Breaking In: The Rise of Sonia Sotomayor

by Joan Biskupic

  40. Sonia Sotomayor appearance in Denver, August 26, 2010, “Diversity and the Legal Profession.”

  41. Facts of case drawn from University of California Regents v. Bakke, 438 U.S. 265 (1978). See also Don Speich, “Former UC Davis Official Backed ‘Reverse Bias’ Suit: Ex-Admissions Aide Says He Thought Special Minority Enrollment Program Was Unconstitutional,” Los Angeles Times, February 4, 1977.

  42. David S. Saxon, “UC’s Minorities Plan Serves Public Needs,” Los Angeles Times, January 23, 1977.

  43. Powell opinion in Regents of the University of California v. Bakke.

  44. Marshall dissenting opinion in Regents of the University of California v. Bakke.

  45. The University of California at Davis subsequently enrolled Allan Bakke, and he graduated from the medical school in 1982.

  46. Sotomayor, panelist at “Women in the Judiciary: A Woman’s View from the Bench,” 1994.

  47. Sotomayor, My Beloved World, 192.

  48. Ibid., 253–54.

  49. Morgenthau continually faced complaints that his office was not doing enough to bring in minority prosecutors. When a claim arose in 1990, he said, “When I became District Attorney in 1975, there were 11 minority assistant district attorneys. As of this class … in August, there are 98 or 99, a tremendous increase.” He also told the Times that he had “an affirmative hiring policy in this office, which is reflected in our statistics, and I have every intention of continuing that.” Nadine Brozan, “Group of Blacks Sees Hiring Bias By Morgenthau,” New York Times, August 2, 1990. See also M. A. Farber, “As He Seeks a 4th Term, Morgenthau Confronts First Sustained Criticism,” New York Times, June 17, 1985.

  50. Jonathan Barzilay, “The D.A.’s Right Arms,” New York Times, November 27, 1983.

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

  52. Benjamin Weiser and William K. Rashbaum, “Sotomayor Is Recalled as a Driven Rookie Prosecutor,” New York Times, June 7, 2009; Robert Morgenthau testimony before the Senate Judiciary Committee, July 16, 2009.

  53. Barzilay, “The D.A.’s Right Arms.”

  54. Noonan, who would earn his Ph.D. and a J.D., became a lawyer specializing in patents and other intellectual property. When Sotomayor was nominated to be a justice in May 2009, the New York Daily News quoted Noonan saying, “She’ll be a great judge.” Michael Saul, “Never Lost Touch with Her Roots,” New York Daily News, May 27, 2009.

  55. 1986 interview “Sonia Sotomayor: Then and Now,” Good Morning America, ABC News, uploaded July 18, 2009, available at www.youtube.com/watch?v=i6eikaV9IuE.

  56. Sotomayor, My Beloved World, 238.

  57. Ibid., 261.

  58. It was founded by three officials of Mayor Lindsay’s administration who had witnessed the social and legal problems affecting Puerto Ricans: Jorge Batista, Victor Marrero, and Cesar Perales.

  59. Sotomayor, My Beloved World, 218.

  4. CHANCE AND CONNECTIONS

  1. Leonard Garment, a former counselor to Republican president Richard Nixon and longtime Moynihan friend, suggested the judicial screening committee, according to Richard K. Eaton, “The Third Branch,” in Daniel Patrick Moynihan, edited by Robert A. Katzmann.

  2. Ibid. Noted in November 5, 1992, Moynihan news release cited by Eaton.

  3. Transcript of Induction Proceedings for Judge Sonia Sotomayor, U.S. Court of Appeals for the Second Circuit, New York, November 6, 1998.

  4. Author interview with Judah Gribetz, January 27, 2012.

  5. Author interview with Robert Peck, January 5, 2012.

  6. Glazer and Moynihan, Beyond the Melting Pot, xlvi.

  7. Author interview with Robert Peck, January 5, 2012.

  8. Author interview with Judah Gribetz, January 27, 2012.

  9. Wayne King, “Now, No Hispanic Candidates for Federal Bench in New York,” New York Times, February 15, 1991.

  10. Hodgson, The Gentleman from New York, 9.

  11. Linda Charlton, “21 Rights Leaders Rebut Moynihan; Assert ‘Benign Neglect’ Idea Is ‘Symptomatic of Effort to Wipe Out Gains,’” New York Times, March 6, 1970.

  12. James Traub, “Daniel Patrick Moynihan, Liberal? Conservative? Or Just Pat?” New York Times, September 16, 1990.

  13. Moynihan to King, March 4, 1991, Moynihan Papers, Library of Congress. See also Wayne King, “3 Recommended for U.S. Court; One Is Hispanic,” New York Times, March 2, 1991.

  14. Moynihan to Danforth, October 4, 1991, Moynihan Papers, Library of Congress.

  15. “Debriefing After Justice Interviews”; Joe Gale notes from Sotomayor meeting, April 15, 1991, Moynihan Papers, Library of Congress.

  16. Sotomayor to Gale, March 1, 1991, Moynihan Papers, Library of Congress.

  17. “Impact of the Criminal Justice System on Hispanics,” by John Carro; copy in Moynihan Papers, Library of Congress.

  18. Both Carro and Martínez were suggested by Latino organizations in the mid-1990s, when Bill Clinton was in office.

  19. Carro to Moynihan, Janaury 25, 1991, Moynihan Papers, Library of Congress.

  20. Moynihan to Carro, February 4, 1991, Moynihan Papers, Library of Congress.

  21. Jeff Peck was a cousin of Robert Peck, Moynihan’s chief of staff.

  22. Gale to Moynihan, June 7, 1991, Moynihan Papers, Library of Congress.

  23. Joan Biskupic, “Bush Lags in Appointments to the Federal Judiciary,” Congressional Quarterly Weekly Report, January 6, 1990.

  24. Ruth Marcus, “Plain-Spoken Marshall Spars with Reporters,” Washington Post, June 29, 1991.

  25. Marshall denounced the conservative majority for turning back constitutional rights, particularly those protecting defendants, and predicted that “tomorrow’s victims [of adverse Court rulings] may be minorities, women or the indigent.” Marshall accused the five-justice majority that prevailed in the death penalty case Payne v. Tennessee of being ready to “squander the authority and legitimacy of this court as a protector of the powerless.” Payne v. Tennessee, 501 U.S. 808 (1991).

  26. Karen Tumulty, “Marshall Says Bush Should Not Use Race as ‘Excuse’ for Picking Wrong Successor,” Los Angeles Times, June 29, 1991.

  27. Author interview with Dick Thornburgh, April 18, 2011. The suggestion in news articles of Cabranes as a Bush possibility, however, helped lay the ground for liberals’ suspicions of Cabranes when Democratic president Bill Clinton began considering Supreme Court candidates two years later.

  28. Gray was a longtime friend of Thomas’s who would insist decades later that one of George H. W. Bush’s greatest legacies was the appointment of Thomas.

  29. Ann Devroy and Sharon LaFraniere, “Danforth’s Backing Was Key to President’s Choice of Thomas,” Washington Post, July 3, 1991; Michael Wines, “Bush Says List for Marshall Successor Is Short,” New York Times, June 29, 1991.

  30. Author interview with Dick Thornburgh, April 18, 2011.

  31. John E. Yang and Sharon LaFraniere, “Bush Picks Thomas for Supreme Court: Appeals Court Judge Served as EEOC Chairman in Reagan Administration,” Washington Post, July 2, 1991.

  32. President George H. W. Bush news conference, July 1, 1991; available at www.presidency.ucsb.edu/ws/?pid=29651.

  33. Thomas, My Grandfather’s Son, 216.

  34. John Lewis, “He’s Forgotten Where He’s From,” Los Angeles Times, August 12, 1991.

  35. Andrew Rosenthal, “The Thomas Nomination; White House Role in Thomas Defense,” New York Times, October 14, 1991; Anthony Lewis, “Abroad at Home; Slash and Burn,” New York Times, October 18, 1991; “Thomas Role Questioned,” Washington Post, October 22, 1991.

  36. Author interview with Robert Peck, January 5, 2012.

  37. Moynihan to Sulzberger, August 8, 1991, Moynihan Papers, Library of Congress.

  38. Batts and Trager were not nominated or confirmed until Democrat Bill Clinton took office in 1993.

  39. Gray to Bush, November 27, 1991, George H. W. Bush Presidential Archive.

  40. Testimony of Kim
J. Askew and American Bar Association report to the Senate Judiciary Committee, July 16, 2009.

  41. Committee hearings for district court nominees were generally low-key, routine events, which is why three candidates could testify in a single sitting.

  42. Transcript of Senate Judiciary Committee hearing, June 4, 1992, for Sonia Sotomayor and other U.S. district court nominees; available at www.loc.gov/law/find/nominations/sotomayor/shrg105-205pt9.pdf.

  43. President Obama, May 26, 2009; www.whitehouse.gov/the_press_office/Remarks-by-the-President-in-Nominating-Judge-Sonia-Sotomayor-to-the-United-States-Supreme-Court.

  44. 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.

  5. A PRESIDENT AND POLITICS

  1. Biskupic, Sandra Day O’Connor, 71–72.

  2. John P. Schmal, “Electing the President: The Latino Electorate (1960–2000),” La Prensa San Diego, April 30, 2004, http://laprensa-sandiego.org/archive/april30-04/elect.htm. See also Roper Center Public Opinion Research Archives, U.S. Elections, How Groups Voted in 1992, www.ropercenter.uconn.edu/elections/how_groups_voted/voted_92.html.

  3. Hutchinson, The Man Who Once Was Whizzer White, 277–281.

  4. Byron R. White letter to President Clinton, March 19, 1993.

  5. Paul M. Barrett and David Rogers, “Senate Support for Zoe Baird Is Precarious,” Wall Street Journal, January 22, 1993 (describing Baird’s employing of undocumented workers in her household); Adam Nagourney, “Clinton Missteps Again,” USA Today, February 8, 1993 (detailing Wood’s alleged failure to disclose to the White House that she had hired undocumented workers).

  6. Clinton later said that her positions conflicted with his opposition to quotas and a “cumulative voting” approach that intended to inflate the chances of minority candidates to win office. Clinton, My Life, 523.

  7. Stephanopoulos, All Too Human, 166–67.

  8. Dolores S. Atencio, “The Making of an American Justice: The HNBA’s Quest for the First Hispanic Supreme Court Justice,” Hispanic National Bar Association Journal of Law and Policy 2, issue 1 (Summer 2010).

  9. Ibid.

  10. Author interview with Carlos Ortiz, September 16, 2010. See also Atencio, “The Making of an American Justice.”

  11. Richard Berke, “Judge in Boston Is Called Likely for High Court,” New York Times, June 11, 1993.

  12. Author interview with Bernard Nussbaum, February 10, 2012.

  13. She said women’s access to abortion would have been better grounded in Fourteenth Amendment equality rights. “The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures,” Ginsburg wrote in the law review article. “In place of the trend ‘toward liberalization of abortion statutes’ noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures for poor women’s abortions.” From “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review 63, no. 2 (January 1985).

  14. Stephen Labaton, “The Man Behind the High Court Nominee,” New York Times, June 17, 1993.

  15. Weisman, Daniel Patrick Moynihan, 605–606.

  16. Blackmun dissenting opinion in Callins v. Collins, 510 U.S. 1141 (1994).

  17. Author interview with Harold Koh, September 11, 2013.

  18. Ibanez v. Florida Department of Business and Professional Regulation was argued on April 19, 1994.

  19. Author interview with Justice Ruth Bader Ginsburg, June 29, 2011; author confirmed with Justice Antonin Scalia, August 1, 2012.

  20. Ibanez won her case. The Supreme Court ruled on June 13, 1994, that she had a First Amendment commercial-speech right to use CPA and CFP in her legal credentials. The justices overturned a Florida state court ruling that would have allowed her to be reprimanded by the Florida Board of Accountancy for “false, deceptive, and misleading” advertising because she was not practicing as an accountant. Ibanez v. Florida Department of Business and Professional Regulation, 512 U.S. 136 (1994).

  21. Biskupic, American Original, 110.

  22. After his confirmation, Blackmun bristled at news media reports that dubbed him and Burger the “Minnesota Twins.” Blackmun steadily moved to the left, notably with his opinion for the majority in Roe v. Wade, declaring that women had a right to end a pregnancy before the fetus became viable—that is, could live outside the womb.

  23. Mark Pazniokas, “Lawyers Praise Cabranes’ Intellect,” Hartford Courant, April 17, 1994.

  24. Price, Judge Richard S. Arnold, 332.

  25. See, e.g., Michael Wines, “Bush Says List for Marshall Successor Is Short,” New York Times, June 29, 1991.

  26. Author interview with Adelfa Callejo, April 2, 2011. Callejo also voiced regard for Sotomayor’s effort to move up on the federal bench, saying, “She impressed me as someone who set goals and set timetables to achieve those goals.”

  27. Ruth Marcus, “Ideal Supreme Court Candidate May Exist Only in Clinton’s Mind,” Washington Post, April 19, 1994.

  28. Neil A. Lewis, “No Apparent Front-Runner to Fill Supreme Court Seat,” New York Times, April 28, 1994.

  29. For context on differences among groups, see, for exmple, Bergad and Klein, Hispanics in the United States: A Demographic, Social, and Economic History, 1980–2005.

  30. David Lauter, “Latino Groups Seek United Push for High Court Hopeful,” Los Angeles Times, April 14, 1994.

  31. Antonia Hernández letter to President Bill Clinton, April 24, 1994.

  32. Author interview with Bernard Nussbaum, February 10, 2012.

  33. Clinton, My Life, 592.

  34. Neil A. Lewis, “As Political Terrain Shifts, Breyer Lands on His Feet,” New York Times, May 15, 1994; John H. Cushman Jr., “For Babbitt, a Horizon of Hills and Valleys,” New York Times, May 14, 1994.

  35. Clinton, My Life, 592.

  36. Joan Biskupic, “Mitchell, Cabranes Said to Top High Court List; Senate Majority Leader, Hispanic Judge Offer Clinton Choices on Opposite Ends of Spectrum,” Washington Post, April 8, 1994.

  37. After Clinton opted to nominate Calabresi over Cabranes in early 1994 for the Second Circuit, Connecticut senator Lieberman began working with White House counsel Nussbaum to ensure that the next vacancy would go to Cabranes, even though, through an informal long-standing deal among senators, the next opening would be for a New Yorker. New York senator Moynihan eventually agreed with the plan. Dick Eaton memorandum to Senator Moynihan entitled “Cabranes Nomination Chronology,” July 16, 1998, Moynihan Papers; see also David Lightman, “2 Appellate Seats Sought for Calabresi, Cabranes,” Hartford Courant, January 27, 1994.

  38. “Clinton Names Cabranes to Federal Appeals Court,” Wall Street Journal, May 25, 1994.

  39. Atencio, “The Making of an American Justice.”

  40. Brian Baron, “President Clinton Defers Again: As Another Supreme Court Nomination Slips By, Leaders Admit the Effort Lacked a United Front,” HispanicBusiness, July 1994.

  41. Ibid.

  42. Pew Hispanic Center analysis of national exit poll data 1980–2012.

  43. Lewis, “As Political Terrain Shifts, Breyer Lands on His Feet.”

  44. Transcript of Induction Proceedings for Judge Sonia Sotomayor, U.S. Court of Appeals for the Second Circuit, New York, November 6, 1998.

  45. Ibid. See also, for example, May 12, 1998, letter from Xavier Romeu in White House file for mass mailing on behalf of numerous bar associations touting Sotomayor’s “strong bi-partisan support” and “exceptional legal career,” and July 9, 1998, letter from Gloria E. Markus, assistant to Romeu, to Sarah Wilson, associate counsel to the president, detailing solicited letters from constituents from New York and Connecticut on behalf of Sotomayor; William C
linton Presidential Library.

  46. “Hearings Before the Committee on the Judiciary, United States Senate”; transcript available at www.loc.gov/law/find/nominations/sotomayor/shrg105-205pt2.pdf.

  47. Jan Hoffman, “A Breakthrough Judge: What She Always Wanted,” New York Times, September 25, 1992.

  48. Sonia Sotomayor response to Jeff Sessions, September 30, 1997, “Hearings Before the Committee on the Judiciary, United States Senate,” transcript available at www.loc.gov/law/find/nominations/sotomayor/shrg105-205pt2.pdf.

  49. “The Souter Strategy,” Wall Street Journal, June 8, 1998.

  50. Markus letter to Wilson, July 9, 1998, and separate fact sheet with the headline “The Following Are in Response to Some of the Unfounded Statements Found in the Wall Street Journal: Facts About Judge Sonia Sotomayor’s Record”; William Clinton Presidential Library.

  51. Transcript of Induction Proceedings for Judge Sonia Sotomayor, U.S. Court of Appeals for the Second Circuit, New York, November 6, 1998.

  52. On her Senate Judiciary Committee questionnaire for the Second Circuit judgeship, Sotomayor had written, “Engaged to be married to Peter White, President of Commercial Residential and Industrial Construction Corporation.” The New York Times reported at the time of her nomination, “Less than two years later, she gave a party at their newly renovated apartment for his 50th birthday. And not long after that, their relationship ended. He returned to Westchester County, bought a small boat and married a woman who was an acquaintance of the judge and 14 years her junior.” Michael Powell, Russ Buettner, and Serge F. Kovaleski, “To Get to Sotomayor’s Core, Start in New York,” New York Times, July 9, 2009.

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

  6. THE RIGHT HISPANIC

  1. The national civil rights group changed its name to LatinoJustice PRLDEF in 2008. Its first letter to senators referring to Estrada’s lack of involvement with the Hispanic community and “ultra-conservative views” was written on June 11, 2001, a month after his nomination.