Breaking In: The Rise of Sonia Sotomayor Page 19
Hispanic groups had not previously coalesced around a single Court candidate, yet the tracks they laid in the prior decades influenced politicians who capitalized on the appointment when the time came.
In the end, Sotomayor had been in the right place at the right time for the right president. She had the tickets and the people: Princeton, Yale, Morgenthau, Calabresi. Fortified by the dreams of her mother, her personal smarts, and intense determination, Sotomayor had defied predictions from her youth.
Later on the afternoon of May 26, 2009, as President Obama was walking around the West Wing, tossing a football as he sometimes did to relieve stress, he ran into Ron Klain, Vice President Biden’s chief of staff, who had helped vet Sotomayor.
The relief and satisfaction of the choice was on the president’s face. Said Obama, “I feel really good about this.”34
TEN
Standing Out
Before Sonia Sotomayor’s appointment, a total of 110 justices had been named to the United States Supreme Court since its 1789 creation. All but 4 of these justices were white men, reflecting the traditional power base of the nation. Beginning with African American Thurgood Marshall in 1967, the groundbreakers navigated the public expectations and internal rituals of a tradition-bound institution.
Veteran civil rights litigator Marshall and women’s rights attorney Ruth Bader Ginsburg remained advocates, to an extent, based on their respective identities. Sandra Day O’Connor and Clarence Thomas resisted being defined by their sex and race.1 The four varied, too, in what they revealed of their personal difficulties traversing the overwhelmingly white male world.
None would be as publicly candid as Sotomayor. The way she presented herself to audiences—intimately, relentlessly—set her apart from all other justices. Commentators would begin calling her “the people’s justice.” But her style and all the attention did not always suit the other Supreme Court justices and the legal elite in their orbit.
Sotomayor knew that she stood out. She accepted that—embraced it—as part of her individuality and what she had long called her “lifelong commitment to identifying myself as a Puerto Rican Hispanic.”2 In the summer of 2010, two months after she had shaken Supreme Court decorum by dancing salsa at her first end-of-term party, Sotomayor was in Denver, talking to students about the value of diversity and the challenge of being different. She recalled the culture clash she experienced at Princeton University in 1972.
“The point is that I was different,” she said. “It took a lot of hard work to make a life there.” When a young woman asked Sotomayor whether she ever felt completely comfortable, the justice paused for several seconds. “Do you ever—when you’re that different?”3
Even now, as a Supreme Court justice, Sotomayor told the students, she asks herself, “Am I really here? Do I really belong?” She looked directly at individual students before her and said, “Even if I’m a little bit different, it’s okay. I keep getting knocked down and I just keep getting up.”
This was the essence of Sonia Sotomayor’s identity. In her fifties, at the pinnacle of the legal profession, she still defined herself as unlike others. Sotomayor made it clear that as she traversed the privileged side of life within the Supreme Court’s velvet ropes, the difficulties of her past remained embedded in her psyche. As she intimated in Denver, she always felt as if she were being tested and had to prove herself.
But she turned this sense of siege to her advantage, and she took her tale of striving and success on the road, where it resonated, again, to her advantage.
* * *
When she first moved into the Supreme Court building across from the Capitol, she chose a suite on the third floor, where she could have larger quarters for herself and her staff. The other justices occupied the second floor, where tighter spaces dictated that some of a justice’s law clerks had to work in offices a few doors down or on another floor. The third-floor configuration, which Justice Ginsburg had initially chosen when she joined the Court sixteen years earlier, offered Sotomayor easy interaction with her law clerks.4 She drafted opinions on a computer, papers spread out around her on the desk. “I like being able to call out to my law clerks with an idea and … popping out of my desk and running in to them and saying how about this, and engaging them with the idea,” she said.5
Sotomayor did not stint on furnishings. She requested a custom-made oversize wooden desk with inlaid leather that was the talk of the Court’s support staff because of its extravagance. She decorated with patterned rugs and upholstered furniture in soft peach and gold hues. The woman who had been intimidated during her interview at Radcliffe by an office that exuded pretentiousness—the fancy couch, the Oriental rug—now sat in surroundings that, in a material way, resembled the luxury she had once feared. Yet some visitors felt it had the welcoming atmosphere of a living room rather than a judicial office.
Sotomayor’s novelty as the first Hispanic justice was evident in her chambers, too. The renovated kitchen and break room, shared with her staff, was filled with photographs and souvenirs from events that celebrated her groundbreaking status. There were snapshots of her appearances on the PBS children’s show Sesame Street. In one episode she settled a dispute between Goldilocks and a bear whose chair she had broken. In another, she explained the idea of “a career” to the Muppet fairy Abby Cadabby, nudging her away from becoming a princess and suggesting that she aspire to be a judge. The hallway leading to Sotomayor’s suite of offices was also filled with photographs, including those documenting her September 2009 Major League Baseball moment. Clad in a blue-and-white-striped jersey, she threw out the first pitch for the New York Yankees.
The pace of Sotomayor’s chambers was hectic: a constant flow of law clerks and aides, friends, former colleagues, and other people she collected along the way to the nation’s highest Court. She seemed to swim best in a sea of good company, and she found many people to be good company. Between appointments, her aides reminded her to monitor her blood sugar level to control the diabetes. They also kept her gym schedule to ensure that she got her exercise. Her telephones—office landlines and the pair of smartphones she carried—rang constantly. She interrupted conversations for another justice, for her mother, for a friend just out of surgery. Between her meetings with visitors and talks with law clerks and other staff, she often did not begin working on the nuts and bolts of cases until late in the day. That meant she frequently toiled late into the evenings.
Her rock remained Theresa Bartenope, who achieved unmatched status in the Sotomayor circle. She had served as an administrative assistant since the 1980s at Pavia & Harcourt and accompanied Sotomayor up through all three steps up the judiciary. Sotomayor deemed Bartenope “the soul and life of my chambers” when she saluted her in 1998 at the appeals court investiture. Bartenope was Sotomayor’s “second Mom,” and nearly as good at keeping her on track. Since Bartenope’s husband and family remained in New York, she took the train down to Washington every week.
As was her way through life, Sotomayor stayed in close contact with friends—from Princeton, Yale, and her early legal career. She performed weddings for her former law clerks, attended theater openings, and tried new restaurants. She picked up new companions as she built a life in Washington, even as she regularly talked about how she missed the eclectic atmosphere of New York City.
When people approached her, at official events or in the grocery store, she shook hands and posed for pictures, exuding a sense of warmth and intimacy.
She dated occasionally. When she visited Puerto Rico early in her Court tenure, Sotomayor told an audience that she did not expect to find real romance anytime soon. “I understand from my girlfriends that I’ve been put on a most-eligible-bachelorette list,” she said. “But right now I pity the man who tries to find a minute in my schedule.”6
Thinking she would be happier in a relationship, friends sometimes tried to fix her up with men. Sotomayor was unusually candid about having had trouble getting close to people. At one publi
c appearance she revealed that she went through a period in her life when she would ask her nieces and nephews for hugs, just to try to get more comfortable with intimacy.7
Sotomayor fell into Washington without adopting its stuffy ways. She was following the first two women justices, O’Connor and Ginsburg, by a generation, and she eschewed their traditionally feminine style. Sotomayor had mixed feelings about public expectations regarding fashion and her own sense of herself: “It would take me most of my life to feel remotely put together, and it’s still an effort.”8 She showed up for a dinner party in a sweater and slacks. She wore little makeup and let her hair fall free. She still rushed across a room in a way that would make her appearance-conscious mother cringe.
Yet such authenticity was part of her attraction. And she acknowledged what few other prominent figures revealed: she sometimes felt awkward and out of place. In her speeches, she talked about fighting the fear of missteps and failure. “Like yourself. Like who you are,” she advised young people trying to make their way in the world.
Sotomayor’s looks, particularly her bright nail polish and flashy jewelry, were scrutinized by the news media. Latoya Peterson, a black feminist commentator, praised her for spurning the “safe or acceptable” and for revealing that she is “not ashamed of who she is or where she has come from.” Peterson noted that during the confirmation hearings Sotomayor minimized the nail polish and hoop earrings and that as soon as she was confirmed returned to her usual choices. “Assimilation requires a very high price and her refusal to do so is an amazing stand for individual truth. There is nothing inferior about wearing colored nail polish, or wearing an off-the-rack suit to work, or rocking hoop earrings. Just as many of us are asked to remove our ethnic and regional markers in exchange for success (straightening hair, tightening diction, and avoiding items that call attention to the wearer) Sotomayor’s subtle—but persistent—refusal to fall in line implies much more than a love of candy apple red polish.”9
* * *
During Sotomayor’s first couple of years as a justice, her voice was heard mainly outside the Court in inspirational speeches personal to her situation. Even before she began putting her life story into a book, people lined up to see her, to touch her, to hear her talk about what she had overcome as a Bronx Latina. Her tale of setback and success moved audiences.
When she spoke at an event sponsored by the Juvenile Diabetes Research Foundation, she drew gasps and tears from children—and many adults—as she related how she learned, at age seven, that she had type 1 diabetes. She was drinking so much water she began wetting the bed at night. When a physician tried to tell her that having diabetes was not so bad, she said she thought to herself, “If it isn’t so bad, why is my mommy crying?”10
She maintained tight bonds with her Hispanic community. On the May 25, 2009, evening that President Obama had called to offer her the nomination, he had asked her to promise him two things: “The first,” she recalled, “was to remain the person I was and the second was to stay connected to my community. I said to him that those were two easy promises to make, because those two things I could not change.”11
She shunned interview requests with such traditional news organizations as The Washington Post and posed for a sophisticated photograph—her hair sleekly combed out, her makeup elegant—for Latina magazine. Taken in 2009 by the international photographer Pláton, the picture shows her in black robe, one hand pressed over her heart, the other on her lap. Her nails are fire-engine red. Her expression is penetrating, heartfelt.
In the accompanying feature story, Latina’s former editor in chief Sandra Guzman described Sotomayor as “a doting hostess [who] puts together cheese platters, makes tasty salads and hooks up a mean churrasco with a tangy lemon marinade.” Guzman recalled asking for advice during dinner with Sotomayor and other friends. “She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules.”12
Guzman also recounted an exchange between President Obama and Sotomayor after her confirmation: She “pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles. Obama joked that he had been briefed on the size of the earrings … Without skipping a beat, Sotomayor replied: ‘Mr. President, you have no idea what you’ve unleashed.’”13
* * *
Justice Sotomayor exuded a hurricane force that sometimes shattered the orderly, down-to-the-minute decorum so distinct to the Supreme Court. The symmetry of the marble-columned building completed in 1935 and the reserve of the dark-wood trappings were reinforced by the formality of the Court’s people. The culture of the black robe naturally muted personalities. But not Sotomayor’s.
She was particularly conspicuous in the Court’s most public activity, oral arguments, when the nine justices questioned lawyers for both sides of a case. These were carefully choreographed events lasting one hour, with each side allowed thirty minutes. Small white and red lights on the lectern signaled to lawyers when they had five minutes remaining, then when they were out of time. Continuing with an argument after the red light went on visibly annoyed Chief Justice Roberts and, during the tenure of his predecessor, Chief Justice William Rehnquist (1986–2005), drew stern admonishment.
From the bench, Sotomayor was persistent and demanding. Most of the justices interrupted lawyers’ answers to some extent, but she had a way of breaking in just as a lawyer was getting to the heart of an answer to another justice’s question. Or she would start to speak as another justice was in the middle of a question. It was not rare to hear Chief Justice Roberts tell her to wait because a more senior justice was already speaking.
Yet her questions were not pointless. She sought clarity on the details of a case. “Are you talking about current figures or past? Tell us the date of the figures,” she said to one lawyer in an exchange regarding statistics of prisoner suicides. In that same 2010 dispute over crowded conditions in California prisons and the impact on inmates’ mental health, Sotomayor’s intensity and some of the responses it engendered from colleagues were on display. She asked the attorney representing California how officials were meeting health-care needs. She wanted details, adding, “Slow down from the rhetoric.”14
As the lawyer tried to answer, she repeatedly interrupted, saying such things as “When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you’re going to deliver care that is going to be adequate?” Justice Scalia, more sympathetic to the state’s dilemma than to the prisoners’ condition, interrupted and added in a somewhat mocking tone, “But don’t be rhetorical!”
In these early years, Sotomayor drew more than her share of grimaces from justices in the public courtroom.
Sotomayor asserted that she usually had a plan in mind when she jumped into the questioning: “Something most people will learn about me, I get so intensely engaged in argument that it’s never fake,” she said in an early interview. “Every question I ask has a purpose, it has some importance to something that is troubling me or that I’m curious about.”15
Some colleagues said they believed her dominant presence on the bench and in conference was an attempt to challenge the doubters, to prove that she was prepared for cases. Others, however, said they believed her manner undercut her ability to work toward consensus.16
Overall, what did the other justices really think of her? It was a question that arose often among lawyers, journalists, and other close followers of the Court. The query naturally came up because of how Sotomayor stood out. Yet in these tradition-bound environs,
where most justices shared backgrounds of privilege, it was a question complicated by the dimensions of ethnicity and class. And there was no single answer.
It was clear through interviews with her colleagues that Sotomayor engendered appreciation for her life story and respect for her work ethic. The justices varied in their personal assessments, as is natural with any group: some found her warm, amiable; others found her abrupt and exasperating. At the human level, these differences with her were not small. In the larger scheme of the law, they were.
The nine were appointed for life, and they had an incentive to get along. Any qualms expressed by colleagues about Sotomayor were minuscule compared with clashes among the nine in the great span of history.
As Justice Sotomayor neared her five-year mark on the Court, she joked about her reputation for interruptions and said she was trying not to break in so much. It was a hard pattern to stop. Breaking in is what she did.
* * *
Sotomayor began her life as a justice at a momentous time. Her early terms brought unprecedented disputes over President Obama’s health-care initiative, immigration policy, affirmative action, voting rights, and same-sex marriage.
Her first term was an especially grueling one for all the justices. During most of the 2009–10 session she and her colleagues watched Justice Ginsburg fight off exhaustion as she accompanied her husband to numerous physicians for cancer treatment and other health problems. He died the last week of the term. It had also been a difficult session for the ninety-year-old John Paul Stevens, the third-longest-serving justice in history. He decided to retire after concluding that age was getting the best of him. In January 2010 he had faltered and stuttered repeatedly as he read from the bench portions of a lengthy dissenting opinion in a major campaign finance case.17
All the justices were feeling the strain of ideological divisions exposed in that case—Citizens United v. Federal Election Commission. The five-justice conservative majority, which was seizing control in many areas of the law, had rolled back decades of precedent to strike down limits on corporate and labor union spending in elections.18 Just days after the decision, President Obama, in a rare and highly public rebuke, denounced the ruling in his nationally televised State of the Union speech before Congress. Six justices—three who happened to be from the Citizens United majority and three from the dissenting side—were in the front rows in the U.S. House of Representatives as the president condemned the decision. Justice Samuel Alito, who had voted with the majority against the campaign finance regulation, mouthed the words “Not true” as Obama predicted that the decision would “open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”19 It was a twenty-second moment that went viral and exemplified the tensions between the executive and judicial branches at the time.20