTO
RICANS (1979) (analyzing law relating to Puerto Rican citizenship); JUAN R. TORRUELLA, THE
SUPREME COURT AND PUERTO RICO: THE DOCTRINE OF SEPARATE AND UNEQUAL (1985) (studying
law concerning Puerto Rico's relationship to United States).
66. See supra text accompanying notes 9-35.
67.
See generally RODOLFO F. ACURA, OCCUPIED AMERICA: A HIsT ORY OF CHICANOS
(4th ed. 1999) (documenting this history).
68. See CABRANES, supra note 65; TORRUELLA, supra note 65; Pedro A. Malavet, Puerto
Rico: Cultural Nation, American Colony, 6 MICH. J. RACE & L. 1 (2000); RomAn, supra note 55;
Ediberto Romdn, Empire Forgotten: The United States's Colonizationof Puerto Rico, 42 VILL. L.
REV. 1119 (1997); see also Kevin R. Johnson, Puerto Rico, Puerto Ricans, and LatCrit Theory:
Commonalities and Differences in Latina/o Experiences, 6 MICH. J. RACE & L. 107 (2000) (calling
for additional analysis of status of Puerto Ricans in continental United States).
69. See supra text accompanying notes 9-35. Asian Americans also face obstacles to attaining full membership in the national community. See Robert S. Chang & Keith Aoki, Centering
the Immigrant in the Inter/National Imagination, 85 CAL. L. REV, 1395, 10 LA RAZA L.I. 309 (1998);
Leti Volpp, "Obnoxious to Their Very Nature": Asian Americans and Constitutional Citizenship, 5
CITIZENSHIP STUDIES 57 (2001). For discussion of the need for more Asian American judges, see
LATINAIO APPOINTMENT TO THE SUPREME COURT
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13
would symbolize the growing inclusion of Latina/os in the respectable main70
stream, rather than simply the entertainment industry. Such a development
would be particularly important to Mexican Americans and Puerto Ricans, two
Latina/o national origin sub-groups that historically have been denied access to
the highest echelons of U.S. society. 7
Unfortunately, messages of Latina/o exclusion in the legal profession
run rampant. Few Latina/os can be found on the state72 and federal bench. 73 Only
a handful have served as a law clerk to a Supreme Court Justice, 74 a prestigious
credential held by many of the nation's leading attorneys and judges. 75 Severely
under-represented in elite corporate law firms, 76 Latina/os comprise only about
140 of all law professors in the United States. 77 The traditional paths to the Court
Justice Ming W. Chin, Fairnessor Bias?: A Symposium on Racial and Ethnic Composition and Attitudes in the Judiciary, 4 ASIAN L.J. 181 (1997).
70.
See Steven W. Bender, Will the Wolf Survive?: Latino Pop Music in the Cultural
Mainstream, 78 DFN. U.L. REv. (forthcoming 2001) (contending that "Latin Pop" music that emerged
in the 1990s reinforced negative stereotypes about Latina/os); Ediberto Romin, Who Exactly is Liv-
ing La Vida Loca?: The Legal and Political Consequences of Latino-Latina Ethnic and Racial
Stereotypes in Film and Other Media, 4 IOWA J. GENDER, RACE & JUST. 37 (2000) (analyzing negative stereotypes of Latina/os in popular culture); see also Richard Delgado & Jean Stefancic, Images
of the Outsider in American Law and Culture: Can FreeExpression Remedy Systemic Social Ills?, 77
CORNLLI L. REv. 1258 (1992) (analyzing impact of negative stereotypes of various minority groups
in mass media).
71.
See Joseph F. Baca, Making a ProfoundDifference: LatinosAscending to Positionsof
Power and Influence, 3 HARV. LATINO L. ReV. 163 (1999) (discussing importance of Latina/os entering into powerful positions in U.S. society).
72. See id. at 163 (stating that, at that time, only five Latina/os served on state high
courts); see also John H. Culver, The Transformation of the California Supreme Court, 61 ALB3. L.
REv. 1461, 1483 (1998) (noting that the first African American, Latino, and woman were appointed
to the California Supreme Court only in the last thirty years); Sherrilyn A. Ifill, Judging the ludges:
Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C. L. ReV. 95 (1997)
(analyzing impact of lack of racial diversity on state trial court bench).
73. See Richard Delgado, Rodrigo's Fifteenth Chronicle:Racial Mixture, Latino-Criiical
Scholarship, and the Black-White Binary, 75 TEx. L. Ritv. 1181, 1197 (1997) (observing that entire
federal bench at the time included fewer than thirty Latina/os).
74. See Edward S. Adams, Market-Based Solution to the Judicial Clerkship Selection
Process, 59 MD. L. RI'V. 129, 136 (2000) (compiling data showing that only one percent of Supreme
Court law clerks have been Latina/o).
75. The elite qualifications, such as a Supreme Court clerkship, often required of nominees to the Court suggests that the pool of eligible Latina/os for an appointment may be relatively
small, making the goal of a Latina/o Justice all the more difficult to achieve76. See Linda E. Davila, Note, The Underrepresentationof HispanicAttorneys in Corporate Law Firms, 39 STAN. L. REV. 1403 (1987); see also Margaret M. Russell, Beyond "Sellouts" and
"Race Cards":Black Attorneys and the Straitjacket of Legal Practice, 95 MICH. L. REv. 766, 767-
68 (1997) ("At the beginning of [the 1990s], Blacks, Asian Americans, Latinos and Latinas, and
Native Americans comprised only twelve percent of the nation's law students, less than eight percent
of lawyers, eight percent of law professors, and two percent of the partners at the nation's law
firms.") (footnote omitted).
77. See Michael A. Olivas, Latina/o Law Professors 2001-2002, unpublished document
on file with author; see also Michael A. Olivas, The Education of Latino Lawyers: An Essay on Crop
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thus have been unavailable to Latina/os. The first Latina/o Justice could not help
but to encourage the fuller integration of the legal profession and send a powerful message that Latina/os in fact must be treated as full members of U.S. society.
In this vein, appointment of a Latina/o to the Supreme Court would go
far to make "visible" the relatively "invisible" Latina/o community in the United
States. 78 Public attention to the nomination itself would direct attention to the
growing Latina/o national presence. The questioning of a Latina/o nominee by
Senators in confirmation hearings would likely highlight Latina/o civil rights
concerns. 79 Such a high visibility platform might well have a lasting impact on
the national consciousness.
CONCLUSION
The appointment of a Latina/o Justice to the United States Supreme
Court unquestionably would be a historic milestone. Just as the appointment of
Justice Thurgood Marshall did, a Latina/o nomination would leave a lasting impression on the Court and the nation, with the President who took this courageous step literally "making history." The new Latina/o Justice would likely
bring a fresh perspective to the Court's decision-making process. Most importantly, a Latina/o Justice on the Court would represent a significant move toward
full membership and equal citizenship for Latina/os in the United States. It
would add significantly to their sense of belonging to the national community. It
would announce the true arrival of Latina/os into the mainstream.
Cultivation, 14 UCLA CHIicANo-LATINO L. REV. 117, 128-38 (1994) (analyzing difficulties in increasing number of Latina/o law faculty). For analysis of the efforts to hire Latina/os at Harvard Law
School, for example, see Luz Herrera, Challenging a Tradition of Exclusion: The History of an Unheard Story at HarvardLaw School, 5 HARV. LATINO L REV. 51 (2002).
78. See supra text accompanying notes 2-4.
79. See supra text accompanying notes 37-68. The public attention paid to controversial
Supreme Court nominees, such as Robert Bork and Clarence Thomas, see supra note 6, raised the
national consciousness about their views on issues of pressing public concern. Cf. LAURENCE H.
TRIBE, GOD SAVE Ttis HONORABLE COURT (1985) (advocating careful Senate scrutiny of philosophy
of Supreme Court nominees).