Breaking In: The Rise of Sonia Sotomayor

by Joan Biskupic

  But then, after a lunch break from the committee hearing, Estrada told senators he needed to elaborate on his comments. He said there could have been circumstances under which he believed an applicant had an extreme view that would do a disservice to Kennedy. If the candidate would not follow the justice’s wishes because of the candidate’s strongly held views, Estrada posited to senators, he would not believe the candidate had the proper ideology for Kennedy.

  “I think we have some credibility problems,” Schumer said, accusing Estrada of changing his story.

  That charge prompted Senator Hatch, the ranking Republican on the committee, to interject, “This is really offensive … This is a question of fairness.” Hatch said that Estrada should not have to be confronted with anonymous sources. As he complained about how Estrada was being treated, the senator said, “The extreme left-wing Washington groups go after judicial nominees like kids after a piñata. They beat it and beat it until they hope something comes out that they can then chew and distort … Detractors have suggested that because he has been successful and has had the privilege of a fine education, he is somehow less than a full-blooded Hispanic.”23

  Estrada met with a weary look Republicans’ assertions that he was the Latino embodiment of the American dream. Few Latinos came to his defense. Not many even knew the hearings were under way. The Pew Hispanic Center and other groups that regularly tap into ethnic sentiment did not poll on Estrada’s nomination to the appeals court. Democrats realized that they could criticize him without fear of fallout. That included Senator Feinstein, from the heavily Mexican American state of California. Feinstein, more moderate than Schumer, might have been inclined toward Estrada because she had supported other controversial Bush nominees. But she was suspicious about his answers regarding the screening of law clerks for Justice Kennedy, and she complained that Estrada had stonewalled the committee.

  As often happened in judicial nomination fights, Feinstein conjured the bitter memories of other Democratic candidates who Republican senators had stalled, including Mexican American Enrique Moreno, a Harvard-educated El Paso lawyer who had been nominated by President Clinton for a U.S. appeals court in Texas and waited years for a vote that never came. She mentioned Moreno even as she protested, “I want to clearly state this is not an issue of retaliation, as some have suggested. It is true that the Republican Senate did block a number of very qualified Hispanic nominees—female nominees, and so on—under President Clinton.”24

  Committee chairman Leahy raised Sonia Sotomayor’s name and recalled the tactics used when she was being considered for the Second Circuit in 1998. “She was supported by every Hispanic organization,” Leahy declared, underscoring what mattered to Democrats. “She had first been appointed to the federal bench by the first President Bush,” he continued. “This should have been very easy, but every time we wanted to bring her up for a vote on the floor, there was an anonymous hold on the Republican side. Nobody wanted to step forward.”25 Sotomayor got her vote only because GOP senator D’Amato interceded.

  Some news reporters emphasized Estrada’s personality in their accounts of his nomination. “Mr. Estrada turned out to be a difficult, even prickly interview subject when he made courtesy calls on some Hispanic groups and when he appeared before the Senate Judiciary Committee,” Neil Lewis reported in The New York Times. “His friends say he is principled and cannot avoid speaking straightforwardly, which means he is unwilling to provide benign, even courteous, responses when a line of questioning strikes him as foolish.”26 And much struck Estrada as foolish. His brutal honesty and wit drew some people to him but put off others.

  Estrada might not have helped himself at some points, but Senate Republicans shepherding his nomination stumbled more. Part of their problem was bad timing. Three weeks after Bush put Estrada’s name up, Republicans lost their majority in the Senate when Vermont’s Jim Jeffords dropped his Republican affiliation and switched to Independent.

  The GOP leadership remained in turmoil during key moments of the Estrada nomination even after Republicans won back the Senate majority in 2002.

  Republican senator Trent Lott of Mississippi was forced to give up his leadership post because of racially insensitive remarks made during a celebration for long-serving senator Strom Thurmond. At a birthday party for the South Carolina Republican, who was turning one hundred in December 2002, Lott declared that if Thurmond had been elected president in 1948, the country would not have “all these problems over all these years.” Thurmond had been a segregationist candidate. Amid public outcry Lott apologized, saying his “poor choice of words conveyed to some the impression that I embrace the discarded policies of the past.”

  Fellow Republicans ousted Lott and chose William Frist of Tennessee to be Senate majority leader. Less skilled at hardball nomination politics, Frist was unable to advance Estrada’s nomination, and Senator Lott took the extraordinary step of telling a reporter he disapproved of Frist’s handling of the situation.27

  Frist, a surgeon who had graduated from Princeton two years before Sotomayor and trained at Harvard Medical School, vowed to get Estrada confirmed. “I want people to see that we don’t fold, period, when we’re right on principle,” he said. “I know that half of my own caucus thinks we’ve prolonged this too long. But before this is over it will show that patience pays off, just like it does in medicine—persistence, when you know deep inside that you are right on an issue.”28

  But Democrats were more skillful, and they repeatedly blocked a straight up-or-down vote on Estrada’s nomination in February 2003. For days, they engaged in a filibuster, standing at their individual wooden desks in the well of the Senate. They criticized Estrada and also filled time by talking about everything from the ongoing war with Iraq to personal tales from their childhoods. Robert Byrd of West Virginia recalled how in 1934 he used chewing gum and candy to court a girlfriend who eventually became his wife.29

  The filibuster could have been stopped only by a “supermajority,” the votes of 60 of the 100 senators. At the time, the Senate consisted of 51 Republicans, 48 Democrats, and 1 Independent. Neither side had an incentive to compromise. Meanwhile, some Hispanic groups, such as the Mexican American Legal Defense and Educational Fund, kept up the pressure against Estrada. “Estrada has neither demonstrated that he understands the needs of Latino Americans nor expressed interest in the Latino community,” Antonia Hernández wrote in a commentary piece for the Los Angeles Times. “Simply being a Latino does not make one qualified to be a judge.”30

  Hernández and others drowned out Estrada’s support from such Republicans as Linda Chavez, a Mexican American who had been a top aide in the Reagan and first Bush administrations. Chavez complained that liberal groups that traditionally sought racial and ethnic considerations “in everything from college admissions to judicial appointments now want the right to define just who qualifies for inclusion in their racial and ethnic categories.”31

  * * *

  In the spring of 2003, two men who had stood on risers at the White House with Estrada when President Bush unveiled his initial slate of judicial nominees, and who had controversial records of their own, were confirmed. Jeffrey Sutton, the former Ohio solicitor general, was approved by the Senate in a vote of 52–41 for the U.S. Court of Appeals for the Sixth Circuit. John Roberts, the former deputy U.S. solicitor general under the first President Bush, was confirmed by a voice vote to the D.C. Circuit.

  A few months later, Estrada pulled out. He had been filibustered seven times. “I believe that the time has come to return my full attention to the practice of law and to regain the ability to make long-term plans for my family,” he wrote to President Bush. Bush had been personally urging Estrada to stick it out, but the ordeal was taking a toll on Estrada and his wife. They believed that people were going through their garbage looking for information, watching them, and spying on them. They had been trying to start a family, and Laury miscarried.32

  From the start, Estrada had quarreled
with the White House on how officials should portray him. They highlighted his ethnicity, but that ended up exacerbating his difficult situation. Rather than rally behind him, Hispanics who kept up with developments in his nomination generally opposed it. Veteran Mexican American commentator Carlos Conde wrote, “It was about pitting Latinos against Latinos with one side claiming that Estrada was not sufficiently Latino to merit the post and the others arguing that his detractors were clueless about the genesis of being Latino.” Conde, who was an aide in the Richard Nixon White House and worked on the campaigns of President George H. W. Bush, questioned whether Estrada was nominated for a federal judgeship because of his talent or because he was the conservative type of Latino Republicans were seeking.33

  * * *

  If Estrada had ended up on the D.C. Circuit, he might have been in a position to be considered for the Supreme Court openings that occurred in 2005, when D.C. Circuit judge Roberts was elevated and when Third Circuit appeals court judge Samuel Alito was nominated. The first vacancy occurred when Justice Sandra Day O’Connor announced her retirement on July 1, 2005. O’Connor, then seventy-five, said that she wanted to spend more time with her husband, John, who was suffering from Alzheimer’s disease. President Bush chose Roberts, who, after he graduated from Harvard Law School, had earned a clerkship with Associate Justice William Rehnquist and then rocketed through the Reagan and first Bush administrations.

  In early September 2005 Roberts was heading toward his Senate Judiciary Committee hearings for the associate justice spot vacated by O’Connor when Chief Justice Rehnquist died from complications related to thyroid cancer. President Bush immediately decided to nominate Roberts, who had won initial rave reviews from senators and the media, for the open chief justice spot.

  To fill the O’Connor vacancy, Bush selected White House counsel Harriet Miers, a longtime friend from Texas. Miers, a graduate of Southern Methodist University’s law school who had had virtually no constitutional law experience, was criticized by Bush’s own Republican allies, who thought she could not be counted on as a conservative. Robert Bork, a former appeals court judge and conservative lightning rod who had been rejected by the Senate for a Supreme Court appointment in 1987, called the Miers nomination “a disaster on every level.”34 He argued that she was not qualified and would set back the conservative cause. Miers pulled out, and President Bush nominated Samuel Alito, a low-profile Trenton, New Jersey, native and Yale Law School graduate who had worked in the U.S. Office of the Solicitor General, served as a U.S. attorney, and in 1990 been appointed to the Philadelphia-based U.S. Court of Appeals for the Third Circuit. Liberals, including Senator Barack Obama, opposed Roberts and Alito but could not muster enough Democratic support to block their confirmations.

  The Senate confirmed Roberts by a vote of 78–22 on September 29, 2005, and Alito by a vote of 58–42 on January 31, 2006, mainly along party lines.

  * * *

  Estrada continued his appellate advocacy at the private firm of Gibson, Dunn, gaining more clients and increasing his arguments before the High Court. On one occasion the justices decided to appoint him specially to argue a case for them—certainly a seal of approval.35

  Yet on Capitol Hill his 2003 rejection for the D.C. Circuit continued to stir passions among Democrats and Republicans who invoked his name to make their respective points about the rough-and-tumble politics of race and ethnicity that persisted in judicial nominations.

  Democrats pointed to the fact that Estrada had no record as a judge and few legal writings to assess. They said he evaded their questions, and they complained that he was impertinent. Republicans would not let go either. They believed he was a victim of racial politics, pure and simple.

  In 2009 at least one Republican senator told Sonia Sotomayor that Estrada, not she, deserved to be up for Supreme Court appointment.

  “No Republican would have chosen you, Judge,” Lindsey Graham of South Carolina told her during a Senate Judiciary Committee hearing. “That is just the way it is. We would have picked Miguel Estrada. We would all have voted for him.”36

  The Estrada ordeal remained an open wound the next year, nearly a decade after he had been nominated by President Bush, when Elena Kagan appeared before the Senate Judiciary Committee as a Supreme Court nominee.37

  Kagan and Estrada had been study partners during their student days at Harvard Law School, and, despite his politics, he heartily endorsed her 2010 nomination by Democratic President Obama.

  “I think it’s one of the great tragedies for the country that he was never able to sit on an appellate court,” Senator Graham told Kagan, who in turn testified of her friend, “He is qualified to sit as an appellate judge. He’s qualified to sit as a Supreme Court justice.”

  When Oklahoma Republican senator Tom Coburn asked Kagan if, were she a sitting senator, she would have voted for Estrada, she said yes. But then, as Coburn was thanking her for the answer, Kagan slipped in, “I hope I would have, anyway. You know, who knows what it feels like to be one of you guys and to be subject to all the things that you guys are subject to.”

  It was a nod to the truth that politics, whether in the Senate, at the White House, or among advocacy groups, always won out.

  SEVEN

  The Wise Latina

  Like most Americans of a certain age, Sonia Sotomayor remembers where she was on September 11, 2001, when al-Qaeda terrorists attacked the United States. She had a physician’s appointment in midtown Manhattan, and like many New Yorkers, she made her way to safety through streets clogged with people and filled with smoke and ash. As she staggered to her home in Greenwich Village, she passed people with their car doors open, their radios relaying the latest news. She heard a report—false, it turned out—that a courthouse had been hit, and she worried that she had lost old colleagues.

  Six weeks after 9/11, as the nation was still engulfed in the chaos and deaths of nearly three thousand people from the al-Qaeda hijackings, Sotomayor flew to California as previously scheduled. She had been invited to deliver the opening speech for a two-day symposium at the University of California, Berkeley, entitled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.”

  As one of the most prominent Latinas in the country at the time, U.S. appeals court judge Sotomayor was a natural choice for Latino organizers of the event, which would address such topics as “The Politics of Appointment” and “The Need to Increase the Role We Play as Lawyers, Judges, and Professors.” The conference also commemorated the fortieth anniversary of the first Latino appointment to the federal bench. In 1961 President John F. Kennedy had named Mexican American Reynaldo Guerra Garza, a University of Texas Law School graduate and Brownsville attorney, to be a U.S. district court judge in the Southern District of Texas. President Jimmy Carter elevated Garza to the U.S. Court of Appeals for the Fifth Circuit in 1979. A little over two decades later, in 2001, the number of Latinos on the federal bench was still disproportionately low compared with their population. At the same time, as civil rights and defense organizations pointed out, Latinos, like African Americans, were caught up in the criminal justice system in disproportionately high numbers.

  Sotomayor’s speech at the conference on October 26 drew scant news attention in a nation still consumed by the devastation at the hands of al-Qaeda. But eight years later, her comments at Berkeley—one phrase relating to a “wise Latina,” in particular—would dominate commentary on her nomination to the Supreme Court.

  Sotomayor gave the “wise Latina” speech without fanfare on a Friday afternoon in a standard state university auditorium, but critics charged that what she said was anything but ordinary. Her assertion: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”1 Some detractors later called her “racist,” and former House speaker Newt Gingrich, a Georgia Republican, posited, “Imagine a judicial nominee said, ‘My e
xperience as a white man makes me better than a Latina woman.’ Wouldn’t they have to withdraw?”2

  The “wise Latina” remark would take on a life of its own and elicit competing responses typifying the enduring reactions to Sotomayor. Ultimately, the remark would become a rallying cry for Hispanics. Sotomayor’s comments at this unguarded moment in Berkeley would also foreshadow chords she would strike after she became the most public justice ever. With candor and an everywoman style, she would separate herself from the usual elite world of the judiciary, emphasizing her disadvantaged background, her lingering feelings of being “different,” and a life of seized opportunities.

  Sotomayor’s speech at Berkeley, given as the new president George W. Bush was nominating more conservative judges, offered a liberal counterpoint to the view that personal life experiences do not inform judicial decisions. In his election campaign, Bush had held up as a model Justice Antonin Scalia, who insisted that judges should keep themselves out of the equation and look only to the original meaning of a constitutional provision when it was adopted, whether in the eighteenth-century text or at the time of amendment. Sotomayor had endorsed the idea that the Constitution’s meaning evolves and judges’ decisions are affected by many factors, including their backgrounds and ideologies.3

  Yet Sotomayor, who in 2001 was three years into her tenure on the U.S. Court of Appeals for the Second Circuit, was a pragmatist, and on that October afternoon in Berkeley she had not set out to give a weighty speech about jurisprudence. With her customary style, she was interweaving her aspirations about judging with childhood references: nights playing Bingo with her grandmother Mercedes, meals of pigs’ feet and beans. These childhood experiences permeated her adult life, no matter how far she moved from life in the Bronx.