Breaking In: The Rise of Sonia Sotomayor Page 16

  All told, it might have been a missed opportunity for Sotomayor, who understood practices that had long kept blacks and Hispanics at lower ranks. She could have elucidated the societal justifications for policies intended to help minorities. She used to speak candidly about how she had fared on tests that she felt were biased.

  In a 1994 appearance at a legal conference in New York, Sotomayor said of her admissions to Princeton University and Yale Law School: “If we had gone through the traditional numbers route of those institutions, it would have been highly questionable whether I would have been accepted.” Sotomayor, a relatively new trial judge at the time, explained to women at a Practicing Law Institute session, “With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale. But my test scores were not comparable to that of my classmates.” Offering her theory on the statistical gap with her classmates, she said, “There are cultural biases built into testing. And that was one of the motivations for the concept of affirmative action, to try to balance out those effects.”17

  But she would not speak about such issues when deciding the Ricci case. Maybe it was fruitless when the three judges could not agree on a legal justification for the New Haven officials’ action. And why go out on a limb? That was not her way on the law. And she knew the political pitfalls of appearing to be an activist on the bench. Three years earlier, in an appearance at Duke University, she had backtracked after blurting out, “The court of appeals is where policy is made.” She caught herself and said, “I know this is on tape and I should never say that, because we don’t make law, I know. Okay. I know. I’m not promoting it, I’m not advocating it.”18

  In the Ricci case, a simple affirmation of the district court order would suffice—and avoid the political hazards of a new opinion. The relevant part of the panel’s February 15, 2008, decision said:

  We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic of the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.19

  Judge Cabranes was surprised at the abrupt handling of the case. After he read the newspaper account, he fired off a memo to the three judges telling them he had seen the front-page story in the New Haven Register, reporting on Ricci v. DeStefano. He had logged on to the court website and read the summary order, which struck him as fairly opaque. He speculated that readers could even think that the suit challenged discrimination against those suffering from dyslexia. Cabranes asked Pooler, Sack, and Sotomayor to reconsider their terse order and issue a fuller opinion explaining the case.

  Pooler responded that they would not change the order. Cabranes countered by saying he would ask the Second Circuit clerk to place a hold on the issuance of the mandate in the case. That was the prerogative of any individual judge.20 He subsequently checked the nearly two-thousand-page record in the case and proposed that the full circuit hear the firefighters’ appeal of the district judge’s ruling.

  The full Second Circuit put the possibility of a rehearing to a vote, and Cabranes lost 7–6. The split was made public in mid-June 2008, when a series of opinions were filed. Sotomayor, Pooler, and Sack opposed reopening the case, and they were joined by Judges Guido Calabresi, Chester Straub, Robert Katzmann, and Barrington Parker. With Cabranes were Chief Judge Dennis Jacobs and Judges Reena Raggi, Richard Wesley, Peter Hall, and Debra Ann Livingston. It was a bitter ideological split. All the judges who voted for rehearing—with the exception of Cabranes—were appointed by Republican presidents. All the judges who opposed a rehearing were selected by Democratic presidents. Parker, although appointed by President George W. Bush to the Second Circuit, had originally been a choice of President Bill Clinton for a trial court position.

  In seeking a new hearing, Cabranes pointed a finger at the Sotomayor panel for failing to consider circuit court precedent and Supreme Court rules for race-based decision making. He said it was “arguable that the deck was stacked” against the high-scoring white applicants. “Whether such action amounts to an impermissible racial quota was not addressed in the district court’s opinion or in the decisions issued by the panel,” he wrote. “What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review.”

  Judges Calabresi and Katzmann denounced Cabranes’s view in separate opinions. Katzmann, a Moynihan protégé whom Sotomayor had known since her days on the district court, insisted the majority was right to follow a tradition of deference, “a tradition which holds whether or not the judges of the court agree with the panel’s disposition of the matter before it.” Chief Judge Jacobs, who had aligned with Cabranes, countered, “To rely on tradition to deny rehearing … starts to look very much like abuse of judicial discretion.”21

  The vote and resulting opinions caught Torre, the firefighters’ lawyer who had already submitted a petition to the Supreme Court, off guard. She immediately sought advice from lawyers sympathetic to the firefighters’ cause, including those in the conservative Federalist Society network. She then revised her appeal to take advantage of Cabranes’s favorable view of her position. Torre also began working with Gregory Coleman, a former law clerk to Justice Clarence Thomas, who had served a stint as Texas solicitor general and then in private practice litigated against government racial policies. In the spring of 2008 Coleman was already preparing arguments for the Supreme Court, challenging a key part of the Voting Rights Act of 1965. Section 5, as it was called, required certain states with a history of racial bias, mainly in the South, to seek federal approval for any change in electoral policies.22

  The Supreme Court granted the firefighters’ revised petition, and by the time the justices heard oral arguments on April 22, 2009, Barack Obama had been elected president and had been in office for three months.

  It had also become evident by now that the conservative Supreme Court majority was interested in using the Ricci case to curtail bias lawsuits tied to statistical disparities. In a series of earlier actions, Chief Justice Roberts and Justice Alito, the successor to Sandra Day O’Connor, had signaled their suspicion of policies intended to benefit minorities as a group. Critics beyond the Court pointed to Obama’s presidential victory as a sign that America had closed its ugly chapter on race discrimination and it was time to abandon the remedies that had been needed in the past.

  The Obama administration tried to chart a narrow course in its legal response to Ricci v. DeStefano. Administration lawyers contended that New Haven had acted lawfully in discarding the test results. But the administration also argued that the case should be returned to the lower courts because neither district court judge Arterton nor the Sotomayor appeals panel had “adequately considered” whether the city’s justification for the action—fear of lawsuits—had been a pretext for the intentional race discrimination the white firefighters claimed.23 Critics of New Haven’s actions, including Justice Alito, would later emphasize that not even the Obama administration endorsed the Second Circuit resolution devised by Judges Sotomayor, Pooler, and Sack.

  When the case was heard at the Supreme Court, lawyer Gregory Coleman was up first. He had taken over the firefighters’ advocacy from Torre. “Racial classifications are inherently pernicious,” Coleman began, “and, if not checked, lead as they
did in New Haven to regrettable and socially destructive racial politics.”24 Justice David Souter, at the time just days from revealing the retirement that would open the door to Sotomayor, asked whether New Haven was in a “damned if you do, damned if you don’t situation.” Souter was suggesting that New Haven faced two fraught and complicated paths regarding the test results: one that would allow it to avoid potential litigation from a “disparate-impact” claim by minority firefighters and another that would head off a discriminatory intent lawsuit from the white firefighters. Coleman disagreed with Souter’s assertion and said that the city, instead of acting in good faith, had simply decided that the exam came “to the wrong racial result” and concluded that “there must be something wrong with the test.”

  When Deputy U.S. Solicitor General Edwin Kneedler, representing the Obama administration, stepped to the lectern, Chief Justice Roberts questioned whether the administration was being hypocritical: “Can you assure me that the government’s position would be the same if … black applicants scored highest on this test in disproportionate numbers, and the city said we don’t like that result … The government of [the] United States would adopt the same position?” Kneedler said the government would have taken the same position if whites had been hurt by the test in the way Roberts described. But Kneedler also wanted to make it clear that the administration was not fully backing the Second Circuit. He stressed that neither the district court nor the appellate panel had adequately considered whether New Haven’s claimed purpose of avoiding a lawsuit from minority firefighters was valid.

  Christopher Meade, who argued on behalf of New Haven, defended the Second Circuit’s handling of the case. He told the justices that employers who wanted to follow Title VII’s goal of rooting out barriers to opportunity were required to scrutinize practices that hurt blacks and Hispanics. He said New Haven acted appropriately when it threw out the test results because the disparate scores would have allowed black challengers to “substantiate an inference of discrimination.” Meade said that employers should be able to take action when they become aware of such flaws in a test.25

  The ruling in the case came on the last day of the Court’s 2008–09 term, and it appeared hard fought. A narrow majority rejected the city’s position and sided with the white firefighters. In the 5–4 opinion of June 29, 2009, Justice Kennedy wrote that an employer must have “a strong basis in evidence” that, had it not taken the action, it would have been liable under Title VII. Kennedy, who had become the crucial vote in the middle on race-related cases after the departure of Justice O’Connor, was joined by Roberts, Scalia, Thomas, and Alito.

  Kennedy wrote that New Haven had no evidence—let alone the required “strong basis in evidence”—that the tests were flawed because they were not job-related. The majority said that the fear of litigation failed to justify New Haven’s actions, and in the end, the city had intentionally discriminated against the men.26

  Justice Alito, an Italian American whose modest roots in Trenton were not unlike those of the firefighters in New Haven, wrote a sympathetic concurring opinion. Joined by Justices Scalia and Thomas, Alito reviewed the longtime connections between Mayor DeStefano and a prominent African American minister as he insisted that a jury could have found that the city’s real reason for scrapping the test results was not fear of litigation, but to please an influential political constituency.

  As Justice Ginsburg took the lead for the dissenting liberals, she opened her opinion by recalling the history of discrimination in fire departments. She noted that in 1972, when Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment, fire departments across the country pervasively discriminated against minorities. “The extension of Title VII to cover jobs in firefighting effected no overnight change,” she wrote. “It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities … Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow.”

  Ginsburg said that the majority’s approach in Ricci would undercut voluntary efforts by local governments to comply with Title VII. When the law became effective in 1965, she wrote, employers responded by eliminating practices that explicitly barred racial minorities from the workplace. “But removing overtly race-based job classifications did not usher in genuinely equal opportunity,” she said. “More subtle—and sometimes unconscious—forms of discrimination replaced undisguised restrictions.” That is why the Supreme Court had interpreted Title VII to allow remedies tied to statistical imbalances to counter such less obvious discrimination.

  Judge Sotomayor’s critics, including some Republican senators, would use the Ricci case during her Supreme Court nomination hearings to question whether she was a fair judge. They would not so much target the kinds of issues the nine justices thrashed out but rather the minimal decision her panel issued. She would defend her part in the dispute by saying that she decided it on “the basis of the very thorough 78-page decision by the district court and on the basis of established precedent.” As far as Sotomayor was concerned, the city faced possible lawsuits over a test “that everybody agreed had a very wide difference between the pass-rate of a variety of different groups.”27 She believed the city had taken the necessary steps, with hearings and witnesses, to assess the situation. She said the only question before her Second Circuit panel was: Did the city do what it was required to do?

  To her, the answer was yes. But she passed up all opportunities as the case was resolved, and then at her hearings, to explain why disparate statistical results in a Civil Service text could expose hidden bias. A vigorous defense of the Title VII approach might have illuminated the dilemma at the New Haven Fire Department. Sotomayor wanted to minimize her role in the case, repeatedly telling senators that the district court judge’s opinion was seventy-eight pages long and substantively comprehensive. As for what happened after her panel summarily endorsed that opinion and the full Second Circuit weighed whether to rehear the case, she stressed the company she was in: “Judge Cabranes had one view of the case. The panel had another. The majority of the vote—it wasn’t just my vote—the majority of the court, not just my vote, denied the [Cabranes] petition” for a hearing by the full court.28

  White House lawyers were watching as the Ricci case played out. They said later that they were not so concerned that the Roberts Court had reversed the Sotomayor panel. That was predictable, given the five-justice majority’s views of racial policies. “The reversal was less important to us than the question of whether she had done an adequate job on the Second Circuit in writing the opinion,” said White House counsel Gregory Craig. Did she take it seriously, they wanted to know, or simply engage in a politically expedient move? “Did she phone it in?” asked Craig.29

  It would be just one of the questions White House lawyers would raise and balance along with everything else when the time came to decide who would get the first Supreme Court nomination of President Obama’s tenure.

  Firefighter Ricci would have his own moment in the national spotlight when he testified in 2009 at her confirmation hearing. Wearing a crisp blue dress uniform as he appeared before the senators, he said the disputed tests were critical to public safety: “When your house is on fire or your life is in jeopardy, there are no do-overs.”

  In the end, Ricci lamented that “the more attention our case got, the more some people tried to distort it.”30

  NINE

  The President’s Choice

  A few weeks after Barack Obama’s November 2008 presidential election, he huddled with legal advisers in his Chicago transition office to thrash out priorities. The Supreme Court came up almost immediately. Obama believed he would have at least two opportunities to make nominations. Justices David Souter and John Paul Stevens—two Republican appointees who had moved to the liberal camp over time—appeared likely to step down during the next four years.

  Obama knew that his lawyers were ga
thering names of potential nominees for all levels of the federal bench, but the president-elect wanted to make sure three names were definitely on the Supreme Court list: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit and an Obama teaching colleague from the University of Chicago; Cass Sunstein, a former professor at the University of Chicago who had just taken a position at Harvard Law School; and Elena Kagan, another former University of Chicago professor, who had become dean of the Harvard Law School. As Obama mused about other possibilities, he mentioned Sonia Sotomayor. “Clearly, she has to be in the mix,” Obama said, according to Gregory Craig, who became the White House counsel.1 Obama understood the potential historic and political benefits of naming the first Hispanic justice to the Supreme Court.

  As a former law professor at the University of Chicago who had written about the “high wire” thrill of teaching students the Constitution, Obama also understood the sheer magnitude of a Court appointment. In his 2006 book The Audacity of Hope, he extolled the individual liberties enshrined in the Constitution and said, “We would be hard pressed to find a conservative or liberal in America today, whether Republican or Democrat, academic or layman” who did not embrace the constitutional values espoused by the High Court.2 Yet he knew that appointments to the bench were polarizing affairs, where the past was prelude. Obama observed that “each side has claimed incremental advances … and setbacks.” In the latter category, he noted that conservatives lamented the leftward drift of David Souter, an appointee of President George H. W. Bush.3

  * * *

  Two decades earlier, the reserved, bookish Souter had come to the White House’s attention through his connections with Republican U.S. senator Warren Rudman and White House chief of staff John Sununu, natives of New Hampshire who had previously worked with him. Souter had been state attorney general and a state court justice. In early 1990 Bush named him to the Boston-based U.S. Court of Appeals for the First Circuit and then tapped him in August 1990 to succeed the retiring Supreme Court justice William Brennan. Sununu promised Republicans that the relatively obscure Souter would be a “home run for conservatives,” but this prediction could not have been more wrong. Souter ended up being one of the liberal members of the Court during the late 1990s and the 2000s, which prompted a “no more Souters” mantra among conservatives.