Breaking In: The Rise of Sonia Sotomayor (2 page)

Yet Obama’s choice for the Supreme Court might not have been this Puerto Rican daughter of the Bronx. One of his mentors from his Harvard Law School days was against it. “Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the firepower of the [conservative] wing of the Court,” wrote Harvard law professor Laurence Tribe, an important liberal voice in American jurisprudence.
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Tribe, who later altered his opinion of Sotomayor, had been Obama’s professor at Harvard and an early supporter of his bid for the presidency.

Obama himself was ambivalent as he faced the 2009 vacancy after the retirement of Justice David Souter. Obama saw the political value, certainly, of naming the first Hispanic justice. But the man who, as a student, had held the top editorship on the
Harvard Law Review
and then taught at the University of Chicago Law School had his own elite interests. He was attracted to other candidates he knew from Chicago’s academic enclave of Hyde Park. His preliminary list, right after the 2008 election, was topped by three names: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit who lectured at the University of Chicago; Cass Sunstein, a Harvard law professor who earlier had taught at the University of Chicago; and Elena Kagan, a former University of Chicago professor who had become dean of Harvard Law School.
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Sotomayor’s inclusion on Obama’s expanded list arose from her education, experience, and connections, as well as the diversity she would offer. Her appointment might perhaps be compared to that of the first African American justice, Thurgood Marshall, the civil rights giant who developed the strategy leading up to
Brown v. Board of Education
. President Lyndon B. Johnson had chosen Marshall in 1967 as part of the president’s broader civil rights efforts. Johnson, who had been the force behind the 1964 Civil Rights Act and the 1965 Voting Rights Act, sensed that public attitudes about race were changing. His nomination of Marshall was a principled move, to be sure, yet not one without political calculation.
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But any comparison between Marshall, a first-generation civil rights advocate, and Sotomayor, heir to the Latino pioneers who came earlier, goes only so far. What’s more, while Johnson was on the cutting edge, Obama’s choice of the first Latina felt overdue. For years, decades even, presidential candidates had been vowing to appoint a Hispanic justice. In 2009, when it finally happened, Hispanics represented 16 percent of the United States population. During the 2000s, the Hispanic population grew four times faster than the overall U.S. population.
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Opposition to Sotomayor at the time of her nomination came not in the form of the outright racism that Southern senators had shown Marshall in 1967, but in the subtle bias of commentators that she was not up to the job. Such criticism portrayed her as an intellectually inferior jurist and offered a narrative that competed with her personal story of success. She would later say, “It was very, very painful both on the court of appeals and on the Supreme Court nomination process that people kept accusing me of not being smart enough. Now, could someone explain to me, other than that I’m Hispanic, why that would be?”
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Such bluntness separated Sotomayor from others who jockeyed for position in the nation’s capital. She spoke candidly of cultivating the necessary skills, building the networks, and overcoming personal setbacks. Her Supreme Court appointment was the culmination of an ambition stoked early on. In law school, she said, she realized the role individual judges could play in social justice—to protect voting rights or reduce segregation. “The idea that a single person could make such a difference in the cause of justice was nothing less than electrifying,” Sotomayor wrote in her memoir, “and having more or less accepted the primacy of career in my life, I saw no reason to stint on ambition.”
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Having achieved appointments to lower federal courts in the 1990s, she was careful to avoid controversy and continued to build alliances. She also did not tamp down her heritage or personality. She was not someone who “happened” to be Puerto Rican. She talked of eating such island specialties as pig intestines. And when it came time for her to administer her regular shot of insulin to care for her diabetes, she did not retreat to the ladies’ room. Even at fancy dinners she took out the kit she always carried and injected herself at the table. Her unvarnished approach sometimes discombobulated associates, but it also conveyed an authenticity, even a vulnerability, that drew people to her.

In her early years at the Supreme Court, she elicited intense admiration alternating with annoyance for her garrulous, forceful style. She was a different model at an institution where justices, as a group, have been relatively bland and socially conforming, even as they differed radically on the law. What passed for flamboyance at the Court would generate a yawn in other venues. When Roberts’s predecessor as chief justice, William Rehnquist, put gold stripes on the sleeves of his black robe in 1995, mimicking a character from Gilbert and Sullivan, it made national news.
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What follows is, first, a story of fortuitous timing and alignment with national events for a woman who was determined—as seen at her first Supreme Court end-of-term party—to stand out. Her ethnic identity helped her get ahead, but only after she surmounted hurdles that stopped most of her Latina cohort and, in point of fact, stopped almost everyone else seeking great stature in the judiciary.

Sotomayor’s voice has been heard in a memoir that has earned her millions of dollars and sold hundreds of thousands of copies. She connects with people beyond the Washington Beltway as no other justice has. People reach out to hug her. She is a magnet, especially, for children. When Pew Research polled Hispanics on community leaders in 2013, Sotomayor and U.S. senator Marco Rubio, a Florida Republican, topped the list of those named.
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She attests to the dreams and aspirations of America. It is in the national fiber to believe someone can come from nothing, work hard, and become something. But Sotomayor’s rise has not been without adverse reactions. The justice appointed for life still has her doubters, and it remains to be seen how she will answer them over time. She has played up her ethnicity and celebrity status as a “first,” in contrast to the man who put her where she is today. President Obama rarely gives voice to his experience as the child of a black father and a white mother, and in political Washington, only on the most exceptional occasions does he speak about race in a personal way.
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This book offers an early look at how Sotomayor is publicly defining herself and compares her with other groundbreaking justices and her contemporary colleagues. The contrast with Elena Kagan, President Obama’s second appointee, offers one measure. Justice Kagan has become known as a shrewd tactician among her colleagues. She has been held up by White House officials as a model for Obama appointees to all federal courts—a judge who has the “potential to persuade” conservative colleagues.
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Kagan’s pattern on the bench and in opinions indicates that she sees herself operating strategically as one of nine justices. Sotomayor, in contrast, is more of a solo operator, engrossed in her own determinations on a case, less interested and adept in getting others to adopt them.

As she challenges presumptions about how justices act and enlarges their place in the American mind, it may be that the personal characteristics that propelled her to this moment in history prevent her from being most effective. It is not clear that the popularity she has achieved outside the Court can be matched by a persuasive ability within its marble walls.

She has begun to make her mark, primarily by seeking fairer procedures for criminal defendants. Her writings reflect the knowledge earned in a big-city prosecutor’s office and years presiding over trials, as well as the more personal experience of being a Latina.

As surprising as her salsa dancing was at the first end-of-term party, some justices say it now seems to have reflected the core of her character. She shakes up the proceedings and confronts her colleagues in their private discussions of cases.

When she asked them to dance, they did. On the law, they may be less likely to follow.

TWO

“Life Is All Right in America … If You’re All White in America”

By the time Sonia Sotomayor was a teenager, in the late 1960s, the Puerto Rican Day Parade in New York City had grown from a procession through Spanish Harlem into an annual spectacle that ran for hours up Manhattan’s Fifth Avenue. Big bands played brass, and smaller ensembles strummed Latin rhythms on guitars. Majorettes with batons strutted along the street. Beauty queens threw flowers from floats, and men in colorful shirts flipped straw hats in the air. Amid the pageantry, mayors from Puerto Rico’s cities flashed broad smiles as they rode the route, while New York dignitaries and often the governor himself presided at the reviewing stand.
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As hundreds of thousands of people watched along the avenue and on local television, the parade—initiated in 1958—offered a platform for Puerto Ricans to show their flag, literally, and to flaunt their island past and deepening connection to mainland America. The event attracted state and national politicians, including Democratic U.S. senator Robert F. Kennedy in 1966 and 1967, before his presidential run. The parade also became a venue for political agitation, as in 1971, when hundreds of the nationalist Young Lords and other demonstrators supporting Puerto Rican independence threw bottles and bricks.
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Even when the event was not marred by violence, it became increasingly raucous in the late 1960s and early 1970s.

Once, when Sonia Sotomayor was watching the parade on television at the home of a friend, her friend’s father made a remark that startled and stuck with her. She remembered him saying, “Aren’t those disgusting people?”
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References to “those people” were not new to this Puerto Rican growing up in the Bronx. She had heard bigoted comments before, sometimes whispered, sometimes spoken loudly, as at this moment.

Sotomayor stood up and turned to her friend’s father. “Those people? They’re my people. I’m Puerto Rican,” she said as she walked out.

Even as a girl, she had a way of declaring her identity in the bluntest terms. If people got in her face, she got in theirs. When whites taunted this Latina who sometimes traversed their neighborhood, she fought back with her fists. As she grew, she remembered the slights by people who doubted her classroom ability because of her ethnicity. Sometimes she raged quietly when she felt the sting of prejudice. Other times, in more formal academic settings, she went public with her complaints.

As Sotomayor established her place, beginning with the conflicts she navigated with her mother and father and then with classmates and teachers, she developed strategies for taking on a world that might have dismissed her as one of “those people.”

She was headstrong from an early age: if she did not like what she was being fed, she would purse her lips together, puff out her cheeks, and make it nearly impossible for her mother to get a spoonful of food into her mouth. When misbehavior landed her in a “time-out corner,” her mother would be the first to give in. Recounted Sotomayor: “She would say, ‘Come out when you’ve reconsidered.’ And I never would … She would have to call me out” from the corner.
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Sotomayor excelled in the high school debate club, and when a Yale classmate told her she argued “like a guy,” she had to admit to herself that from an early age she was defined by an aggressiveness not usually seen in females of her day.

She was determined to avoid the failures of some relatives—cousins who married young or turned to illegal drugs. The worst was the experience of her father, who was depressed, alcoholic, and unable to overcome the vicissitudes of his difficult life. With little formal education and often unemployed, he would sit in a chair, stare out the window, and simmer in anger at his perceived exile in New York. Young Sonia would eventually see the drained Seagram’s 7 bottles in his dresser drawers and under his mattress. It was a bed he rarely shared with Sonia’s mother.

As Sotomayor was standing up to her personal trials, the nation’s civil rights movement was expanding beyond African American concerns to Latino interests, particularly in the Mexican American hubs of Texas and California. Her assertion of her own identity coincided with increasing Latino visibility across America in the 1960s.

The political activities of the era provided the scaffolding that would lift Sotomayor from the Bronx, through the precincts of the Ivy League, and ultimately onto the federal bench. Her childhood experience was distinctly Puerto Rican. Yet when she was appointed to the Supreme Court in 2009, she was a symbol for all Hispanics.

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Puerto Ricans were relative newcomers to the mainland. But great numbers of Mexican Americans had been living in the West for more than a century and, throughout the 1900s, asserting claims for equal rights in California, Texas, and other states. In the 1960s, as Sotomayor was coming of age in the Bronx, Mexican American civil rights activist Cesar Chavez was organizing farmworkers and seeking better conditions for laborers in California. His escalating boycotts and strikes, which triggered violent attacks on picket lines, made constant headlines.

The struggles of Puerto Ricans—for jobs, housing, and good schools—increasingly made the news, too, as the great postwar migration from the island intersected with the financial crises that gripped New York and other cities. Their plight would become grist for sociologists, including in the seminal study by Nathan Glazer and Daniel Patrick Moynihan,
Beyond the Melting Pot
, first published in 1963. Popular culture also captured the simmering social tensions. In
West Side Story
, Leonard Bernstein’s adaptation of the Romeo and Juliet tale featuring a star-crossed Puerto Rican girl and Polish American boy, New York Puerto Ricans sing, “Life is all right in America … if you’re all white in America.” The 1957 Broadway musical, turned into a 1961 Academy Award–winning movie, may have stigmatized Puerto Ricans more than any other twentieth-century work, but it captured the reality of the opportunities many Puerto Ricans found on the mainland. As the lyrics from the song “America” went on, “Free to be anything you choose … free to wait tables and shine shoes.”