Breaking In: The Rise of Sonia Sotomayor (23 page)

Justice Souter had quietly informed the Obama administration that he would be leaving at the end of the term in late June, and he had asked for advice on the timing of his public announcement. The White House suggested that he wait until June. There were other, more pressing legal dilemmas to address. During the presidential campaign Obama had vowed to close the U.S. naval prison on Guantánamo Bay, where more than two hundred detainees taken into custody from around the world were being held because of suspected links to terrorist activity after the September 11, 2001, attacks. Ending their indefinite detention seemed simple at first. On January 22, 2009, the new commander in chief issued an executive order to close the prison. But each prisoner’s case required careful review before he could be released, prosecuted, or transferred to a foreign nation. Further complicating matters, foreign countries were reluctant to take back their nationals who had been linked even indirectly to terrorism.

President Obama also faced scores of vacancies on the lower federal courts, and the administration was running into trouble with Senate Republicans over nominees. Obama’s ideological opponents had laid groundwork early. Former Reagan administration attorney general Edwin Meese and other outspoken conservatives wrote a letter to Republican senators in January 2009, two days after the inauguration, predicting that Obama was planning to appoint judges who reflected “the most radical judicial activist philosophy of any president in American history.” Meese, an architect of conservatives’ thirty-year drive for control of the bench, and other like-minded conservatives kept the pressure on by going to see Senate minority leader Mitch McConnell and Senate Republican whip Jon Kyl. Their message: “President Obama’s unprecedented call for judicial activism must be met with an unprecedented level of Senate scrutiny.”
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That rhetoric did not reflect the reality of Obama’s approach to nominations for the bench. He was seeking racial and gender diversity more than a set ideology. Nonetheless, many Senate Republicans were ready to believe the dire predictions of activism. In the president’s first major nomination, he chose U.S. district court judge David Hamilton for a seat on the U.S. Court of Appeals for the Seventh Circuit, which covered Illinois, Wisconsin, and Indiana. The administration considered Hamilton a moderate choice and a peace offering to conservatives after years of judicial wars. The nephew of former U.S. House member Lee Hamilton, an Indiana Democrat, he had the support of the state’s senior Republican senator, Richard Lugar. Despite his bipartisan bona fides, Judge Hamilton’s nomination was stalled in the Senate for most of 2009. Republicans justified their action by citing a 2005 district court decision in which Hamilton barred the Indiana House of Representatives from holding an opening prayer session that mentioned Jesus Christ as the Messiah. Hamilton said such references were “sectarian in the Christian tradition” and violated the Constitution’s separation of church and state.
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It became clear that if Hamilton—with his moderate record on the bench, connection to Washington, and support of an influential Republican senator—had confirmation problems, it was likely that Obama’s future nominees were going to run into trouble as well. And they did. The only way Obama was able to win Senate action on his nominees to the powerful D.C. Circuit, in fact, was through Senate Democrats’ change in filibuster rules in 2013, allowing the nominees to get a straight up-or-down vote.

In the spring of 2009 Justice Souter was content to wait to make his retirement announcement, but his hand was forced during the last week of April. National Public Radio’s Nina Totenberg and NBC TV’s Pete Williams aired stories on April 30 reporting that the justice was expected to retire. The next day, Souter made it official.

“I just got off the telephone with Justice Souter,” President Obama told reporters in the White House press briefing room that Friday, May 1. “And so I would like to say a few words about his decision to retire from the Supreme Court … Justice Souter … came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task—reaching a just result in the case that was before him.”

Obama then described the qualities he would seek in Souter’s replacement. He said he wanted someone with stellar academic and professional credentials. He also said those credentials needed to be grounded in real-life experience. Specifically, he said, the candidate needed to possess “that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
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Conservative critics of Obama seized on his aspiration for “empathy,” declaring it an invitation to judicial activism—as if empathy could not coexist with impartiality—and later made it a subtext of their confirmation complaints.

After Souter’s formal announcement, people who had been quietly making moves behind the scenes on behalf of possible nominees shifted into high gear. They wrote to President Obama. They lobbied top aides. They connected with news commentators and other opinion shapers. In an earlier era, there was value in a surprise nominee, but by the 2000s it seemed that the best strategy was an air of inevitability for a candidate in the media and the corridors of power.

The administration’s lawyers had already started talking to potential nominees, even though they thought they would have more time before Souter’s retirement was announced. White House counsel Craig, along with Davies and Butts, had begun to reach out to candidates, including Sotomayor, with questions, and they wanted these individuals to start filling out paperwork about their records and finances. Sotomayor said she first heard from Craig on April 27.
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Four days later, when Justice Souter announced he would be retiring, the calls from the White House team increased.

Meanwhile, Obama’s legal and political advisers pored over candidate files they had gathered independently. The political team was anchored by Rahm Emanuel, Obama’s chief of staff, who had been a policy adviser to President Clinton and served in the U.S. House of Representatives, and David Axelrod, a longtime adviser to Obama. Vice President Joseph Biden, who had experience as a Senate Judiciary Committee chairman, also played a central role in the discussions. Biden brought in two top aides who had worked on the Senate Judiciary Committee and been with him for years: Ronald Klain, his chief of staff, whose Supreme Court nomination experience dated back to the Robert Bork nomination in 1987, and Cynthia Hogan, his chief legal counsel, who had worked for Biden since 1991.

Top lawyers and political advisers scrutinized Sotomayor as well as Judge Wood in Chicago and Elena Kagan, who that spring had been confirmed as U.S. solicitor general, overseeing the government’s appeals to the Supreme Court. Other names were added to the short list, including Department of Homeland Security secretary Janet Napolitano and former Michigan governor Jennifer Granholm. Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit was considered, but then his name was set aside as the process went along. Administration insiders wanted a woman nominee, and they also thought that Garland, who had won strong bipartisan support when he was confirmed to the appeals court in 1997, could serve as a compromise choice later if another vacancy opened in an election year and if the Senate at the time was controlled by Republicans.

In the early weeks of the search, advisers said, Obama leaned toward Judge Wood, who had served on the Seventh Circuit since 1995. She had been a law clerk to Supreme Court justice Harry Blackmun and then worked as an attorney at Covington & Burling, where she focused on antitrust and commercial litigation. She also taught courses at the University of Chicago Law School and wrote law review articles. Wood was a deep thinker who could offer an intellectual counterpoint to the Supreme Court’s conservatives. In an expansive 2004 address at New York University, she argued that “our eighteenth-century Constitution, while a bit cryptic at the edges, is nonetheless a real treasure. Approached the right way, there is every reason to be confident that the dynamic process that has sustained it will continue to do so through the years, decades, and even centuries to come.”
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Such a view clashed with that of the reigning conservative luminary, Justice Antonin Scalia, who believed the Constitution and its amendments should be interpreted in the context of when they were written.

Kagan, a former Harvard Law School dean, had the scholarly academic credentials, too. She was also a power player, having served in the Clinton White House as an associate counsel and policy adviser. At Harvard, she earned a reputation for easing tensions among faculty and bringing in more conservatives. She had no record as a jurist, so observers were not sure whether she had the liberal vigor of Wood. As a new U.S. solicitor general in the spring of 2009, Kagan had yet to argue a case before the Court. Then age forty-nine, she was also the youngest of the three leading candidates.

Sotomayor lacked the scholarly reputation of Kagan and Wood, but she had graduated from two of the most intellectually rigorous schools in the country. Sotomayor had a long, relatively uncontroversial judicial record; the
Ricci
decision stood out. She had served seven years as a trial judge and eleven years as an appellate judge. She did not have the direct personal link to the president that Wood and Kagan had, but she had other connections that proved helpful—her Second Circuit judicial colleagues, Manhattan district attorney Robert Morgenthau, and advocacy groups that had long been pushing for the first Hispanic justice. The Hispanic Congressional Caucus, chaired by Democratic U.S. representative Nydia Velázquez, was persuading African Americans in Congress to throw their support behind Sotomayor. Velázquez, a Puerto Rican who grew up in the Bronx, lobbied for the promise that if a black candidate did not make Obama’s short list, the Congressional Black Caucus would back Sotomayor.

For Obama, ethnicity cut both ways. He understood the value of diversity, but as the man who had not asserted his own racial identity in his campaign, he did not want to be seen as choosing someone simply because of her color and ethnic heritage. He wanted someone he could say had a superior intellect and judicial demeanor. Almost immediately, critics of Sotomayor were raising doubts.

Three days after Justice Souter’s retirement announcement on May 1, Harvard law professor Laurence Tribe, for whom Obama was a research assistant at Harvard, wrote to the president, recommending Kagan and criticizing Sotomayor. A leading constitutional scholar with a national following, particularly in liberal circles, Tribe first urged the president to use the Souter vacancy as an “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Tribe, the author of several casebooks, then dissected the impact of individual justices, saying,

Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.

If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the impact within the Court would be negative in these respects. 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 Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier.”
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Tribe was referring to two pending challenges to racial policies,
Northwest Austin Municipal Utility District No. 1 v. Holder
, testing a crucial section of the 1965 Voting Rights Act, and
Ricci v. DeStefano
.

Former Harvard Law School dean Kagan was a natural choice, Tribe insisted. He told Obama she offered “a combination of intellectual brilliance and political skill that would make her a ten-strike, if you’ll forgive my reference to bowling.” The letter continued to sing the praises of Kagan compared with other potential nominees, including Wood, in terms of intellectual persuasiveness on the Court. The private correspondence became public in 2010, when
National Review
conservative commentator Ed Whelan posted a leaked copy online. Tribe responded to questions at the time of that disclosure by saying his reservations were refuted by Sotomayor’s performance during her first term. In 2014, after studying her nearly five-year tenure, Tribe elaborated, “Simply put, I was totally wrong in ever doubting how strong a Supreme Court justice Sonia Sotomayor would be, as I had done when contrasting her with Elena Kagan, whose nomination I favored at the time.”
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Yet Tribe was not alone in raising concerns about Sotomayor in 2009. On that same May 4, Jeffrey Rosen, a George Washington University law professor and regular columnist for
The New Republic
, wrote a piece for the magazine’s website entitled “The Case Against Sotomayor.” The article included comments from people Rosen identified as having “worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York,” most of whom were Democrats. According to Rosen, none of the individuals in this group “raved about [Sotomayor],” and “they expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.”
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