washingtonpost.com
Some Disappointed Nominee Won't Add Diversity to Court
O'Connor Was Among Those Hoping for a Woman or Minority

By Dan Balz and Darryl Fears
Washington Post Staff Writers
Thursday, July 21, 2005

Justice Sandra Day O'Connor offered a quick and pithy reaction to President Bush's nomination of federal appellate judge John G. Roberts Jr. as her successor on the Supreme Court. "That's fabulous," she told the Spokane (Wash.) Spokesman-Review after a day of fly-fishing. "He's good in every way, except he's not a woman."

O'Connor's reaction reflects the view of just one person, but as someone who gained a reputation for having an intuitive sense of public attitudes and mores during her two decades on the court, she put a spotlight on the obvious trade-off involved in Bush's decision.

Given the opportunity to maintain some modicum of gender balance on the court, or even make history by appointing the first Latino justice, as many Hispanics had openly advocated, the president selected a white male to fill the O'Connor vacancy. In doing so, he was following the precedent of most other presidents: In the history of the Supreme Court, only four of more than 130 nominees -- Justices O'Connor, Ruth Bader Ginsburg and Clarence Thomas and former justice Thurgood Marshall -- were not white men.

Whether that presents a serious problem for a president who has made the expansion of the Republican Party's coalition central to his political and governing strategy was a matter of debate yesterday. But there was widespread agreement that the selection of Roberts will put more pressure on Bush to name a woman or minority to the court should another vacancy occur during his presidency.

"I think it raises the stakes significantly for the next one, whoever that might be," said Democratic strategist Anita Dunn. "I think right now there's disappointment. If there were another vacancy [filled by a white man], there would be anger."

Hispanic leaders were most vocal in expressing their disappointment that Bush had not made history with his selection. "We're disappointed, to say the least," Hector M. Flores, national president of the League of United Latin American Citizens, said while attending the National Council of La Raza convention in Philadelphia. Flores had lobbied hard in behalf of Attorney General Alberto R. Gonzales.

Manuel Mirabal, president of the National Puerto Rican Coalition, attending the same convention, agreed, saying there might be political consequences for Republicans who had hoped to cut deeper into the Democrats' 60 percent share of the Hispanic vote in the last presidential election.

Others questioned how much long-term fallout Bush faces. Even some Democrats pointed out that he has put together diverse Cabinets in both terms and has put women in positions of power in the White House and elsewhere.

But the choice not to fill the O'Connor seat with a woman or minority was not lost on Bush's allies yesterday as they sought to rally behind Roberts while addressing the deficiency on the diversity front.

"Some people have asked me, 'Well, didn't you want a woman?' Well, yes, of course I did," said Sen. Kay Bailey Hutchison (R-Tex.). "Of course I think diversity is important on the Supreme Court. I would like to see another woman. I would like to see a Hispanic American on the Supreme Court. But I believe first and foremost what we want is the very best person. And, for this time, the president has chosen John Roberts."

Sen. Ken Salazar (D-Colo.) released a letter addressed to the president lamenting what he said was a missed opportunity to assure the inclusion of women at all levels of government. "You and I both have two daughters," Salazar wrote. "The profound message we should be giving to them is that their gender creates no limitations for them to live up to their God-given potential. Yet, I fear that with the loss of Justice Sandra Day O'Connor from the United States Supreme Court, we are sending the opposite message."

Hispanic leaders might have been more vocal in their disappointment were it not for the fact that many worried that Bush would appoint a conservative Latino whose views conflict with their own agendas. "My greatest fear was that President Bush would choose someone who will not be sensitive to our demands," and that fear has not abated, said Cesar A. Perales, president of the Puerto Rican Legal Defense and Education Fund.

Gonzales was viewed by Hispanics as a Republican centrist, the best they could hope for among the available candidates, Rodolfo de la Garza, a Columbia University political science professor who specializes in Latino politics, and other experts said. But supporting him outright would have been awkward, because human rights groups with whom they are allied opposed Gonzales for his role in providing legal authority that led to the torture of prisoners in Iraq.

Democratic strategist Jim Jordan said that by not appointing a woman or Latino, Bush has "highlighted a negative stereotype of the party -- a party that truly only welcomes conservative white males. That's an unflattering view of the party and one frankly we thought they were trying to ameliorate."

But Republican National Committee spokesman Brian Jones said that the committee's vigorous outreach to minorities would continue. "I don't think this is something that's going to derail the efforts underway at this point," he said.

Republicans said yesterday they are confident the O'Connor vacancy will not be the last Bush will be asked to fill, given the health of Chief Justice William Rehnquist. But the Spokesman-Review reported that O'Connor said she doubted the president would name a woman as chief justice. "So that almost assures," she said, "there won't be a woman appointed to the court at this time."

Research editor Lucy Shackelford contributed to this report.

© 2005 The Washington Post Company