Breaking In: The Rise of Sonia Sotomayor Read online

  2. Ortiz was general counsel of a large food manufacturer and distributor. Figueroa, president of PRLDEF at the time, was a former assistant Connecticut attorney general and member of the Connecticut General Assembly. Romano, who had been a top-ranking prosecutor in the U.S. attorney’s office in the Southern District of New York, became a partner in a large New York firm. Sotomayor wrote in her 2013 memoir that Romano had been among those who gave her name to Senator Moynihan’s search committee.

  3. Dahlia Lithwick, “Miguel, Ma Belle: The Racial Ugliness Under the Miguel Estrada Nomination,” Slate, February 27, 2003.

  4. Estrada response to Senator Herb Kohl, September 26, 2002, Senate Judiciary Committee hearing on the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit.

  5. Juan Figueroa to Patrick Leahy, June 11, 2001.

  6. All quotations from the transcript of the Senate Judiciary Committee hearing on Miguel Estrada’s nomination, September 26, 2002. Author attended the hearing; transcript available through the U.S. Government Printing Office.

  7. PRLDEF report originally issued in September 2002, reissued January 27, 2003.

  8. Obama, Audacity of Hope, 79.

  9. “Talking Points re D.C. Circuit,” from John Roberts file in archives of President George H. W. Bush; made available to reporters in 2005 when Roberts was chosen for the U.S. Supreme Court.

  10. “The Hispanic Population: Census 2000 Brief,” U.S. Census Bureau report issued in May 2001. The report noted that an additional 3.8 million Hispanics were counted in the Commonwealth of Puerto Rico.

  11. Kagan, nominated by Clinton but denied a hearing by the Senate, became a Supreme Court justice in 2010.

  12. Ronald Klain to Senator Patrick Leahy, January 16, 2002.

  13. Charles E. Schumer, “Judging by Ideology,” New York Times, June 26, 2001.

  14. Jack Newfield, “The Right’s Judicial Juggernaut,” The Nation, October 7, 2002.

  15. They were the Mexican American Legal Defense and Educational Fund, the National Association of Latino Elected and Appointed Officials, the National Council of La Raza, the National Puerto Rican Coalition, and the Puerto Rican Legal Defense and Education Fund. May 1, 2002, letter to Leahy, signed by leaders of the five groups.

  16. PRLDEF report originally issued in September 2002, reissued January 27, 2003.

  17. California La Raza Lawyers Association and Mexican American Legal Defense and Educational Fund (MALDEF) letter and report to the Senate Judiciary Committee, September 24, 2002.

  18. Estrada testimony, Senate Judiciary Committee hearing.

  19. Darryl Fears, “For Hispanic Groups, a Divide on Estrada: Political, Geographic Fault Lines Exposed,” Washington Post, February 20, 2003; Lithwick, “Miguel, Ma Belle.”

  20. Bill Miller, “Appeals Court Nominees Share Conservative Roots: Records of Roberts and Estrada Are Being Studied Closely,” Washington Post, May 23, 2001.

  21. Letter of former U.S. solicitors general to Leahy, June 24, 2002.

  22. Newfield, “The Right’s Judicial Juggernaut.”

  23. Hatch statement, Senate Judiciary Committee hearing.

  24. Senator Dianne Feinstein, February 13, 2003, Senate Congressional Record, S2373–S2374.

  25. Senator Patrick Leahy, February 10, 2003, Senate Congressional Record, S2072.

  26. Neil A. Lewis, “Impasse on Judicial Pick Defies Quick Resolution,” New York Times, March 30, 2003.

  27. David Firestone, “Frist Forsakes Deal Making to Focus on Party Principles,” New York Times, March 13, 2003.

  28. Ibid.

  29. Joan Biskupic, “Democrats: ‘We Will Not Relent on Filibuster,’” USA Today, February 14, 2003.

  30. Antonia Hernández, “Latino Would Set Back Latinos,” Los Angeles Times, February 5, 2003.

  31. Linda Chavez, “Hispanic Like Me?: Racial Games, Racial Tags—the Way the Left Plays,” National Review, March 10, 2003.

  32. Miguel Estrada to President George W. Bush, September 4, 2003. His wife had a series of health problems, and in November 2004, a year after Estrada withdrew his name, she died of an accidental overdose of sleeping pills.

  33. Carlos D. Conde, “The Saga of Miguel Estrada,” Hispanic Outlook in Higher Education, June 30, 2003.

  34. In an October 7, 2005, interview with MSNBC’s Tucker Carlson, Robert Bork said Miers had “no experience with constitutional law whatever” and termed her nomination a “slap in the face” to conservatives.

  35. Dorsey v. United States, 567 U.S. ___ (2012).

  36. Lindsey Graham, July 13, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States,” before the Senate Judiciary Committee, July 13–16, 2009, Washington, D.C. Author attended the hearings; transcript available through multiple sources, including U.S. Government Printing Office.

  37. Lindsey Graham, Tom Coburn, Elena Kagan testimony, June 29 and 30, 2010, “The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States,” before the Senate Judiciary Committee, Washington, D.C. Author attended the hearings; transcript available through multiple sources, including U.S. Government Printing Office.

  7. THE WISE LATINA

  1. The speech was reprinted in “A Latina Judge’s Voice,” Berkeley La Raza Law Journal 13, no. 88 (2002).

  2. Radio host Rush Limbaugh called Sotomayor a “reverse racist.” See also Gingrich’s comment in Jonathan Weisman and Naftali Bendavid, “Battle Over Sotomayor Heats Up,” Wall Street Journal, May 28, 2009.

  3. Sotomayor articulated her general support for a kind of “legal realism” in a 1996 lecture at Suffolk University Law School in Boston when she said, “Lawyers do themselves a disservice by acceding to the public myth that law can be certain and stable.” Sonia Sotomayor and Nicole A. Gordon, “Returning Majesty to the Law and Politics: A Modern Approach,” Suffolk University Law Review, 1996.

  4. For context on strife arising from Hispanics in the labor force and ballot initiatives against affirmative action, see Fraga et al., Latino Lives in America, 3.

  5. Sotomayor, “A Latina Judge’s Voice.”

  6. Author interview with Rachel Moran, August 21, 2013.

  7. Justices Sandra Day O’Connor and Ruth Bader Ginsburg cited Coyne. See Jennifer M. Fitzenberger, “Obituary: M. Jeanne Coyne, Second Woman on State Supreme Court,” Minneapolis Star Tribune, August 6, 1998.

  8. Sotomayor,”Women in the Judiciary,” Panel Presentation, the 40th National Conference of Law Reviews, March 17, 1994, Condado Plaza Hotel, Puerto Rico; copy of speech in Senate Judiciary Committee 2009 nomination file.

  9. Almanac of the Federal Judiciary, vol. 2 (2001) and vol. 2 (2009).

  10. American Bar Association report submitted in testimony to the Senate Judiciary Committee by Kim Askew, chairman of the ABA Standing Committee on the Federal Judiciary, July 16, 2009.

  11. Sonia Sotomayor appearance at Cornell University Law School, October 8, 2008.

  12. Sonia Sotomayor statement, July 14, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States,” before the Senate Judiciary Committee, July 13–16, 2009, Washington, D.C. Author attended the hearings; transcript available through multiple sources including U.S. Government Printing Office.

  13. Jeff Sessions statement, July 14, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States.”

  14. “On Sonia Sotomayor: Words from ‘Wise Latinas,’” Los Angeles Times, July 17, 2009.

  8. RACE AND THE RICCI CASE

  1. William Kaempffer, “U.S. Court Tosses Out Case Over City Jobs,” New Haven Register; appeared online at nhregsiter.com, February 15, 2008.

  2. Author interview with Karen Torre, August 5, 2013.

  3. Neither Cabranes nor Sotomayor would discuss their respecti
ve roles in the Ricci case.

  4. The disparate-impact doctrine was not explicitly written into Title VII at the start. The Supreme Court recognized the doctrine in Griggs v. Duke Power Co., 401 U.S. 424 (1971), then went on to alternately expand and contract disparate-impact theory, leading Congress to codify disparate-impact remedies in the Civil Rights Act of 1991.

  5. Parents Involved v. Seattle School District No. 1, 551 U.S. 701, 748 (2007).

  6. Ginsburg dissenting opinion in Ricci v. DeStefano, 557 U.S. 557 (2009).

  7. Ricci v. DeStefano, 554 F.Supp.2d 142 (D. Conn. 2006), district court opinion, September 28, 2006.

  8. Frank Ricci and Benjamin Vargas statements, July 16, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States,” before the Senate Judiciary Committee, July 13–16, 2009, Washington, D.C. Author attended the hearings; transcript available through multiple sources including U.S. Government Printing Office.

  9. Ricci v. DeStefano, 554 F.Supp. 2d 142 (D.Conn. 2006).

  10. Sotomayor, My Beloved World, 283.

  11. Oral arguments in Ricci v. DeStefano, U.S. Court of Appeals for the Second Circuit, December 9, 2007; available at www.c-span.org/video/?287320-1/-ricci-v-destefano-court-appeals-oral-argument.

  12. Author interview with Judge Rosemary Pooler, February 6, 2014.

  13. A Congressional Research Service June 19, 2009, report stated: “Perhaps the most consistent characteristics of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as overstepping its judicial role.” When the American Bar Association issued a report on her record on July 16, 2009, it concluded, “Her opinions are well-reasoned, well-organized, meticulously researched, easily understandable, and demonstrate a profound command of the law, even when sophisticated and complicated factual and legal issues are presented.”

  14. American Bar Association report submitted in testimony to the Senate Judiciary Committee by Kim Askew, chairman of the ABA Standing Committee on the Federal Judiciary, July 16, 2009.

  15. Silverman v. Major League Baseball Players Relations Committee, 880 F.Supp. 246 (1995).

  16. Larry Milson, “Fans Flock to Spring Training Game as All Is Forgiven,” The Globe and Mail, April 14, 1995; Greg B. Smith, “Heavy Hitter on Bench,” New York Daily News, April 1, 1995.

  17. Sonia Sotomayor, panelist at “Women in the Judiciary: A Woman’s View from the Bench,” a Practising Law Institute program broadcast live via satellite on June 9, 1994. Copy of program supplied to author by PLI.

  18. Sotomayor’s comments at a Duke University School of Law event were made with some levity: “All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law. I know. I’m not promoting it. I’m not advocating it.” Available at www.youtube.com/watch?v=OfC99LrrM2Q.

  19. Ricci v. DeStefano, No. 06-4996-cv, February 15, 2008. 264 Fed.Appx. 106 (2d Cir. 2008).

  20. Lawyer Torre, representing the firefighters, did not know the Second Circuit clerk had placed a hold on the issuance of the mandate in the case, effectively blocking the Sotomayor panel’s order from taking effect. She was plowing ahead with her petition to the Supreme Court.

  21. Ricci v. DeStefano, 530 F.3d 88; Second Circuit judges’ order and opinions issued June 9, 12, and 13, 2008.

  22. Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009). The case involved the “bailout” provision of the Voting Rights Act. In the end, the Supreme Court ruled that the utility district was entitled to be considered for the bailout provision. Lawyer Coleman died in a plane crash in 2010. Chuck Lindell, “Plane Crash Kills Noted Lawyer,” Austin American-Statesman, November 25, 2010.

  23. Ricci v. DeStefano, Nos. 07-1428 and 07-328, brief for the United States as amicus curiae supporting vacatur and remand, February 2009.

  24. Author attended oral arguments in Ricci v. DeStefano on April 22, 2009; transcript on Supreme Court website at www.supremecourt.gov/oral_arguments/argument_transcripts/07-1428.pdf.

  25. Ibid.

  26. Ricci v. DeStefano, 557 U.S. 557 (2009). In a concurring opinion, Justice Scalia noted that the Court did not reach the question “Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”

  27. Sotomayor statement, July 14, 2009. “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States.”

  28. Ibid.

  29. Author interview with Gregory Craig, January 22, 2013.

  30. Frank Ricci statement, July 16, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States.”

  9. THE PRESIDENT’S CHOICE

  1. Author interview with Gregory Craig, January 22 and October 4, 2013. Craig spoke on the record. Other Obama officials filled in details of the nomination process but declined to speak on the record.

  2. Obama, Audacity of Hope, 84–86.

  3. Ibid., 79.

  4. Pew Research Center Hispanic Trends Project, November 5, 2008.

  5. John O’Connor died from complications of Alzheimer’s disease on November 11, 2009.

  6. Joan Biskupic, “Ginsburg Plans to Stay on High Court for Years, Despite Cancer,” USA Today, March 5, 2009.

  7. Joan Biskupic, “Ginsburg: Court Needs Another Woman,” USA Today, May 5, 2009.

  8. Sotomayor, My Beloved World, 237–38.

  9. Author interview with Carlos Ortiz, November 19, 2010.

  10. Ibid.

  11. Sotomayor’s fellow judges on the Second Circuit made clear early and often that they believed she would be an excellent candidate for a Supreme Court opening. Judge Robert Katzmann, whom Sotomayor said she regarded as a brother, said he tried to boost her chances of selection at a separate meeting with Craig, in December 2008, before the Obama administration was in the White House.

  12. Author interview with Judge Guido Calabresi, September 30, 2013.

  13. Author interview with Gregory Craig, January 22, 2013.

  14. Assessments in the Almanac of the Federal Judiciary, vol. 2, 2009.

  15. Author interview with Barrington Parker, April 17, 2014.

  16. Edwin Meese, Leonard Leo, Edward Whelan, and Wendy Long to Senate Judiciary Committee Republicans, January 22, 2009.

  17. Hinrichs v. Bosma, 2005 WL 3544300, *7 (S.D. Ind. 2005).

  18. Transcript of President Obama’s remarks on Justice Souter, May 1, 2009. www.whitehouse.gov/blog/2009/05/01/presidents-remarks-justice-souter.

  19. Sotomayor Senate questionnaire and supplemental materials submitted to Senate Judiciary Committee, June 2009.

  20. Diane P. Wood, “Madison Lecture: Our 18th Century Constitution in the 21st Century World,” New York University Law Review 80, no. 1079 (2005): 1107.

  21. Tribe letter to Obama, May 4, 2009. Made public by Edward Whelan, “Tribe to Obama: Sotomayor Is ‘Not Nearly as Smart as She Seems to Think She Is,’” National Review Online, October 28, 2010; available at www.nationalreview.com/bench-memos/251301/tribe-obama-sotomayor-not-nearly-smart-she-seems-think-she-ed-whelan. Letter pdf at www.eppc.org/docLib/20101028_tribeletter.pdf.

  22. Charlie Savage, “Leaked: Obama Mentor’s Blunt Advice on Court Choices,” New York Times website, October 28, 2010; additional comments from Tribe in e-mail to author, April 16, 2014.

  23. Jeffrey Rosen, “The Case Against Sotomayor,” The New Republic online edition, May 4, 2009.
r />   24. Adam Serwer, “What’s Jeffrey Rosen’s Beef with Sonia Sotomayor?” American Prospect, May 4, 2009; Rebecca Traister, “Her Honor: Domineering and Dumb,” Salon.com, May 4, 2009.

  25. Traister, “Her Honor.”

  26. James Warren, “Sonia Sotomayor on Dating, Deciding, and Being the Newest Supreme Court Justice,” The Atlantic, March 7, 2011; available at www.theatlantic.com/politics/archive/2011/03/sonia-sotomayor-on-dating-deciding-and-being-the-newest-supreme-court-justice/72168/.

  27. Sonia Sotomayor, Smithsonian Associates Evening Lecture, January 8, 2014, George Washington University, Washington, D.C.

  28. Alter, The Promise, 292–93.

  29. Sotomayor interview, C-SPAN, September 16, 2009.

  30. Transcript of President Obama’s and Judge Sotomayor’s remarks on May 26, 2009; provided by the White House Office of the Press Secretary.

  31. Ibid.

  32. Dana Milbank, “But Will She Suit Up with the Washington Nine?” Washington Post, May 27, 2009.

  33. Eli Saslow, “Sotomayor Nomination Unites Hispanics,” Washington Post, May 27, 2009.

  34. Author interview with Ronald Klain, July 26, 2012.

  10. STANDING OUT

  1. Justice O’Connor was a conservative centrist who navigated the middle of the Court and resisted being called a “feminist” and being identified with such causes as abortion rights. Justice Thomas separated himself from the African American identity Justice Marshall fostered. In a 2001 appearance before the conservative Washington-based American Enterprise Institute, Thomas noted that early in his career he was regarded as a heretic for questioning the value of affirmative action, welfare, and school busing. “It became clear in rather short order that on the very difficult issues such as race there was no real debate or honest discussion,” he said. “Those who raised questions that suggested doubt about popular policies were subjected to intimidation. Debate was not permitted. Orthodoxy was enforced. When whites questioned the conventional wisdom on these issues, it was considered bad form; when blacks did so, it was treason.”

  2. See, e.g., “The Genesis and Needs of an Ethnic Identity,” keynote speech October 24, 1998, at Connecticut Hispanic Bar Association dinner, New Haven; copy in Senate Judiciary Committee 2009 nomination file.