Breaking In: The Rise of Sonia Sotomayor (22 page)

White House lawyers were watching as the
Ricci
case played out. They said later that they were not so concerned that the Roberts Court had reversed the Sotomayor panel. That was predictable, given the five-justice majority’s views of racial policies. “The reversal was less important to us than the question of whether she had done an adequate job on the Second Circuit in writing the opinion,” said White House counsel Gregory Craig. Did she take it seriously, they wanted to know, or simply engage in a politically expedient move? “Did she phone it in?” asked Craig.
29

It would be just one of the questions White House lawyers would raise and balance along with everything else when the time came to decide who would get the first Supreme Court nomination of President Obama’s tenure.

Firefighter Ricci would have his own moment in the national spotlight when he testified in 2009 at her confirmation hearing. Wearing a crisp blue dress uniform as he appeared before the senators, he said the disputed tests were critical to public safety: “When your house is on fire or your life is in jeopardy, there are no do-overs.”

In the end, Ricci lamented that “the more attention our case got, the more some people tried to distort it.”
30

NINE

The President’s Choice

A few weeks after Barack Obama’s November 2008 presidential election, he huddled with legal advisers in his Chicago transition office to thrash out priorities. The Supreme Court came up almost immediately. Obama believed he would have at least two opportunities to make nominations. Justices David Souter and John Paul Stevens—two Republican appointees who had moved to the liberal camp over time—appeared likely to step down during the next four years.

Obama knew that his lawyers were gathering names of potential nominees for all levels of the federal bench, but the president-elect wanted to make sure three names were definitely on the Supreme Court list: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit and an Obama teaching colleague from the University of Chicago; Cass Sunstein, a former professor at the University of Chicago who had just taken a position at Harvard Law School; and Elena Kagan, another former University of Chicago professor, who had become dean of the Harvard Law School. As Obama mused about other possibilities, he mentioned Sonia Sotomayor. “Clearly, she has to be in the mix,” Obama said, according to Gregory Craig, who became the White House counsel.
1
Obama understood the potential historic and political benefits of naming the first Hispanic justice to the Supreme Court.

As a former law professor at the University of Chicago who had written about the “high wire” thrill of teaching students the Constitution, Obama also understood the sheer magnitude of a Court appointment. In his 2006 book
The Audacity of Hope
, he extolled the individual liberties enshrined in the Constitution and said, “We would be hard pressed to find a conservative or liberal in America today, whether Republican or Democrat, academic or layman” who did not embrace the constitutional values espoused by the High Court.
2
Yet he knew that appointments to the bench were polarizing affairs, where the past was prelude. Obama observed that “each side has claimed incremental advances … and setbacks.” In the latter category, he noted that conservatives lamented the leftward drift of David Souter, an appointee of President George H. W. Bush.
3

*   *   *

Two decades earlier, the reserved, bookish Souter had come to the White House’s attention through his connections with Republican U.S. senator Warren Rudman and White House chief of staff John Sununu, natives of New Hampshire who had previously worked with him. Souter had been state attorney general and a state court justice. In early 1990 Bush named him to the Boston-based U.S. Court of Appeals for the First Circuit and then tapped him in August 1990 to succeed the retiring Supreme Court justice William Brennan. Sununu promised Republicans that the relatively obscure Souter would be a “home run for conservatives,” but this prediction could not have been more wrong. Souter ended up being one of the liberal members of the Court during the late 1990s and the 2000s, which prompted a “no more Souters” mantra among conservatives.

And almost immediately after the 2008 election, Souter was ready to give the new Democratic president an opportunity for a Supreme Court appointment.

Souter loved the law but had disliked Washington, D.C., from the start. Soon after moving to the nation’s capital in the autumn of 1990, the fifty-one-year-old bachelor known for his ascetic life made it clear that he did not want to mix with the town’s elite. He turned down the many invitations for social occasions that came his way and preferred to eat a lunch of apple and yogurt alone at his desk. He longed for the years when he could read Thoreau and the other classics of literature that enthralled him, rather than face mounds of legal briefs piled on the desk in his chambers, where he liked to keep on few lights and work in semidarkness. When the Supreme Court term recessed each summer, Souter took off in his Volkswagen Jetta for his small family farmhouse in New Hampshire.

As he become a reliable vote for the liberal wing, in 1992 he was critical to the five-justice majority in
Planned Parenthood of Southeastern Pennsylvania v. Casey
that upheld a woman’s right to abortion. He joined the left on other social policy issues, opposing the death penalty and supporting affirmative action. Souter, who succeeded the liberal Brennan and became his friend, also dissented in a succession of cases in which the conservative majority curtailed the federal government’s authority to enforce civil rights laws against the states. In 2000, when the conservative majority decided the case of
Bush v. Gore
, cutting off the Florida election recounts and giving Texas governor George W. Bush the White House, Souter was devastated. He believed that the decision, reversing Florida state court action, undermined the integrity of the federal judiciary. He thought the Supreme Court should leave it to the Florida state judges to establish uniform standards for problematic ballots rather than halt the recounts and effectively declare Bush the winner over Vice President Al Gore. He felt betrayed by his conservative colleagues in the majority.

Souter told friends he might retire after the 2004 presidential election, no matter who won, but when George W. Bush defeated U.S. senator John Kerry and earned another four-year term, Souter decided to stay. By 2008 it was well known at the Supreme Court that Justice Souter was hanging on for a Democrat to win back the presidency.

In the November 8, 2008, election, Democratic senator Obama of Illinois beat Republican senator John McCain of Arizona to become the first African American to take the White House. Obama overwhelmingly won the black vote—96 percent—yet also won the largest share of white voters of any Democrat in a two-man race since 1976, as well as a wide margin of the Hispanic vote. Hispanics had voted for Obama over McCain by a ratio of more than two to one, 67 percent versus 31 percent, according to an analysis by the Pew Research Center’s Hispanic Trends Project. All told, 9 percent of the 2008 electorate was Hispanic.
4

Obama, the son of a white mother from Kansas and a black father who had grown up in Kenya, prided himself on transcending America’s enduring racial divisions. He also understood and appreciated that he could make history in another important way—by putting a Hispanic on the Supreme Court.

When he met with legal advisers in Chicago after his victory, Obama was keenly aware, too, that the Court had only one woman. The nation’s first female justice, Sandra Day O’Connor, had retired in January 2006 to care for her husband.
5
Justice Ruth Bader Ginsburg, who had been appointed by President Bill Clinton in 1993, was the sole woman left.

Ginsburg, the former women’s rights advocate, made sure the nation knew she was there, even if alone. When President Obama addressed a joint session of Congress for the first time in February 2009, Ginsburg was recovering from pancreatic cancer and chemotherapy treatments, but she dragged herself to the evening event and sat with her brethren. She said she wanted to make sure that people watching the nationally televised address saw that the Supreme Court had at least one woman.
6
Around the same time, Ginsburg also said in the most emphatic terms that she thought the Court needed another woman—that the presence of a single female justice sent a discouraging message about women’s roles in society. The “worst part,” she remarked, is the image projected to students who visit the Court: “Young people are going to think, ‘Can I really aspire to that kind of post?’”
7

Anyone paying attention to the politics of judicial nominations knew that President Obama would be inclined toward a woman appointee for an opening on the Court and be drawn to the idea of naming the first Hispanic.

Sonia Sotomayor was paying attention.

With sharp political instincts, she was also her own best agent. That quality had been apparent since childhood. She occasionally protested that she was simply going with the flow of national events, but her ambition and drive set her apart. As Sotomayor wrote in her autobiography, once she set herself on the path of a legal career, “I saw no reason to stint on ambition.”
8

In early 2009, Sotomayor, at fifty-four, had not lost the urgency of youth. Soon after Obama took the White House, she invited Carlos Ortiz, the former president of the Hispanic National Bar Association, to her Greenwich Village condominium for breakfast. Ortiz had been at the forefront of Hispanic lawyers’ efforts to win Supreme Court representation. She showed him around the apartment that she had redecorated, served hot cocoa and cookies, and then got down to business.
9
She wanted advice on how she could be ready for a Supreme Court opening.

“She happened to volunteer that line about how getting to the Supreme Court is like being struck by lightning, twice,” recalled Ortiz. “She was trying to be humble. She said, ‘If you have advice, I’m happy to hear what you would say.’” Ortiz said he urged her to think about connections she had, who she could tap in the administration, and any potential obstacles she might need to confront. He said she mentioned her diabetes. “She had been afflicted with this since [childhood] and has been really good about keeping it in check. I told her she shouldn’t be as concerned about it.” Like others, he had observed that she never hid the condition or let it slow her down. “She just pulls out her kit,” Ortiz said, referring to the insulin shots she gave herself. “And boom!”
10

For nearly twenty years Ortiz had been working with other Hispanic lawyers to try to persuade a president to name the first Hispanic Supreme Court justice. For years, they had been putting up names. Now, in 2009, Sotomayor, with her Ivy League credentials and seventeen-year tenure on the federal courts, looked like an unstoppable contender, at least to Hispanic groups.

*   *   *

Beyond the Hispanic community, well-connected Sotomayor supporters were already speaking on her behalf to people who would matter. Legal insiders knew that this was important. Groundwork had to be laid. Other possible contenders on Obama’s early list—notably Wood and Kagan—had surrogates reaching out to administration officials and other opinion shapers in the nation’s capital for early support.

Two colleagues of Sotomayor’s from the Second Circuit appeals court, Judges Guido Calabresi and Barrington Parker, arranged a visit with White House counsel Gregory Craig a few weeks after Obama’s inauguration. Calabresi had long known Sotomayor, a former student of his at Yale Law School, and Parker was an old pal from the federal trial court in New York (they shared a Yankees ticket package).
11
Calabresi said that their mission did not arise from an effort to promote Sotomayor; they wanted to draw Craig’s attention to a range of judicial issues important to them. Still, when the topic of the Supreme Court came up, he wanted to set Craig straight on an element of Sotomayor’s reputation. “You’re going to hear how she’s tough in court and she’s aggressive,” Craig recalled Calabresi saying. “But she’s a great judge, and she runs an exciting hearing. It’s nothing out of the ordinary.”

The former Yale Law School dean, then a fifteen-year veteran of the Second Circuit, said in a later interview that he wanted to demonstrate, preemptively if possible, the sexism at the heart of criticism that Sotomayor was too aggressive during oral arguments. Because of past complaints about her from lawyers, Calabresi said, he had been keeping track of her questions and those of male judges. If anyone asked, he said, he “was able to give chapter and verse on how this was entirely sexist.” Calabresi found her tough and demanding but not beyond the norm of what lawyers and other spectators should expect from the bench. “She isn’t rude,” he said, “but she goes after you.” He believed that Sotomayor was being criticized for behaving as he and other male judges might.
12

Summing up the conversation with the Second Circuit judges, Craig said, “They were anticipating what was going to come out of the lawyers from the Second Circuit who were pushed around a bit by her.”
13
Even before Souter had announced his retirement, Sotomayor allies were trying to counter such comments as those found in the
Almanac of the Federal Judiciary
, which news reporters and legal analysts often used as a guide: “She abuses lawyers” and “She really lacks judicial temperament.”
14
The groundwork laid by Calabresi to counter such statements, along with his willingness later to praise Sotomayor’s intellect and abilities in interviews with reporters, would be crucial to her appointment. Judge Parker said that a few weeks after their meeting he received a call from associate counsel Susan Davies, who worked with Greg Craig, mentioning criticism about Sotomayor’s intellectual caliber. “I told her, what you’ve got to remember is that she won the Pyne Prize and she was summa at Princeton.”
15
In the early weeks of Obama’s new administration, Davies and Cassandra Butts, a deputy to Craig, were troubleshooting potential nominees.