Breaking In: The Rise of Sonia Sotomayor Read online

  When the family moved to New York, in 1946, Manuel took a job as executive director of the Melrose House, the South Bronx institution that sheltered and serviced Jewish immigrants and eventually Puerto Ricans. When the family moved from the Bronx to Flushing, Queens, in the early 1950s, Cabranes joined the mix of ambitious newcomers, attending public schools before going to Columbia College and Yale Law School. He practiced law in a New York City firm, taught at Rutgers University, and served as head of the Washington office of the Commonwealth of Puerto Rico before he became Yale’s general counsel.

  Now fifty-three, tall, broad-shouldered, still ambitious as well as savvy, Cabranes knew his Supreme Court prospects were not promising. He had come to this point before, only to be disappointed. When Justice White retired, Cabranes had been talked about in the press as a possible successor. But he was never really in the mix.

  The possibility of the “first Hispanic” was much more in the air this time. At the Supreme Court, a private exchange between Justice Scalia and Justice Ginsburg proved that.

  On April 19, two weeks after Blackmun told President Clinton he would be stepping down, Havana-born Silvia Ibanez happened to be at the lectern in the justices’ white marble and crimson velvet courtroom to argue her case. Ibanez grew up in the United States, and prior to her legal career she had been an accountant. So she advertised herself as having a C.P.A. as well as a J.D. in order to attract business as a lawyer. Those dual credentials were the subject of litigation before the Supreme Court. The Florida Board of Accountancy banned advertising of an accounting credential if a person was not a practicing accountant. Ibanez insisted that she had a First Amendment free-speech right to advertise her professional qualifications, and she was arguing her own case.18

  In the early 1990s it was unusual to see a woman at the lectern arguing a case, and it was even rarer to see a black or Hispanic woman. As Ibanez responded persuasively to the justices’ questions, Scalia sent a note down the row to his friend Ginsburg: “Tell your president, she’s his Hispanic.”19

  With one whimsical remark, Scalia—a conservative known for his irreverence—captured the reality of nomination politics.20 He understood that Reagan and the senators who had supported his High Court nomination had relished the opportunity to support the first Italian American justice, and he recalled that in the weeks leading up to his September 1986 confirmation, Senator Robert C. Byrd, a West Virginia Democrat, had contacted him to see if he would attend a Columbus Day celebration in his state. Scalia immediately said yes, knowing that his presence at that favorite holiday of Italians would be a boost to Byrd. During Scalia’s confirmation hearing, so many senators brought up Italian connections that Senator Howell Heflin, a Democrat from Alabama, told the nominee, “I believe that almost every Senator that has an Italian American connection has come forward to welcome you … I would be remiss if I did not mention the fact that my great-great-grandfather married a widow who was married first to an Italian American.” Getting Heflin’s joke, Scalia shot back, “Senator, I have been to Alabama several times, too.”21

  Justice Blackmun, who was now giving President Clinton an opportunity to fill a vacancy, had won his seat on the Court in 1970 as the result of a more traditional association, his long-standing friendship with Chief Justice Warren Burger. President Richard Nixon tapped Blackmun to fill the seat then being vacated by Abe Fortas, who resigned in the wake of a financial controversy. Blackmun was Nixon’s third choice, after the Senate had rejected his first two nominees—U.S. appeals court judge Clement F. Haynsworth, Jr., of South Carolina and U.S. appeals court judge G. Harrold Carswell of Florida. Nixon turned to Blackmun, then a U.S. appeals court judge in Minnesota, on the advice of Burger, who had been a friend of Blackmun’s since they grew up together in that state.22

  Some Hispanic advocates thought that Blackmun’s retirement would clear the way for Cabranes, a fifteen-year veteran of a U.S. district court and arguably the most prominent Latino on the bench.

  Cabranes understood that his ethnicity might help him, but he did not think that it was all he had to offer. Merit and diversity were not mutually exclusive, he often reminded audiences. During a testimonial for two Hispanic judges on the Connecticut Superior Court in 1992, Cabranes had scoffed at supporters of Clarence Thomas who said that race had nothing to do with President Bush’s choice. “Our leaders, on all sides, failed to teach the American people that judicial appointments, even at the highest levels, are eminently political appointments,” Cabranes said. “That there is nothing sinister about the word politics. And most important of all, that the politics of inclusion is not necessarily inconsistent with the politics of merit.”23

  Several judges were being mentioned to succeed Blackmun. Senator Kennedy was still pushing for Boston-based Judge Breyer, who had come close to being named in 1993, and supporters of U.S. appeals court judge Richard Arnold, based in Little Rock, thought he might be the favorite of the Arkansas-born Clinton. Arnold was sitting on the Eighth Circuit, the same court from which Blackmun had been elevated. “In some circles, at least,” Emory law professor Polly Price later wrote, “there was an expectation that Blackmun’s replacement would come from the same geographic region.”24

  Arnold was friendly with Clinton and had known White House counsel Bernard Nussbaum at Harvard Law School, where Arnold graduated first in the class of 1960. Arnold had become a U.S. district court judge in 1978, an appointee of President Jimmy Carter. The following year, Carter elevated him to the Eighth Circuit. President Clinton had briefly considered Arnold in 1993 for the position that went to Ginsburg, but he had been dissuaded by aides who thought an Arnold appointment might smack of cronyism at a time when the new president was bringing in other friends from Arkansas for top jobs.

  Unlike Arnold and Breyer, Cabranes was still a district court judge. A year earlier he had lost a chance for elevation to a Connecticut-based opening on the Second Circuit, despite the backing of the two U.S. senators from that state. President Clinton instead chose Yale law dean Guido Calabresi, a more reliable liberal and an old friend of the Clintons from their Yale Law School days.

  Liberals were suspicious of Cabranes, who had a moderate record as a trial judge and had been mentioned in news accounts as a possible Supreme Court choice for Republican president George H. W. Bush.25 Mexican American leaders also opposed the Puerto Rican judge because they wanted the first Hispanic on the High Court to be of their heritage. “In those days, there was a lot of rivalry between Mexican Americans and Puerto Ricans,” recalled Adelfa Callejo, a prominent Dallas lawyer and Democratic fund-raiser who was among the Mexican American Legal Defense and Educational Fund (MALDEF) leaders resisting a Cabranes nomination. “There was always the feeling that Puerto Ricans did not have the struggles that Mexican Americans had. The fact that he was a conservative had something to do with it, too.”26 Sotomayor, who was friendly with Callejo and her husband, Bill, a member of the Puerto Rican Legal Defense and Education Fund board, had begun to broaden her contacts beyond the East Coast. She heard the criticism from Callejo and others about Cabranes. She was grateful to her mentor for all he had done to help her get her start, but she was also becoming more aware—and wary—of his conservative inclinations.

  Journalists seized on the conflicts among Hispanics, noting that, as a threshold matter, Clinton knew the appointment of the first Hispanic justice would secure him a place in history and, more immediately, improve his appeal among Hispanic voters, particularly Mexican Americans in California and Cubans in Florida. Cabranes “has been endorsed by some Hispanic organizations but is far from a favorite of other Hispanic groups, who view the Puerto Rican–born Cabranes as too conservative and would prefer a Hispanic of Mexican-American descent,” The Washington Post’s Ruth Marcus wrote.27 Neil Lewis of The New York Times observed that White House officials were “considering straightforward political factors, as in, ‘How might this affect the President’s reelection?’” Lewis pointed out that the powerful Mexican America
n Legal Defense and Educational Fund had withheld support of Cabranes.28

  The split among Hispanic groups could be traced to long-standing cultural differences, not just between Mexican Americans and Puerto Ricans but between, for example, prosperous Cubans and needy Dominicans.29 In the early 1990s Cabranes was one of the nation’s most successful Hispanic lawyers, yet that stature did not mean he would be backed by people of such diverse and rival heritages.

  While Hispanic organizations sought to maintain their individual ethnic identities, collectively they felt the need to pressure the White House to name a Hispanic, even if they could not agree on the nominee. “We can’t afford to come out of this thing all fragmented,” Esteban Torres, a Democratic member of the U.S. House of Representatives from La Puente, California, told the Los Angeles Times. “That sends a negative signal. There’s a window of opportunity open to us now.”30

  Hispanic groups tried to close ranks. Antonia Hernández, president of the Mexican American Legal Defense and Educational Fund, wrote to Clinton offering a lukewarm endorsement for Cabranes. She said that the group usually did not take a position on a candidate before nomination, but they promised to support him if he was selected. “He is bright, he is talented, and he of course has fifteen years of federal judicial experience,” she wrote. Then, revealing MALDEF’s true sentiment, Hernández urged the president to consider other Latinos, including state judges Cruz Reynoso in Los Angeles and John Carro in New York.31

  Neither man was a viable contender. Carro had not cleared the political hurdles for a district court judgeship in the early 1990s, and Reynoso, a former California Supreme Court justice, had been ousted by voters on a judicial retention ballot in 1986. Hernández did not mention Sotomayor, who was a generation behind those men.

  Hernández’s letter was an attempt at unity, but it magnified the ambivalence about Cabranes. At the same time, liberal advocacy groups such as the Alliance for Justice were quietly opposing him. An internal report for the group referred to “troubling patterns” in rulings by Cabranes, particularly in employment discrimination cases, and said that he appeared to lack “basic sensitivity to the poor and disenfranchised.” Such assessments circulated privately but set a tone among key players connected with the White House and crucial Democratic senators.

  There were other whispers about Cabranes. Some White House officials said they believed that he had quietly passed the word that he opposed abortion rights when it was possible he might have been nominated by President George H. W. Bush. Cabranes said there was no basis for such a belief. Clinton White House counsel Nussbaum, who had gotten to know Cabranes at Columbia when they were undergraduates, said later that he had heard the antiabortion tale but did not believe it was grounded in truth. Yet Nussbaum said he knew about the split among Hispanics. “If the groups were united,” he said, “it would have helped.”32 The sense among the most liberal members of Clinton’s administration was that Cabranes had hurt his chances with his conservative leanings. Unlike Ginsburg a year earlier, Cabranes had no one inside the administration expressly pushing for him. Ginsburg eventually also had an opportunity to make her case to the president. Cabranes was never called to the White House for an interview.

  In May 1994 Clinton was still enchanted with the idea of nominating a larger-than-life, statesmanlike figure, just as he had been in 1993 when he tried to lure Mario Cuomo to the bench. “My first choice was Senator George Mitchell,” who had announced his impending retirement from the Senate, Clinton wrote later. “He was a good [Senate] majority leader, he had been loyal and extremely helpful to me, and it was far from certain that we could hold on to his seat in the November election.” Mitchell had been a federal judge before becoming a senator, and Clinton thought Mitchell “would be a big personality on the Court, someone who could move votes and whose voice would be heard, even in dissent.”33

  President Clinton’s effort to persuade Mitchell to take the job ended the same way the overtures to Cuomo had played out a year earlier. Mitchell pulled himself out of contention. He said he wanted to devote his attention to work on legislation for comprehensive health-care insurance.

  Clinton looked at Interior Secretary Bruce Babbitt, a former Arizona governor and attorney general who had been considered in 1993. But as the search went down to the wire, Babbitt was eliminated because of opposition from such Senate partisans as Republican Orrin Hatch of Utah, a leading member of the Senate Judiciary Committee, and because there was no obvious successor to run the Interior Department. Babbitt shrugged off the administration’s snub and issued a brief statement when the nomination sweepstakes finally ended: “As enticing as the great indoors is, the great outdoors is where I want to spend my time.”34

  Clinton returned to the possibility of Judge Arnold, who had earned a stellar reputation on the bench but whose health presented a dilemma. Arnold had long suffered from chronic lymphocytic leukemia, and Clinton, after speaking to Arnold’s physicians, believed there was no guarantee he would be able to serve at least fifteen years on the High Court. Clinton later wrote, “My Republican predecessors had filled the federal courts with young conservatives who would be around a long time, and I didn’t want to risk giving them another position” by naming someone whose prognosis was not clear.35 Arnold died in 2004, at the age of sixty-eight, from cancer of the lymph glands. If he had been appointed to the Court, he would have served ten years.

  White House aides continued to tell reporters that Cabranes was under consideration.36 This probably appeased the Hispanic National Bar Association without alienating such groups as MALDEF, because leaders of the latter knew that their opposition to Cabranes was being heard by the right people inside the administration. A top lawyer to Clinton recalled the president saying, “I’m not going to appoint someone the groups don’t even want!”

  As Senator Mitchell, Secretary Babbitt, and Judge Arnold fell out of consideration, Judge Breyer’s chances improved. Lloyd Cutler, who succeeded Nussbaum as White House counsel in the spring of 1994, was an old friend of Senator Kennedy’s and pushed for Breyer, too. Republican senators who had known Breyer when he worked as a Judiciary Committee staffer were putting in a good word. President Clinton began to appreciate the advantage in a nominee with bipartisan support, especially at a time when he was trying to pass major health-care legislation and was increasingly ensnarled in scandals related to the Whitewater land development project in Arkansas.

  The president was running out of political capital, and Breyer became the politically expedient choice. Making history no longer mattered. Clinton realized that he would not gain many political points with the Breyer nomination, but he certainly would not lose many either.

  Then, partly because of pressure from Hispanics who supported him, Cabranes was tapped for elevation to the New York–based U.S. Court of Appeals for the Second Circuit. Connecticut U.S. senators Christopher Dodd and Joseph Lieberman, longtime Cabranes backers, engineered a compromise with New York senator Moynihan to help Cabranes and to protect their respective pieces of Second Circuit turf.37 Clinton announced that he was submitting Cabranes’s name for the Second Circuit two weeks after he nominated Breyer for the Supreme Court.38 The Senate approved Cabranes unanimously on August 9, 1994, less than two weeks after the Senate confirmed Breyer by a vote of 87–9.

  Some Hispanic leaders were not mollified. Wilfredo Caraballo of the Hispanic National Bar Association wrote later, “We believed the promise that the face of justice was finally going to include ours … There exists a moral imperative that all who are among the judged have the right to expect that they may be represented in the faces of those who judge.”39

  Hispanics also disagreed with one another on strategy. Raul Yzaguirre, chair of the National Council of La Raza, which, like the Mexican American Legal Defense and Educational Fund, resisted Judge Cabranes, said, “They said we all have to be centered behind Cabranes and nobody else, and we didn’t think that was a winning strategy.”40 Some in the Hispanic community re
acted negatively to such sentiment. Howard Jordán, managing editor of Critica, a journal of Puerto Rican policy and politics, declared at the time, “The real blame goes to President Clinton, but I think the situation was exacerbated by the inability of the Hispanic community to come together with one voice.”41

  In the end, Clinton’s Supreme Court choices did not appear to cost him Hispanic voters. Two years after the Breyer appointment, Clinton won reelection, with 72 percent of the Hispanic vote, over Republican senator Bob Dole, who drew only 21 percent. When Clinton first ran for president, in 1992, he attracted 61 percent of the Hispanic vote as he claimed victory against George H. W. Bush, who then drew 25 percent of the Hispanic vote.42

  Cabranes realized that even if the reelected Clinton got another chance to fill a vacancy on the Supreme Court, he would not be the nominee. Cabranes had faced that reality when Breyer was selected and he read in The New York Times that Clinton had considered choosing a Hispanic but was so “cool” to Cabranes that he “turned to his advisers and asked in exasperation if they could find him a Hispanic candidate other than Judge Cabranes.”43

  * * *

  Through the late 1990s Hispanics continued to be the fastest-growing minority group in the United States, and the White House redoubled its efforts to find Latinos to appoint to the lower federal courts. Sonia Sotomayor was one of them. In June 1997 President Clinton nominated her for a seat on the U.S. Court of Appeals for the Second Circuit, where Cabranes had landed three years earlier.

  She almost did not make it. The stakes were higher for her—and for Republicans—because she was being considered for a position just below the Supreme Court. During her first judicial nomination, in 1991–92, Sotomayor had confronted a GOP administration that naturally was not as interested in a nominee sponsored by leading Democrat Moynihan. Five years later, key Republicans understood that if she were confirmed to the appeals court, she would be in line for the High Court.