Breaking In: The Rise of Sonia Sotomayor (8 page)

“For this pain of failure—the first real failure since having enrolled in law school—I had only myself to blame, and knowing that, I was profoundly shaken,” Sotomayor conceded. After she returned to New Haven for her final year of law school, she sought assistance in writing briefs and signed up for classes that she thought would help her better understand commercial transactions. She tried to remedy her inadequacies. “The unfamiliar taste of utter failure from that summer would stay in my mouth,” she wrote. “The memory of this trauma, which I was determined not to repeat, while not suffocating my ambitions, would overhang my every career choice until I became a judge.”
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It would not be apparent to those watching how much that failure stung. It would be clear, however, that she was motivated, not deflated, by defeat. Sotomayor had a personal resilience that allowed her to survive the system and to work it. As she had done at Princeton, she studied hard to catch up to students from more privileged backgrounds. She served as an editor on
The Yale Law Journal.

Years later, when she was nominated for the Supreme Court, the
Yale Daily News
interviewed thirty-four of her classmates and concluded that “while she was unquestionably bright, she never emerged as a star—as someone who would one day be nominated to serve on America’s highest court.” One peer said, “If you had come up with a list of people in our class that would have been named to the Supreme Court, she would not have been on it.”
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Of course, such a statement could be said about many people who have become justices over the years. But with Sotomayor, it touched a nerve. As she would complain years later, her academic credentials and professional achievements were frequently dismissed. She chalked it up to her being Hispanic. Even as she earned appointments to the federal bench, she said, “It was very, very painful … that people kept accusing me of not being smart enough.”
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The Shaw, Pittman partner had suggested that if a young minority lawyer landed a job she was not ready for, it proved that affirmative action was a failure. Sotomayor disagreed. If that young lawyer could catch up and contribute, she believed, it proved the value of affirmative action. She felt no need to apologize for the policies that had gotten her into Princeton and Yale.

*   *   *

The nation’s tensions over affirmative action surfaced in courthouses across the country. In 1978, the same year that Sotomayor was confronted at the recruiting dinner about her qualifications, the Supreme Court took up the landmark case of Allan Bakke, who challenged a race-based admissions policy of the medical school at the University of California, Davis. Blond-haired, Minnesota-born Bakke had served as a naval officer in Vietnam and then worked as an engineer at NASA’s Ames Research Center near Palo Alto. At age thirty-four he decided that he wanted to go to medical school, but he was rejected twice. His scores were close to the acceptance cutoff, and a university admissions officer told him that he was squeezed out because of spots reserved for minorities, about sixteen out of a hundred first-year applicants.
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Bakke sued the university, claiming that the medical school engaged in reverse discrimination by denying him admission while admitting minority applicants he described as “not as qualified.”

His case highlighted complex questions of law and fairness—dilemmas that traced back to Sotomayor’s formative years and would not subside. Responding to Bakke’s claim, University of California president William Saxon said that the school was seeking a mix of students who would best serve the academic and the professional world, “including the important need of integration.” He explained that for years, selection had been based primarily on the highest grade point averages and test scores, giving “preference to students with the best educational opportunities and the most academically supportive family and cultural backgrounds—in short, middle- and upper-class white students.” Saxon said the result was a shortage of minority physicians and doctors in poorer, heavily minority communities.
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In a split decision in the
Bakke
case issued on June 28, 1978, the Supreme Court forbade the use of quotas in the admission of minority students but allowed schools to take race into account as one of several factors, based on universities’ compelling interest in a diverse student body. That meant affirmative action would survive, although not as robustly as civil rights advocates had sought. Justice Lewis Powell’s opinion bridged the gap between two dueling factions on the Court, and he used as the ideal the flexible Harvard College admissions policy that allowed for race as a “plus” in an applicant’s file as he or she was considered along with other candidates for the available seats.
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The compromise deeply offended Justice Marshall, who said the universities should be able to use race more directly to increase the number of black doctors. “In declining to so hold,” Marshall wrote, “today’s judgment ignores the fact that for several hundred years, Negroes have been discriminated against not as individuals, but rather solely because of the color of their skins.”
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Still, the
Bakke
decision ensured that elite colleges, such as the ones Sotomayor attended, would continue to encourage minority applicants.
45

As battles continued to rage over affirmative action, Sotomayor talked freely about her own experiences. “I am the perfect affirmative action baby,” she declared at a 1994 conference for women in the law, echoing a phrase popularized by Yale law professor Stephen Carter in his 1992 book. “My test scores were not comparable to that of my colleagues at Princeton or Yale,” Sotomayor acknowledged. “If we had gone through the traditional numbers route of those institutions it would have been highly questionable whether I would have been accepted.” Sotomayor attributed differences in test scores between well-off whites and disadvantaged minorities to the cultural biases built into testing.
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She did not retreat in her defense of affirmative action over the decades. Laced throughout her 2013 memoir were statements defending the policy that had launched her. She would observe that even a quarter of a century after the 1978 episode with the Shaw, Pittman recruiter and the
Bakke
Supreme Court ruling, high-achieving minorities still faced doubts. “It is the same prejudice that insists all those destined for success must be cast from the same mold as those who have succeeded before them, a view that experience has already proven a fallacy,” she wrote.
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Sotomayor was determined to prove her doubters wrong and also motivated by a conversation with a cousin, Nelson, before his death brought on by drug addiction. She told him that he had always seemed the smartest of all the cousins. Nelson responded that she had something better: perseverance. “I know that my competitive spirit—my drive to win, my fear of failure, my desire constantly to outdo myself—bubbles up from very deep within my personality,” Sotomayor wrote. “It’s rarely directed at others; I compete with myself.”
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After she graduated from Yale Law School, in 1979, she went to the Manhattan district attorney’s office. On the recommendation of Yale’s José Cabranes, she was hired by Robert Morgenthau, who, after having served as the United States attorney for the Southern District of New York under Presidents Kennedy, Johnson, and Nixon, had taken the helm of the DA’s office in 1975.

Tall and lean, with a commanding presence that earned him the enduring title of “the Boss,” Morgenthau was known for his prosecutorial integrity. His roots traced to a world of privilege. President Woodrow Wilson had selected his grandfather as the U.S. ambassador to the Ottoman Empire, and his father became secretary of the treasury under Franklin D. Roosevelt. Morgenthau’s relationship with John Kennedy, the first president to appoint him, began when they were teenage boys in New York.

Morgenthau had told Cabranes that he was looking for more Hispanic prosecutors.
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In the late 1970s and early ’80s, the era of Tom Wolfe’s
Bonfire of the Vanities
, Manhattan seemed overwhelmed by street crime. The Manhattan district attorney’s office had few minority prosecutors, and Morgenthau was constantly under pressure to raise those numbers to build confidence in the system. For decades, Hispanics had found themselves disproportionately pulled into the machinery of the criminal justice process. They were more likely than whites to be crime victims, and a higher percentage of Hispanics were defendants and went to prison.

Being a prosecutor was not exactly what Sotomayor had envisioned for herself. Television’s Perry Mason, her childhood idol, was a defense lawyer. When she chose the prosecutor’s office, she said, “There was a tremendous amount of pressure from my community. They could not understand why I was taking this job. I’m not sure I’ve ever resolved that problem.”
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But the DA’s office gave her immediate hands-on experience, improved her strategic thinking, and offered her a way to serve victims within her community.

Sotomayor began with misdemeanors, petty thefts, and assaults and moved up to such felonies as racketeering, sex crimes, and eventually murder. This was no law firm setting: her desk was squeezed in with several other prosecutors. Stacks of papers and boxes of evidence loomed over her. In the summer it was so hot that sweat soaked through her clothes. In the winter it was so frigid she wore her coat while she worked.

Challenged in every way, she logged long hours. She would leave the house at 7:00 a.m. and get home at 10:00 p.m. She went into dangerous neighborhoods to interview witnesses and took on difficult child pornography and abuse cases. She was not cowed by defense lawyers, who would sometimes assume that her junior male associates were in charge. When visiting lawyers asked her to get the coffee, she turned her resentment into an “I’ll show them” mantra.

Years later she would say that the measure of success in the DA’s office in the early 1980s was based on the forceful behavior displayed by her male bosses. For promotion in the felony division, she said, “They picked people who acted as prosecutors as they did. All of the first … people selected, myself included, were highly aggressive, very in-your-face prosecutors—because that’s the model that they all were.”
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After her own promotion to the homicide division, she worked on the “Tarzan” murder case. Richard Maddicks was known for swinging into apartment windows on a rope tied to rooftops and shooting anyone who caught him in the act of ransacking apartments. He was charged with murder, attempted murder, robbery, and burglary. Sotomayor persuaded his girlfriend to testify against him, and he was convicted and sentenced to life imprisonment.
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But Sotomayor began to wonder whether she was contributing to the greater good. “The one thing I have found is that if you come into the criminal justice system on a prosecutorial or defense level, thinking you can change the ills of society, you’re going to be sorely disappointed,” she said in a 1983 interview with
The New York Times
. “This is not where those kinds of changes need to be made.” Described in the
Times
story about Morgenthau’s office as “an imposing woman of 29 who smokes incessantly,” Sotomayor spoke candidly of her personal struggles as a Latina from the Bronx. “What I am finding, both statistically and emotionally, is that the worst victims of crimes are not general society—i.e., white folks—but minorities themselves. The violence, the sorrow are perpetrated by minorities on minorities.”
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Work in the district attorney’s office exhausted her. She kept running into the same bad actors over and over. She felt herself becoming uncharacteristically cynical, and the demands, in terms of hours and attitude, spelled the end of her already unraveling marriage to Kevin Noonan.

While she served in Manhattan, Noonan was at Princeton getting a Ph.D. in molecular biology. They drifted apart as they became immersed in their respective professional lives. She said later that she had been so caught up in her career that she barely noticed the distance—real and emotional—between them. They divorced in 1983.
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In the years that followed, Sotomayor talked candidly about the miseries of dating, first in the interview with
Mademoiselle
that had followed the path of Ivy League women, and then with ABC’s
Good Morning America.
In the TV interview, Sotomayor was direct about how her work was killing her romantic life. “A man who calls you three times and all three times you answer, ‘I’ve got to work late, I’m flying to such and such a place’ … after the third time, he begins thinking, ‘Gee, maybe she’s not interested.’”
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The year of her divorce was also the year she left the DA’s office for the small commercial firm of Pavia & Harcourt. She said she wanted to broaden her experience and was looking for a place where she would not be merely another cog in the machinery. “It became clear that I would need more varied experience if I was going to aim higher than a line attorney in a government bureaucracy,” she said, referring to her goal of a judgeship.
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At Pavia & Harcourt, which had about thirty lawyers at the time, she began with routine transactions, real estate and consumer warranty disputes. No longer was she in the hard-charging atmosphere of the DA’s office. “Within my first couple of days on the job,” Sotomayor recalled, “a colleague who sat within earshot of my phone calls let it be known to another litigation associate, who then spread the word, that I was ‘one tough bitch,’ who could not be pushed around by an adversary.” The harsh description surprised her. “Trying case after case by the seat of your pants at the DA’s Office, you develop a bravado that can seem abrasive to lawyers who have no acquaintance with that world. It was kind of culture shock in both directions.”
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