The events that would surround Cabranes’s experience, combined with episodes involving other judicial candidates in the 1990s, made it clear that nominees had to be ready to navigate White House and Senate politics aggressively. Support and lobbying from key players spelled success; the lack of it could lead to failure. A single crucial backer—at exactly the right place and time—could propel a nominee across the finish line. During the era of President Bill Clinton, key nominations succeeded only because of a late-night call to Attorney General Janet Reno, the persistence of Democratic senator Edward Kennedy of Massachusetts, and a last-minute rescue by Republican senator Alfonse D’Amato of New York.
Presidents understood the power of playing to demographics in nominations, both throughout campaigns and while in office. During his presidential campaign in 1980, Republican Ronald Reagan promised that he would appoint the first woman to the Supreme Court. At the time, in his campaign to unseat Democrat Jimmy Carter, Reagan was not doing well in the polls with women, partly because of his opposition to the Equal Rights Amendment and abortion rights. Three weeks before the election, the former California governor held a news conference to announce that if he had a Supreme Court opening, he would choose a woman.1 He kept the promise the following year by appointing Sandra Day O’Connor to succeed retiring justice Potter Stewart. Five years after that, Reagan appointed the first Italian American justice, Antonin Scalia.
As a candidate in 1992, Clinton made no pledge with respect to a particular type of appointee, but he strongly suggested that he wanted more diversity on the Court, saying that he wanted a Supreme Court that “looks more like America.” He did well with minority voters: 82 percent of African Americans voted for Clinton over incumbent president George H. W. Bush; 61 percent of Latinos voted for him, while only 25 percent cast ballots for Bush and 6 percent for independent candidate Ross Perot.2
By the 1990s, the surging Hispanic population made it obvious that an administration could score political points if it were to nominate someone with a Hispanic background.
Clinton’s first opportunity came shortly after his January 1993 inauguration. Justice Byron White announced in mid-March that he would be retiring. White, a 1962 appointee of President John F. Kennedy’s, had been a scholar-athlete and a decorated navy officer, who won his Court nomination the way many men had, through a direct connection to the man in the White House.
White first found national fame as an all-American halfback at the University of Colorado in the 1930s. Nicknamed “Whizzer,” he went on to play professionally for the Pittsburgh Pirates (renamed the Steelers in 1940) and the Detroit Lions. He was a Rhodes scholar at Oxford University when Kennedy’s father, Joseph, was ambassador to the Court of St. James’s. He had also earned a law degree at Yale, and when JFK became president, he named White deputy attorney general under his brother, Robert F. Kennedy.
In that number two position at the Justice Department, White played a significant role in the nation’s struggle with racial equality. He went to Alabama in 1961 to work with federal marshals to protect the Freedom Riders and other civil rights demonstrators. In one of the most dramatic moments of the turbulent period, White faced down Governor John Patterson, who was allied with the Ku Klux Klan.3 President Kennedy appointed White to succeed retiring Supreme Court justice Charles Evans Whittaker in 1962. Thirty-one years later White said in his letter to Clinton, “I think that someone else should be permitted to have a like experience.”4
At the time, the nine-member Court had only one woman, Justice O’Connor, and one black, Justice Clarence Thomas. Clinton’s desire for diversity fueled the expectation that the Democrat would take a serious look at racial and ethnic minority candidates.
But Clinton’s campaign talk of diversity faded once he was in office. The president initially focused only on white men. He was trying to play it safe and cater to the political middle owing to several controversial efforts on the left in the early weeks of his administration. He lifted the outright ban on gay men and lesbians in the military and had to backpedal on his first two choices for attorney general, Zoë Baird and Kimba Wood, who were eliminated because of questions about their hiring of immigrant workers for household help.5 In another controversy, Clinton dropped University of Pennsylvania law professor Lani Guinier as the proposed head of the Justice Department’s Civil Rights Division because of conservative complaints about her academic writings related to voting rights.6
Clinton dreamed of appointing to the Supreme Court a politician-statesman in the mold of former California governor Earl Warren, who became chief justice in 1953. When the Supreme Court struck down school segregation in the 1954 landmark case Brown v. Board of Education, Warren was presiding over a group of justices who had spent much of their careers in political office.
With that ideal in mind, Clinton turned first to New York Democratic governor Mario Cuomo, the only person Clinton, as a candidate, had publicly named as a possible Court nominee. Cuomo was not enamored with the idea of the cloistered life of a justice, yet he did not initially give Clinton a firm no. Instead, he sent conflicting signals to Clinton advisers. George Stephanopoulos, the White House communications director, said that top aides tried to convince the wavering governor—who had a reputation for playing Hamlet—by arguing that it would offer Cuomo a chance to serve his country and enhance his legacy.7
As Clinton aides held out hope, advocates for other candidates began to think that their favorites might have a shot. The Hispanic National Bar Association had made public its list of recommendations a few days after Justice White announced his retirement, as they did not want a repeat of what they had heard during George H. W. Bush’s presidency, that there was no possible Hispanic contender. In 1991 the White House had been trying to build support for Supreme Court nominee Clarence Thomas, who had alienated minority groups with his opposition to affirmative action as chairman of the EEOC. Bush’s White House counsel, Boyden Gray, and his chief of staff, John Sununu, met with a dozen leaders from such groups as the Hispanic National Bar Association, the Mexican American Bar Association, and the Puerto Rican Bar Association of New York. When some of these leaders asked why a Hispanic was not chosen over Thomas, Gray and Sununu said that the president had been open to such a possibility but could not find a suitable candidate.8
Carlos Ortiz and Dolores Atencio, leaders of the Hispanic National Bar Association, did not wish any White House in the future to make such a claim, and they mobilized to develop a slate that could be turned over to an administration, Democratic or Republican, when an opening occurred on the Court. So when Justice White announced that he would be retiring, the bar association was ready with a list of seven contenders: José Cabranes, then a U.S. district court judge in Connecticut; Joseph Baca, a New Mexico Supreme Court justice; Fortunato Benavides, a former Texas state court judge whom Clinton was putting up for the U.S. Court of Appeals for the Fifth Circuit; Vilma Martínez, a former president of the Mexican American Legal Defense and Educational Fund, who had returned to private practice in California; Dan Morales, the Texas attorney general; Cruz Reynoso, a law professor at the University of California at Los Angeles and former California Supreme Court justice; and Ricardo Urbina, a Washington, D.C., superior court judge.9 Sotomayor, who had donned the black robe less than a year earlier, was not on the list.
None of the seven Hispanic judges and lawyers had reached the national stature Clinton wanted, and he was blunt about it at a meeting with Hispanic policy leaders on June 3, in the middle of his Supreme Court search. Clinton told them he was looking for “a home run” nominee and that none of the Hispanics on the list came close to meeting his criteria.10
When Cuomo made it clear that he wanted to remain in New York’s world of politics and policy, the momentum for an Earl Warren–like figure lost its steam. At the urging of Senator Ted Kennedy, the White House turned to Stephen Breyer, who had been a judge since 1980, when President Jimmy Carter appointed him to the U.S. Court of Appeals for the First
Circuit in Boston. A San Francisco native who graduated from Stanford University and Harvard Law School, Breyer worked for Senator Kennedy on the Senate Judiciary Committee staff and helped write legislation to deregulate the airline industry and establish federal sentencing rules. Senators of both political parties had high regard for Breyer.
Clinton administration lawyers flew up to Boston in early June to interview Breyer, who happened to be recovering from a bicycle accident. Hit by a car while pedaling around nearby Cambridge, he had suffered broken ribs and a punctured lung. In pain and on prescription medication, he still managed to impress the White House aides. After the session, Richard Berke of The New York Times reported, “Several senior White House officials said … that they expected Judge Breyer to be selected and that the first face-to-face meeting [with President Clinton] is his final hurdle.”11
But it didn’t happen. After Clinton’s luncheon meeting with Breyer at the White House, “Clinton just wasn’t enthusiastic,” recalled White House counsel Bernard Nussbaum.12 Breyer’s supporters attributed the lack of chemistry between the two men to Breyer’s weakened condition from the cycling accident. Making matters more difficult, the White House counsel’s office had learned that Breyer had not paid all the taxes for his household help, creating a déjà vu moment for administration officials still smarting from the flubbed nominations of Zöe Baird and Kimba Wood for attorney general. Breyer’s situation was not as serious, but the White House did not want another related storm.
By this point, nearly three months had passed since Justice White had told the president he would be stepping down, and Clinton was in a quandary. He asked assistant White House counsel Ronald Klain to call Janet Reno, the new attorney general, for advice. Reno was ready. She chided them for not looking more seriously at Ruth Bader Ginsburg, a pioneering women’s rights advocate and a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
It was only then that Clinton began poring over materials that aides had gathered on the sixty-year-old Ginsburg. The result illustrates the serendipity of the Supreme Court nomination process and how diligence can pay off.
While the president and his aides had been looking at other possible candidates, a steady stream of supportive letters from law professors and Clinton allies, elicited in part by Ginsburg’s husband, Martin, had arrived at the White House. Senator Daniel Patrick Moynihan, never far from the stage of an important judicial nomination, also had been pressing Clinton to consider the Brooklyn native.
She was the second child of Nathan Bader, a furrier, and Celia, a homemaker. Her mother died from cervical cancer the day before her high school graduation. That heartbreaking experience, along with her regard for her mother’s intellect, contributed to Ginsburg’s feminism. She attended Cornell University, where she met Martin, universally known as Marty. After graduation, they married and attended Harvard Law School together. She earned excellent grades and was named to the Harvard Law Review. She also had her first child, Jane, while she was in Cambridge. When Marty, a year ahead of her in law school, landed a job with a New York law firm, Ginsburg transferred to Columbia University for her third and final year of law school. She had the distinction of becoming an editor on a second law review. When she graduated, she tied for first place in grades in the Columbia class of 1959. But, like other women of her day, Ginsburg had trouble finding a job in the law. She turned to teaching and eventually became the first tenured woman professor at Rutgers University. In 1972 she helped found the American Civil Liberties Union Women’s Rights Project and gained national prominence for her litigation against sex discrimination. Wearing her mother’s earrings and pins for her appearances before the Supreme Court, she argued six cases, winning five of them and helping to develop legal standards for sex discrimination challenges.
Some liberals in Washington, D.C., opposed Ginsburg as a possible successor to Justice White because of her moderate rulings over thirteen years on the District of Columbia Circuit appeals court and her criticism of the constitutional underpinnings of Roe v. Wade, which made abortion legal across the country. It was somewhat surprising resistance, given Ginsburg’s established record of supporting women’s rights. But hard-core liberals favored other candidates, including Judge Patricia Wald, who was also on the District of Columbia Circuit and whose votes were more consistently on the left.
Ginsburg had disparaged the reasoning of Roe as going too far in “the change it ordered” under the right to privacy, and she had insisted that the sweep of the ruling effectively mobilized antiabortion advocates and ultimately hurt women’s choices.13 Her husband sought to reassure administration power brokers that her positions did not threaten liberals. Even as the White House was focused on other possible nominees, Marty Ginsburg persuaded law professors and other friends connected to the Clinton administration to write to the president and his counsel, Bernard Nussbaum, to emphasize that Ginsburg supported abortion rights. Letters poured in, and although they did not inspire the White House to settle on Ginsburg at that point, they provided crucial reassurance when her time came.14
Senator Moynihan had suggested Ginsburg’s name to Clinton in May 1993. According to Moynihan’s account in his personal correspondence, the president had responded, “The women are against her.” Moynihan said he countered, “That is your problem, Mr. President. You have too many friends. You cannot govern without enemies.”15
Only after Clinton’s awkward lunch with Stephen Breyer did the president arrange to meet with Ginsburg. There was potential for more awkwardness with her. No one would have disputed her intellect and seriousness, but the woman who wore her hair pulled back tightly in a short ponytail had a soft voice and had trouble looking people in the eye. She was also known for being so serious that as a youngster her daughter, Jane, made a booklet called Mommy Laughs that recounted the rare episodes when her mother revealed her sense of humor.
As severe or as shy as she seemed, Ginsburg was passionate about the law and could turn on the charm. She did so with Clinton. In the meeting with the president, her warmth and sense of a larger mission surfaced. Hearing about her litigation on behalf of women’s equality, Clinton understood why Moynihan and others had described her as “the Thurgood Marshall of women’s rights.” In another plus for diversity, Ginsburg could also become the first Jewish justice in nearly a quarter century. The last Jew, Abe Fortas, had resigned under pressure in 1969 after a financial scandal.
When President Clinton made Ginsburg’s nomination public on June 14, 1993, the day after their meeting, he emphasized that she would become only the second woman on the Court. In her remarks in the Rose Garden ceremony, Ginsburg paid tribute to her late mother: “I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.” Tears rolled down Clinton’s cheeks as Ginsburg spoke.
The Senate confirmed Ginsburg with a 96–3 vote.
Hispanic leaders had wanted one of their own, but there had been no significant public pressure on the White House to select a minority candidate. The atmosphere was different the following year, when Justice Harry Blackmun made his resignation intentions public, and the drumbeat for a Hispanic nominee grew louder.
Blackmun had been hinting for months that he might step down. The justice best known for authoring Roe v. Wade, the 1973 ruling that made abortion legal across the country, was the last liberal of his generation on the Court. Through much of 1993 and into early 1994 Blackmun had been telling friends he was weary and frustrated. He increasingly disagreed with the conservative majority’s views. One of the strongest public signals of Blackmun’s impending exit had come in February 1994, when the eighty-five-year-old justice denounced capital punishment. In a dissenting opinion when the Court majority rejected an appeal from a Texas death row prisoner, Blackmun said he would no longer “tinker with the machinery of death.”16 He said he would refuse ever again to endorse capital punishment, which suggested that he
was taking stock and considering his legacy. Two months later, he made it official in a letter to President Bill Clinton that said he would retire at the term’s end.
José Cabranes, as it turned out, got a call that April as the news was breaking that Blackmun was going to retire. He heard first from Harold Koh, a Yale law professor who was a former Blackmun clerk with ties to the Clinton White House. Koh admired Cabranes, a former university general counsel, and was close to Cabranes’s wife, Kate Stith-Cabranes, a professor at Yale. Koh believed that Cabranes could have the inside track as Blackmun’s successor, and he urged Cabranes to connect with people who might help him get the attention of the Clinton administration.17
Cabranes had preceded Sotomayor to the federal bench by more than a decade. In 1979, when President Carter named him to the district court, he became the first Puerto Rican federal judge in the mainland United States, a designation he wore proudly. He rarely passed up an opportunity to talk of his parents’ epic journey from the island to the mainland to give their children the opportunities of American life.
Koh was not the only person who thought of Cabranes as a successor to Blackmun. Legal analysts and veteran journalists tossed around the idea that President Clinton might want to make a big statement with the appointment of a Hispanic justice. At the time, Hispanics made up more than 10 percent of the population yet constituted about 3 percent of the nation’s federal judges. But in the weeks that followed, divisions among Hispanic groups and behind-the-scenes liberal opposition undercut Cabranes’s chances.
Sotomayor, still in her thirties, had not made any short list on this round. But she was working her way up in Hispanic networks, speaking at conferences and getting to know legal and political leaders. Through her connections, she was hearing of how liberals and Mexican Americans, the dominant Hispanic group, regarded Cabranes.
Irrespective of politics and ideology, Cabranes had a compelling personal story and record of accomplishment. Born in Mayagüez in December 1940, he had come to the mainland with his parents when he was five. They were middle class: his father, Manuel, had run social welfare programs in Puerto Rico, overseen a home for troubled youths in Mayagüez, and served as the chief probation officer for the federal district court in Puerto Rico. His mother, Carmen, taught elementary school.
Breaking In: The Rise of Sonia Sotomayor Page 9
