“The Luttig card may work for us,” Gale reported back to Moynihan on June 7, 1991. “Jeff Peck advised me that … Attorney General Thornburgh called Senator Biden and made a personal appeal to move the Luttig nomination quickly. Biden’s reply was, in essence, ‘why should I expedite a Justice Department candidate when Justice has been sitting on two of Moynihan’s recommendations and won’t even return his staff’s phone calls?’” Attuned to the trading of favors on Capitol Hill, Gale told Moynihan, “You may want to call Biden to thank him.”22
The maneuvering occurred behind the scenes and was not the grist of daily news reports. Yet Sotomayor absorbed its meaning. A judicial nomination, particularly of a minority candidate, did not move without some pushing and shoving. She was also seeing how nominees could get caught up in situations that had nothing to do with them. Luttig’s nomination for a Richmond-based U.S. appeals court suddenly depended on what happened to a Puerto Rican woman in New York. They were joined, for the time being, because of senators’ prerogatives.
Around this time, Attorney General Dick Thornburgh, who oversaw judicial nominations for President Bush, lamented that the process combined “the intricacies of chess and the audacity of old-fashioned hardball.”23 This was part of the age-old politicking over court nominations. But minorities and women, traditionally on the outside looking in, faced greater resistance. The “old boys’ club” that controlled the process in the 1990s would continue to flex its muscles as Sotomayor’s candidacy moved along.
* * *
As Moynihan pressured the Bush administration to act on his recommendation of Sotomayor, a retirement at the Supreme Court reignited the debate over the racial makeup of the nation’s highest court. Thurgood Marshall, the first African American justice, announced on June 27, 1991, that he would retire. A few days before his eighty-third birthday, Marshall wrote in a letter to President Bush that “advancing age and medical condition” were forcing him to step down. Marshall was even blunter in a news conference with reporters: “What’s wrong with me?… I’m old! I’m getting old and coming apart.”24
Marshall’s face was craggy, and his belly pushed out against his white shirt and dark suspenders. He had served as a justice for twenty-four years and watched in frustration as the Court moved to the right in the 1970s and 1980s with Republican appointees who curtailed racial remedies and scaled back defendants’ rights. Two days before he announced his retirement, Marshall passionately dissented from a decision that overturned two Supreme Court precedents and allowed the use of “victim impact” statements in death penalty cases, which tended to diminish juror leniency for criminal defendants.25
The decision to retire had been difficult for Marshall. A legend in the civil rights movement and the last voice of true liberalism on the Supreme Court, he was not eager to give a Republican president the opportunity to name his successor. But he was sick and weary, and he simply believed his time on the Court was up. At the news conference the day of his retirement, Marshall said that President Bush should strive for the best appointee and that race should not be an overriding factor. He said he did not want the president to select “the wrong Negro” or say “I’m picking him because he is a Negro.”26
Marshall had put his finger on a recurring issue of how a possible nominee’s minority status should affect the selection calculation: Should it be incidental or determinative? And would such an emphasis on race diminish the nominee’s credentials?
Immediately after receiving Marshall’s retirement letter, President Bush interviewed Clarence Thomas, an African American who had served as chairman of the Equal Employment Opportunity Commission (EEOC) under Ronald Reagan and been named by Bush in 1989 to a powerful federal appeals court in Washington, D.C.
The president liked Thomas, who had a friendly demeanor and a booming laugh. Bush found Thomas’s personal story of poverty in segregated Georgia compelling. Still, Bush was concerned that Thomas, at forty-three, had served on the U.S. Court of Appeals for the District of Columbia Circuit for less than two years and might be perceived as inexperienced. Thomas was also controversial because his legal views were exactly the opposite of Marshall’s. Thomas opposed programs that encouraged hiring goals or preferences for minorities—programs that had pushed him and Sotomayor up the ladder in Ivy League schools.
Still, the Republican administration had few options. “For that vacancy, it was a very short list,” recalled Attorney General Thornburgh. “We knew, even though it was not articulated, that the president wanted a minority. The odds-on choice was Clarence Thomas.”27
Bush, who before his election had lived in Houston, asked his top lawyers to look for any possible Hispanic candidates. So in 1991, when the Texas-based judge Emilio Garza, the son of Mexican immigrants, was interviewed for the Marshall vacancy, he became the first Hispanic seriously considered for the Supreme Court.
A graduate of the University of Notre Dame and the University of Texas School of Law who had served in the U.S. Marines for three years, Garza was a bachelor with a quiet, studious demeanor. He had been appointed by President Reagan as a trial judge in 1988, and in 1991 Bush had elevated him to the U.S. Court of Appeals for the Fifth Circuit, covering cases from Texas, Louisiana, and Mississippi. His formal commission to the Fifth Circuit was signed in May, barely two months before he, then forty-three, received the call to fly from San Antonio to Washington to interview for Marshall’s position.
During the interview with Attorney General Thornburgh and White House counsel Boyden Gray, Garza seemed unprepared for the Supreme Court and the Senate confirmation process. “We felt that he needed more seasoning,” Thornburgh said, observing that Gray had been pushing hard for Clarence Thomas and that anyone else would have had to stand out to overcome that preference.28
News accounts reported that some top aides to President Bush liked the idea of a Hispanic nominee “on political grounds,” and that José Cabranes, then a federal district court judge in Connecticut, was on the administration’s list of possible nominees.29 But no Bush aides reached out to Cabranes, an appointee of Democratic president Carter, for background information or to set up an interview. Thornburgh said later that Cabranes would not have been seriously considered by the GOP administration. “He wouldn’t meet our goal for conservatism,” Thornburgh said.30
There was a natural awkwardness in naming Thomas to succeed Marshall: the black seat going to the only black Republican who would have been considered. White House aides were obviously conflicted. The Washington Post reported that an administration official said Thomas prevailed over Judge Garza because of a “semiconscious sense … this was a black man to be replaced.” The Post wrote that the official (unnamed in the story) “then immediately backpedaled, saying: ‘Strike that. He was the best person.’”31
On July 1 President Bush announced that he had chosen Thomas to succeed Marshall. He called Thomas “the best person at the right time.”32 When reporters questioned how Thomas’s race affected the decision, Bush said, “The fact that he is black and a minority has nothing to do with this sense that he is the best qualified at this time. I kept my word to the American people and to the Senate by picking the best man for the job on the merits. And the fact that he’s a minority, so much the better.” Those presidential references to “best person” and “best man” would exacerbate public cynicism about the process and preoccupy Thomas for years. Writing in his 2007 memoir, Thomas said that five years after his Senate confirmation he asked Boyden Gray, Bush’s White House counsel, “Was I picked because I was black?” Thomas suggested that he believed Gray’s answer was no. Thomas wrote that he was told that his “race had actually worked against” him because the administration did not want to be perceived as picking someone simply for a “black” seat.33
Civil rights groups, including those dominated by Hispanics, were torn over whether to support Thomas, a man who had experienced the discrimination they were fighting but who had spurned their cause in his professional work. Thoma
s had endured a difficult childhood. His father had abandoned the family, and his mother had few resources to support her three children. After their home in the hamlet of Pin Point, Georgia, burned down, five-year-old Clarence was sent to live with his grandfather, a harsh taskmaster, in Savannah. Thomas often recalled episodes of racial hatred and discrimination from his youth, including what happened on the night of April 4, 1968, when the Reverend Martin Luther King, Jr., was assassinated. Thomas heard a white classmate at the seminary he was attending express great glee at the killing. Thomas said he was losing his interest in the priesthood at the time, and the incident helped prompt him to leave the seminary and transfer to Holy Cross College.
John Lewis, a Georgia Democrat in the U.S. House of Representatives and a respected civil rights leader, opposed Thomas, asserting that a beneficiary of the civil rights movement was now undermining its goals. “Judge Thomas stands poised to deny to others the kind of opportunities that he has enjoyed,” said Lewis, who as a young activist was beaten bloody during a March 1965 attack by state troopers in Selma, Alabama. “Of course, I have heard the argument that Clarence Thomas cannot ‘forget’ where he has come from and, therefore, he will be sensitive to the plight of the disadvantaged. After all, he grew up poor and fatherless in segregated Georgia. My response to that argument is: Look at his record. He has forgotten before.”34
Just as senators were preparing to vote on the Thomas nomination, Anita Hill, a former employee of Thomas’s at the EEOC and the Department of Education, came forward and claimed that he had sexually harassed her. She alleged that he had made sexually charged comments, including some mentions of breasts and penises, which led shocked senators to delay a vote on his nomination and reopen the confirmation hearings. Thomas angrily denied Hill’s claims and accused the Senate Judiciary Committee of “a high-tech lynching.” He survived, but with the closest Senate vote in more than a century, 52–48. All the Democrats who voted for him were from the South, the opposite of what had happened in 1967, when Southern Democratic senators opposed Marshall. By 1991, blacks had become a core constituency of Southern senators, and Democrats feared alienating them with a vote against Thomas.
* * *
During the fight over Thomas’s confirmation, most lower court nominations stalled—but not that of GOP favorite Michael Luttig. Moynihan released his “hold” when the Bush administration promised a second round of Justice Department interviews for Sonia Sotomayor. In late July 1991, after Thomas had been nominated but before the confirmation hearings began, the Senate confirmed Luttig, and he was commissioned on August 2. Luttig temporarily remained with administration lawyers behind the scenes, helping to prepare Thomas for his Supreme Court confirmation hearings.35
Moynihan vigorously opposed Thomas and was one of the Democrats who insisted on postponing Senate action until after Anita Hill testified. But he also continued to press on Sotomayor’s behalf. She could not have asked for a more effective political godfather. “He wasn’t the typical horse trader,” recalled Moynihan’s chief of staff Robert Peck. “He didn’t spend a lot of time on the floor. He didn’t have a lot of friends in the Senate. But if he wanted something … he was prepared to keep banging” on it.36 The New York Democrat hounded the administration, fellow senators, and his friends in the press on Sotomayor’s behalf. Moynihan wrote on August 8, 1991, to Arthur O. “Punch” Sulzberger, publisher of The New York Times, “It is absolutely the case that the people we send over to Justice are treated almost as suspects … It is degrading. And I wonder that most are willing to go through with it. Out of loyalty I like to think to the committee of New York lawyers that chose them.” He complained that Sonia Sotomayor and Deborah Batts “were given the deep freeze.”37
Sotomayor’s nomination moved forward after William Barr succeeded Thornburgh as attorney general in late summer 1991.38 For extra measure, Moynihan put another “hold” on two other GOP favorites for federal courts of appeals, prompting White House counsel Gray to write to Bush asking him to sign a nomination for Sotomayor—but with a caveat. Gray made sure that Bush knew that Moynihan had been blocking action on the appeals court nominations “to extract a district court judge from us,” and he advised the president to sign the Sotomayor nomination but hold off making it official until the administration had gotten word that the two appeals court nominees were confirmed.39
The deal satisfied both sides, and Bush nominated Sotomayor on November 27, 1991. For a district court nominee in the 1990s, the hardest part was over. Everything else would be fairly routine. After the White House had submitted her name to the American Bar Association earlier in 1991 for an evaluation, Sotomayor received a “Qualified” rating. (That was above the rarely given “Not Qualified” rating, but not the top “Well Qualified” assessment she would receive in 1997 and 2009 for her respective Second Circuit and Supreme Court nominations.)40
When the Senate Judiciary Committee held a hearing on her district court nomination in June 1992, Sotomayor was more than ready. Accompanying her were her mother, Celina; her mother’s future husband, Omar Lopez; Sotomayor’s brother, Juan, a physician, and his wife and children; a college roommate; and two other friends.
Democratic senator Edward M. Kennedy of Massachusetts presided over the hearing for Sotomayor and two other nominees, also women. It was a first—three women at one hearing—Kennedy said, reminding the audience that in the early 1990s most judicial nominees were men.41
New York senators Moynihan and D’Amato appeared before the committee on Sotomayor’s behalf. Moynihan introduced her, beginning with her academic credentials from Princeton and Yale. When Senator D’Amato spoke, he referred to her “great, great story of what America can be and is about.” There followed an exchange with senior Republican committee member Strom Thurmond, of South Carolina, that revealed the “good ol’ boy” tone that permeated hearings:
“Senator, I want to congratulate you on recommending such outstanding ladies,” Thurmond said.
“Thank you very much,” D’Amato responded.
“I have always known you were a ladies’ man, anyway,” Thurmond added.
“I’m going to leave that alone,” Kennedy said to laughter in the room.
“That is not in the record, I hope,” D’Amato quipped.42
When Senator Kennedy began the questioning, he said he was impressed by Sotomayor’s activities on behalf of the disadvantaged. She responded by talking about her twelve-year membership on the board of the Puerto Rican Legal Defense and Education Fund and its work promoting bilingual education in the public school system. “I … believe that those of us who have opportunities in this life must give them back to those who have less,” she said. The following week, on June 11, 1992, the Senate Judiciary Committee recommended her nomination to the full Senate. On August 11, eighteen months after Moynihan had recommended her, Sotomayor was confirmed and became the first Latina on a federal court in New York.
Sotomayor’s confirmation was a testament to her determination and serendipitous connections. In the 1970s and 1980s she was one of the few Hispanic women within the sphere of such New York power brokers as District Attorney Morgenthau. She earned an appointment to the New York City Campaign Finance Board and witnessed big-city politics, giving her the kind of insight Sandra Day O’Connor developed in statehouse politics in Arizona before being named a state court judge and then a Supreme Court justice in 1981.
When Sotomayor moved from Morgenthau’s office to a firm focused on commercial law litigation, she knew it would round out her experience. But, equally important for her goal of a judgeship, that move connected her with partner Botwinik, a friend of the chair of Moynihan’s judicial screening committee, when the drive was on for minority and women candidates.
Nearly two decades later President Obama would use this appointment to assert, “It’s a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the U.S. District Court by a Republican President, George H. W. Bush.”43 The
truth was that the Bush administration really did not want her. She was but one part of multiple deals engineered by Moynihan.
None of the politicking of this first judicial nomination was lost on the street-smart Sotomayor. Less than two years after she was sworn in as a district court judge, she told a conference focused on women in the judiciary, “It is a political appointment. [People] have to make themselves known. You simply do not put in an application.”44
FIVE
A President and Politics
When Sonia Sotomayor was sworn in as a federal trial judge for the Southern District of New York in the fall of 1992, she asked longtime mentor José Cabranes to administer the oath. It was a role without fanfare. As a federal judge in Connecticut, Cabranes, in fact, had to obtain special court permission to wear the robe and act as a judge in New York’s Southern District. He was warned to read just the oath and not say anything more at the district investitures, which were known for their brevity. After a clerk read the district court commission and Cabranes administered the oath, the chief judge asked Sotomayor to sign a piece of paper attesting to her pledge. As protocol dictated, she said, “It is done.”
The whole ceremony took less than ten minutes, but Cabranes would not have declined the invitation of Sotomayor, who had continued to tap him for advice as she had run the gauntlet of politics necessary to win President George H. W. Bush’s nomination and the Senate confirmation. After a reception, Sotomayor flew to New Orleans for a weekend with girlfriends.
Within two years of that first appointment for Sotomayor, Cabranes appeared to be on deck for a higher court. But he would not find a ready network of political support. And he would face hostility from advocacy groups that would ultimately shift toward Sotomayor.
Breaking In: The Rise of Sonia Sotomayor Page 8