Breaking In: The Rise of Sonia Sotomayor Page 14
When she stood before any audience, Sotomayor was acutely aware of where she was in her own journey as a Latina, and she knew that her up-from-nothing story inspired others and reinforced her own success.
Sotomayor also would have understood the poignancy of this moment for Latinos across the country. In the early 2000s their numbers were swelling, but their educational and employment opportunities were not keeping pace. The 1990s had brought a series of statewide ballot initiatives aimed at curtailing affirmative action and immigration.
Ethnic tensions were evident at the places where many Latinos were able to find work: poultry plants, carpet mills, and construction sites. The steady economic gains of Latinos were threatened by the efforts to stop educational affirmative action in such states as Texas, California, and Florida.4
Affirmative action had made the difference in Sotomayor’s life, and she wanted it to survive for others. A time would come when she could actually influence its survival, as a justice, but for now, as an appeals court judge out on the stump, she was addressing such dilemmas in only the most cautious terms.
She had been invited to the Berkeley conference by student organizers and Rachel Moran, a Latina law professor who had attended Yale Law School with Sotomayor in the 1970s. Moran, whose mother had come from Mexico, was born in Missouri, grew up in Arizona, and graduated from Stanford University before going to Yale, where she was two years behind Sotomayor. Like the judge, Moran was a rising star in the law. She would become dean of the University of California Los Angeles School of Law in 2010. Moran’s accomplishments as a law professor even in the fall of 2001 prompted Sotomayor to quip, “I warn Latinos in this room: Latinas are making a lot of progress in the old-boy network.”5
Sotomayor built on planks laid in other speeches as she spoke, using her fairly standard device of “Who am I?” She launched into the familiar refrain professing her identity as a Nuyorican. “For those of you on the West Coast who do not know what that term means: I am a born and bred New Yorker of Puerto Rican–born parents who came to the States during World War II.” Speaking in a voice that retained its throaty accent, Sotomayor related the glossy version of her parents’ success and happiness on the mainland, rather than offering the blunt honesty that would come later when she revealed that her father was an alcoholic and her mother cold and distant.
Because she was in California, speaking to an audience that included many Mexican Americans, Sotomayor acknowledged the differences among Hispanics in heritage and culture. She joked that she did not know about tacos until she was in college, where she had a Mexican American roommate.
She segued from “how wonderful and magical it is to have a Latina soul” to tensions among Hispanics and the recurring controversy over affirmative action. She did not mention California’s Proposition 209. But her audience certainly would have been aware that five years earlier, state voters had adopted the referendum that banned California state schools and public entities from considering race in the acceptance of applications or hiring of faculty and staff. It was a potent response to decades-old affirmative action that critics said wrongly discriminated against whites. Even as Sotomayor was speaking in October 2001, white students who had been rejected for admissions at the University of Michigan’s undergraduate and law school programs were challenging policies that gave minorities a boost. Sotomayor knew how it felt to be tested on this issue: in 1978, a law firm partner had asked her whether she had gotten into Yale because of affirmative action.
“We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society…,” Sotomayor told the Berkeley audience, “yet we simultaneously insist that we can and must function and live in a race- and color-blind way. That tension … is being hotly debated today in national discussions about affirmative action.” She left her reference to affirmative action at that. She was trying to encourage, not challenge, this audience. There would be other occasions to accentuate what she achieved through affirmative action and to make sure that it did not go down without a fight.
She turned her attention to the federal judiciary and noted that no Hispanics had ever made it to the U.S. Court of Appeals for the District of Columbia Circuit and a handful of other powerful appeals courts. Miguel Estrada had been nominated to a vacancy on the D.C. Circuit at the time, but Sotomayor made no reference to the Republican nominee. She referred instead to the stalled nominations of women and minorities to appeals courts during the Democratic administration of President Bill Clinton.
Sotomayor usually avoided the overtly political. But this time she said, “I need not remind you that Justice Clarence Thomas represents a part but not the whole of African American thought on many subjects,” referring to the skepticism many African Americans directed toward the conservative Thomas.
Students and professors hearing Sotomayor speak at Berkeley would say later that she was inspiring the Hispanics in her audience. Professor Moran, who extended the invitation, said that Sotomayor’s remarks about the value of a wise Latina “didn’t raise any eyebrows” at the time, that Sotomayor was encouraging students to elevate their aspirations: “She made people feel that she was really there for them.”6 That was part of Sotomayor’s natural pattern in such public settings. She developed a kinship with an audience. She welcomed questions, and if a student who took the microphone sometimes fumbled or faltered through nervousness, it was not unlike Sotomayor to move closer to where the student stood and offer words of encouragement.
Certainly in Berkeley, she was suggesting to students that her story of success could be theirs, too. But she went further to make a qualitative comparison that Latinas might make better decisions and to assert that one’s background necessarily made a difference in making those decisions. “People of color,” Sotomayor emphasized, “will make a difference in the process of judging.” She also called “the aspiration to impartiality” in judicial decision making “just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”
Sotomayor contrasted her views with those of a former colleague, U.S. district court judge Miriam Cedarbaum, a 1986 appointee of President Reagan who had said that judges should transcend their personal sympathies and prejudices for greater fairness and legal integrity. “I wonder whether achieving that goal is possible in all or even in most cases,” Sotomayor said. “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
When Sotomayor began to unspool the observation that would become most controversial during her 2009 Supreme Court nomination, she did it with remarkable casualness. She said she was not sure whether it was Supreme Court justice Sandra Day O’Connor or someone else who originally observed that a wise old man and a wise old woman would reach the same conclusions in the law. (The adage can be traced to Minnesota Supreme Court justice Mary Jeanne Coyne.)7 Whoever first uttered those words about wise judges, Sotomayor said, she disagreed with them because she hoped that a wise Latina “would more often than not reach a better conclusion than a white male.”
A better conclusion? That was a startling assertion, as even Sotomayor’s Democratic White House vetters would later concede.
Sotomayor had been voicing versions of this “wise Latina woman” sentiment for years. One of her earliest public references on the topic came in 1994, when she was not yet even on the federal appeals court. Speaking at a convention hotel in Puerto Rico for the 40th National Conference of Law Reviews, she said that she hoped a “wise woman”—not specifically a wise Latina woman—would reach a better conclusion than a man.8
But by the time of the Berkeley speech, Sotomayor had become more forceful in her claim that judges are influenced by their personal experiences and her assertion of the value of her own background. “Personal experiences affect the facts that judges choose to see,” she said, as she implied that she was speaking from her own experience and what she had observed in her collea
gues. Yet, she acknowledged, “I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
Intriguingly, she closed on a defensive note, one that suggested that for all her talk of opportunity and success, she was always struggling with the fear that her Puerto Rican identity and experience merited less respect in the world of the white male judiciary: “Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion.”
She felt that suspicion deeply, often from lawyers who practiced before her. Sotomayor had generally good relations with her fellow judges on the Manhattan-based Second Circuit, but reviews from lawyers were mixed, as seen in the commentary of the Almanac of the Federal Judiciary, a respected volume on all U.S. judges. Compiled by Aspen Publishers, it listed a judge’s academic and professional background, honors, and noteworthy rulings, along with lawyer assessments based on interviews, and was a common resource for practicing attorneys, law professors, and news reporters. Over the years, the assessments of Sotomayor’s temperament grew increasingly critical. In 2001, the year she spoke at Berkeley, the following lawyer comments were representative: “She can be tough. She’s not rude in any way but she’s exacting.” “I’ve never had a problem with her, but I know that some lawyers don’t care for her temperament.” “She’s very accomplished and clearly very smart, and in truth, I think they’re intimidated.” By 2009, the year she was nominated, the tone was harsher. “She seems angry.” “She is overly aggressive—not very judicial.” “She does not have a very good temperament.” “She is nasty to lawyers.”9
Such mixed reviews would continue through the years. In 2009 a committee of the American Bar Association, which had been screening Supreme Court nominees for decades, analyzed Sotomayor’s writings and interviewed lawyers who practiced before her. The report said that some found her “aggressive” during oral arguments and expressed concern that the “wise Latina” comment reflected bias. The ABA committee chalked the first issue up to her being “an assertive and direct questioner,” and when it came to the second claim, its panel found no bias in her work.10
It also would become evident that Sotomayor, more than other judges and justices, would be communicating to multiple audiences. In 2001 she was speaking at a conference about Latinos, largely attended by Latinos. In that setting, her remark about the value of a “wise Latina” attracted no attention. Only when a broader audience read her words were her motives questioned.
A few years after the Berkeley appearance Sotomayor observed in a speech to Cornell University students that the differences minorities face do not “magically disappear” after an Ivy League education or professional success. “We people of color have problems that we struggle with throughout our careers, throughout our lives.” She said that it sometimes seemed as if she lived a charmed life, with her Manhattan apartment and opportunities that brought her into the company of Aretha Franklin, Bernadette Peters, and Robert De Niro. Yet, she told the students, “despite everything I’ve accomplished, I’m always looking behind my shoulder, wondering if I measure up.”11
If the Berkeley speech is viewed in the broader context of her other speeches to student groups, perhaps what one sees most is Sotomayor’s ongoing drive to define herself in a world where she breaks the mold. Asked about that effort in the context of the Berkeley speech, she said, years after becoming a justice, “It’s very hard for people who haven’t lived my life to know what it’s like to have your experiences looked down upon, to be viewed as inferior, to be viewed as not smart enough. You need to affirm that you have value.”
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She would, however, have to eat her words about the “wise Latina” during her 2009 Senate confirmation hearings. It was painful for Sotomayor but necessary in the view of her White House supporters. “I want to state up front and unequivocally and without doubt,” she said early in the hearings, “I do not believe any ethnic, racial, or gender group has an advantage in sound judging.”12
Senator Lindsey Graham, a South Carolina Republican and an important member of the Senate Judiciary Committee, put Democrats on notice within days of President Obama’s nomination that he would be seeking an apology for her sentiment that a Latina would reach a better conclusion than a man. For him, she delivered, testifying, “I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.”
That appeased Graham, but not other Republicans. Senator Jeff Sessions, a former federal prosecutor from Alabama, said that the “wise Latina” comment revealed a distaste for the “American ideal” that all judges should be able to “put aside their personal biases and prejudices.”13
Sotomayor rejected that characterization and continued to minimize her original sentiment. “My rhetorical device failed,” she said. “It failed because it left an impression that I believe something that I don’t … It left an impression that has offended people and has left an impression that I didn’t intend.”
She said she was speaking only of how a person’s varied experiences would naturally affect her view: “Life experiences have to influence you. We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings and put them aside. That’s what my speech was saying.”
Most Senate Republicans were not satisfied. Outside the Beltway, however, the “wise Latina” phrase would take off in 2009. Cartoonists seized it, and not at Sotomayor’s expense. Roll Call’s R. J. Matson combined it with Sotomayor’s childhood passion for Nancy Drew detective stories to depict The Case of the Wise Old Latina, with Nancy Drew pursuing the “Hardly Boys.” On the mock book cover, the Sotomayor figure searches with a flashlight for the nervous-looking caricatures of Newt Gingrich and Rush Limbaugh. In a cartoon by Mike Luckovich of The Atlanta Journal-Constitution, Sotomayor sits before senators and above her are the words “Keep talking. The more you say, the better I look.” In the bubble above one of the senators: “That’s one ‘Wise Latina.’”
For the Supreme Court nominee, the “wise Latina” assertion turned out to be more of a plus than a minus and foreshadowed Sotomayor’s popularity in upcoming years. Rossana Rosado, publisher of El Diario in New York and of Puerto Rican descent, wrote in the Los Angeles Times: “Women in my professional and personal circles are busy ordering T-shirts and buttons with the phrase. We want to be wise Latinas.”14
EIGHT
Race and the Ricci Case
By 2008, Sonia Sotomayor and José Cabranes had served together on the U.S. Court of Appeals for the Second Circuit for a decade. Their relationship had changed as their fourteen-year age difference became less significant. The young woman who once looked up to Cabranes was now his equal. As she worked from a courthouse in Manhattan and he in New Haven, they remained friends, but ideological differences created tension between them. She had not always taken his advice when she was young, and she was less inclined to be guided by him now. That may have been inevitable. What drew Cabranes to Sotomayor in the first place was that she was certain of herself and pushed hard for what she wanted. And Cabranes was simply more conservative than his protégée, especially when it came to the validity of government actions to right the wrongs of discrimination.
On a February weekend in 2008 Cabranes was at home in New Haven, reading the newspaper, when an article about a new judicial decision caught his attention. He saw that a three-judge panel of the Second Circuit had rejected a discrimination claim brought by a group of white firefighters. The men had sued New Haven city officials who had discarded the results of promotion tests because no African Americans and only two Hispanics had qualified for the rank of lieutenant or captain. The city contended that the test format was flawed and could expose officials to lawsuits by minority firefighters who would argue that they had been disproportionately and u
nlawfully kept from promotion. The city had long been trying to counteract past discrimination and had hired an outside consulting firm to help design tests that would not, through subtle and inadvertent bias, hurt the chances of minority candidates. That strategy had apparently not worked.
The firefighters’ lawyer, Karen Torre, had told the New Haven Register newspaper that she was appalled that the firefighters had received only a cursory, unsigned order rather than a reasoned legal opinion “on … the most significant race case to come before the Circuit Court in 20 years.”1
Sotomayor was a member of the three-judge panel that had issued the brief order in Ricci v. DeStefano, denying the firefighters’ appeal. The other judges were Rosemary Pooler and Robert Sack. Both had joined the Second Circuit as appointees of President Bill Clinton in June 1998, five months before Sotomayor had been confirmed.
The Ricci case themes of racial bias and resentment had long threaded their way through Sotomayor’s life. She had benefited from, and continued to support, policies that boosted the chances of minority applicants in education and on the job. And she knew firsthand the controversy over whether such policies led to the hiring of people unqualified for the post. Developments in the case also revealed a different side of her as a judge. Throughout her career Sotomayor had been sure to tread carefully and generally avoided controversy. But in this case she exposed herself to charges of activism or, at least, a cavalier disregard for the firefighters who were alleging discrimination.
The case had been dispatched with a brief order issued on a Friday. It might have escaped public attention. But lawyer Torre had alerted the New Haven Register and expressed sufficient outrage to catapult the story onto the front page, catching the interest of one important reader, Cabranes, who could blow the whistle even louder and eventually attract national attention to the case.
Cabranes took provocative steps of his own as he began working behind the scenes to try to have the case heard again by the full Second Circuit. But Torre and her clients, seventeen whites and one Hispanic, did not know that this veteran judge on the Second Circuit was helping their cause and about to set off a brawl. So after the panel’s February 15 order, Torre began work on a petition to the Supreme Court. In her office just steps away from the federal courthouse on Church Street in New Haven, Torre crafted arguments to try to win a Supreme Court review of the firefighters’ claim that city officials had discriminated against them.2 She filed the petition in early May. Only in June would divisions on the Second Circuit break out into the open.