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A diversity disappointment

Another letdown for those who hoped for Hispanic or female choice

By Gwyneth K. Shaw

Sun Reporter

November 1, 2005

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Twice this year, Gabriela Lemus hoped to hear the news that President Bush had made history and chosen the first Hispanic nominee to the Supreme Court.

Yesterday, her hopes were dashed again when Bush named Judge Samuel A. Alito Jr. - the son of an Italian immigrant - as his choice to fill the seat of retiring Justice Sandra Day O'Connor.

"Three strikes," said Lemus, national director of policy and legislation for the League of United Latin American Citizens, lamenting what she called another missed opportunity.

"He's not demonstrating a whole lot of commitment to diversity, that's for sure," she said. "That is unfortunate, because it doesn't reflect the diversity of our country, by any stretch of the imagination."

Lawmakers and activists who had lobbied for Bush to pick a woman to replace O'Connor - the first woman to serve on the nation's highest court - were also unhappy yesterday.

"I was very disappointed that President Bush couldn't find one Republican woman qualified to be on the Supreme Court," said Sen. Barbara A. Mikulski of Maryland, a Democrat and the longest-serving women in the current Senate. "He didn't look hard enough or far enough."

O'Connor, a swing vote during almost 25 years on the court, announced her plans to retire July 1. A few weeks later, Bush nominated John G. Roberts Jr. to replace her, then switched that nomination to chief justice after William H. Rehnquist died. Bush then picked the White House counsel, Harriet E. Miers, who withdrew late last week.

First lady Laura Bush urged her husband this year to choose a woman. But on the heels of the failed Miers nomination, Bush went with Alito, 55, who went to Princeton University and Yale Law School and has spent his entire career working in the public sector. Since 1990, he has been a judge on the U.S. Court of Appeals for the 3rd Circuit.

Some, including Senate Democratic leader Harry Reid of Nevada, expressed disappointment that Bush had not chosen someone outside the federal judiciary, a quality many admired in Miers.

"He has chosen yet another federal appellate judge to join a court that already has eight justices with that narrow background," Reid said. "President Bush would leave the Supreme Court looking less like America and more like an old boys club."

If Alito is confirmed, the court would have seven white men, one woman and one African-American man.

O'Connor was the court's only woman from 1981 until Justice Ruth Bader Ginsburg was appointed in 1993. Justice Clarence Thomas, appointed in 1991, replaced the only other African-American ever to serve on the court, Thurgood Marshall.

Hispanic advocacy groups had particularly high hopes for the first court vacancies since 1994. Hispanics make up an estimated 14 percent of the nation's population, about 41 million people.

Attorney General Alberto R. Gonzales was an early Bush favorite when O'Connor retired, but conservative groups were wary of him because of his opinions on abortion rights and affirmative action while he was a Texas Supreme Court justice.

In addition to Miers, a number of female federal appeals court judges were said to be on the president's short list, including Janice Rogers Brown, who is African-American, and Priscilla Owen, Alice M. Batchelder, Edith Hollan Jones and Maureen E. Mahoney.

Vermont Sen. Patrick J. Leahy, the top Democrat on the Senate Judiciary Committee, said the court would lose something valuable if Alito replaces O'Connor and Bush could have chosen from a number of highly qualified Hispanics, African-Americans and women to fill the seat.

"I imagine this announcement is a disappointment to many Hispanic-Americans who expected the president to seize this historic opportunity, given to him for a third time, by nominating the first Hispanic to the court," he said in a speech on the Senate floor. "I also imagine that the women here in our nation's capital today to honor Rosa Parks, the first woman to lie in state in the Capitol rotunda for her work in bringing racial justice to our nation, are somewhat saddened that the seat of the first woman to serve on our highest court is not going to be filled by another woman."

Conservative groups, though, celebrated Alito, not because of his gender but because of his qualifications and judicial philosophy.

"We are not disappointed that President Bush did not nominate a woman," said Jessica Echard, executive director of the Eagle Forum, founded by conservative icon Phyllis Schlafly. "We don't believe in gender quotas on the court, and we just want the most qualified jurist who will be able to serve the country and interpret the Constitution as the founders intended."

Jan LaRue, chief counsel for Concerned Women for America, said she thought it was more important for Bush to nominate a conservative jurist with a long track record of legal opinions than it was to put another woman on the court.

"We had several women on our short list, and we would've been delighted with any one of them," LaRue said. "But I think the president served himself well by showing he's not going to let anybody put him in a box."

Liberal women's groups - which consider abortion rights a flagship issue - said Alito's record is more of a cause for concern than having a man replace O'Connor.

"We think it's important for the court to reflect the diversity of America, but the most important thing is that judicial nominees respect the rights and liberties of all American citizens," said Nancy Northrup, president of the Center for Reproductive Rights. "We are deeply troubled by the nomination of Judge Alito."

gwyneth.shaw@baltsun.com