Breaking In: The Rise of Sonia Sotomayor

by Joan Biskupic

  Sotomayor agreed that Daimler could not be sued in the case, but she said that Ginsburg’s rationale was “unmoored from decades of precedent” and could “produce deep injustice” in other cases involving multinationals. Ginsburg responded that Sotomayor had selectively read the record in the case. “No fair reader” of the key precedent would have interpreted it as Sotomayor did, Ginsburg insisted. Joined by the seven other justices, Ginsburg’s complaint about the Sotomayor opinion in the case of Daimler AG v. Bauman was notable for its length over several pages of footnotes. Sotomayor simply responded that they were the ones misreading court precedent.27

  For weeks, Sotomayor had seen drafts of Ginsburg’s opinion as it circulated among the justices. She knew she was about to be a public target. But she would have the courage of her convictions—perhaps stubbornly, misguidedly—yet with confidence enough to be the one in an 8–1 vote.

  A week before the Daimler opinion was handed down, in January 2014, Sotomayor told an audience of more than a thousand that to bolster her courage, she often thought about the worst thing that could happen when she undertook a challenging endeavor. She would conclude: “You know something … so what?”28

  She was willing to stand out. She always had, anyway. She would not mute her personality, and she was not interested in brokering compromise. Other justices had their antennae up for how to persuade a colleague to their point of view. Breyer telephoned colleagues or wandered into chambers hoping to talk out an issue. Kagan appreciated the spirited back-and-forth that could accompany the drafting of opinions and tried to penetrate the roots of colleagues’ reasoning to persuade them.

  Sotomayor’s former appeals court colleague, Judge Rosemary Pooler, said, “She’s less interested in having her antennae up than coming to her own decision.” And when she does, “she doesn’t think that’s up for discussion.”29

  That could not help but raise the question of how effective this luminary in American life would be on the law of the land. She defined herself by being different. As Justice Sotomayor occupied a suite of offices on the third floor, above her colleagues on the second, she had a separate-floor mentality to go with it. She operated in her own world, with the book tour, public speeches, and increasingly with solo dissenting or concurring opinions. Other justices moved toward colleagues. Sandra Day O’Connor, for example, had famously organized group lunches, theater excursions, and other outings to build collegiality and bridges for substantive negotiations.

  Sotomayor had learned to be effective in setting herself apart. And now she had no trouble breaking away from colleagues to make uncomfortable assertions, whether regarding the possible injustice of shielding corporations from claims linked to human rights abuses or, as she did a year earlier, the likelihood that Alabama judges were swayed by politics in their death penalty decisions.

  Whatever her legacy in the marble confines of the Supreme Court, it seemed bound to be eclipsed by her more public role. Her timing was stunning. At every turn, she was ready for an America that was ready for her. She had arrived on the national stage, at the very top of the United States judiciary, as Hispanics were increasingly visible in all facets of life. She had reached prominence because of what she represented to a nation that still believed in the American dream.

  Notes

  Please note that some of the links referenced in this work are no longer active.

  1. LIFE OF THE PARTY

  1. The ceremony marked the first time that the New York City Housing Authority had named a development for a living former resident. Information on the naming and event drawn from interviews and the New York City Housing Authority Journal 40, no. 5 (June/July 2010).

  2. The program for the event was styled like a Supreme Court case: Thirty-Eight Law Clerks vs. The Justices of the Supreme Court of the United States. The annual clerks’ party is closed to news media; the invitation and information about the June 2010 event was provided to the author by individual justices and others who attended.

  3. Sotomayor is widely regarded as the first Hispanic justice on the United States Supreme Court. Some critics have countered that Justice Benjamin Cardozo, who served from 1932 to 1938 and was a Sephardic Jew with ancestors from Portugal, was the Court’s first Hispanic. The term “Hispanic” was not in use during his era, and whether people from Portugal would be labeled Hispanic remains the subject of controversy.

  4. Justices Sandra Day O’Connor and Clarence Thomas wrote memoirs as sitting justices, but only after they had served, respectively, twenty-one and sixteen years on the bench.

  5. Although this book uses such terms as “Hispanic” and “Latino,” the author recognizes that these labels are recent descriptors for people who would identify themselves primarily as, for example, Puerto Rican, Mexican, or Cuban. An October 2013 Pew Research Center study found that most Hispanics had no strong preference between the terms “Hispanic” and “Latino,” and among those who expressed a slight preference, “Hispanic” was preferred.

  6. Sonia Sotomayor, panelist at “Women in the Judiciary: A Woman’s View from the Bench,” a Practising Law Institute program broadcast live via satellite on June 9, 1994. Copy of program supplied to author by PLI.

  7. Tribe, who was backing Elena Kagan at the time, later told the author he was “totally wrong” in doubting Sotomayor and said she “has contributed splendidly” to the Court.

  8. Author interview with Gregory Craig, January 22, 2013.

  9. Johnson engineered the vacancy for Marshall by leading Justice Tom Clark to step down and avoid any conflict of interest after Johnson appointed his son Ramsey Clark as attorney general.

  10. “Latinos in the United States,” Population Reference Bureau, December 2010 Report. The bureau said that while the Hispanic population grew 37 percent between 2000 and 2009, adding nearly 26 million people, the overall U.S. population grew by about 9 percent, rising from 281 million to 307 million.

  11. Sonia Sotomayor appearance in Denver, August 26, 2010, before high school and college students, “Diversity and the Legal Profession”; C-SPAN broadcast available at www.c-span.org/video/?295200-1/diversity-legal-profession.

  12. Sotomayor, My Beloved World, 237–38.

  13. Rehnquist said he was inspired by the comic opera Iolanthe.

  14. Pew Research Center Hispanic Trends Project, October 22, 2013; most Hispanics polled were unable to name the person they considered “the most important Hispanic leader in the country today.” The top vote-getters for those who could name someone were Sonia Sotomayor and Marco Rubio, at 5 percent each; others named were Los Angeles mayor Antonio Villaraigosa, at 3 percent, and U.S. representative Luis Gutiérrez of Illinois, at 2 percent. Three-quarters of Latinos living in the United States said that their community needs a national leader.

  15. President Obama broke from this pattern in July 2013, when he spoke out about the shooting death in Florida of an unarmed black youth, Trayvon Martin, after his killer was acquitted by a jury. “When Trayvon Martin was first shot, I said that this could have been my son. Another way of saying that is Trayvon Martin could have been me thirty-five years ago.”

  16. See, e.g., Charlie Savage, “Despite Filibuster Limits, a Door Remains Open to Block Judge Nominees,” New York Times, November 29, 2013. Savage noted that White House counsel Kathryn Ruemmler said President Obama was seeking “smart and thoughtful” judges who had the “potential to persuade,” and she referred to Justice Kagan as a model.

  2. “LIFE IS ALL RIGHT IN AMERICA … IF YOU’RE ALL WHITE IN AMERICA”

  1. See, e.g., Paul Hofmann, “200,000 Watch as Puerto Ricans Parade: 30,000 Join March—Rockefeller and Kennedy Hailed,” New York Times, June 27, 1966; Martin Gansberg, “Hispanic Parade Attracts 25,000: Rhumba and Cha-Cha Tunes Serenade the Marchers,” New York Times, June 5, 1967.

  2. Lacey Fosburgh, “19 Police Injured at Parade Here: 20 Arrested as Puerto Rican Groups Interrupt March in Protest Over Status,” New York Times, June 14, 1971.

  3. Son
ia Sotomayor appearance in Denver, August 26, 2010, “Diversity and the Legal Profession.”

  4. Ibid.

  5. José A. Cabranes, “A Puerto Rican Perspective,” in Minority Opportunities in Law for Blacks, Puerto Ricans & Chicanos. edited by Christine Philpot Clark (Law Journal Press, 1974).

  6. Edgardo Meléndez Vélez, “The Puerto Rican Journey Revisited: Politics and the Study of Puerto Rican Migration,” CENTRO Journal 17, no. 2 (Fall 2005).

  7. “Sugar-Bowl Migrants,” Time, August 11, 1947.

  8. Glazer and Moynihan, Beyond the Melting Pot, 87.

  9. Celina Baez background drawn from U.S. Census Bureau information, Sotomayor speeches on file with the Senate Judiciary Committee for 2009 nomination, and Sotomayor’s My Beloved World.

  10. Sotomayor, Lehman College Graduation Speech, June 3, 1999, New York; copy in Senate Judiciary Committee 2009 nomination file.

  11. Sotomayor, My Beloved World, 53.

  12. Hernandez v. Texas, 347 U.S. 475 (1954).

  13. Hernandez v. Texas.

  14. The 1848 Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, caused large swaths of Mexican territory to become part of the United States and eventually offered Mexicans living there the opportunity to become American citizens.

  15. “Zoot Suits” referred to the colorful outfits and broad-brimmed hats in fashion among some young Mexican American men at the time. For a history of such incidents and the exclusion of Mexican Americans, see also Kevin R. Johnson, “Hernandez v. Texas: Legacies of Justice and Injustice,” UC Davis Law, Legal Studies Research Paper No. 19 (2004).

  16. Suro, Strangers Among Us, 86.

  17. Sonia Sotomayor quoted in New York City Housing Authority Journal 40, no. 5 (June/July 2010).

  18. Sotomayor, My Beloved World, 45.

  19. Sotomayor, Smithsonian Associates Evening Lecture, January 8, 2014, George Washington University, Washington, D.C.

  20. Sotomayor, “Urban Health Plan” speech, New York, September 21, 2007; copy in Senate Judiciary Committee 2009 nomination file.

  21. Sotomayor, My Beloved World, 13–14.

  22. Joan Biskupic, “Sotomayor Gets Frank on Diabetes; Shares Her Story to Inspire Young Type 1 Patients,” USA Today, June 22, 2011.

  23. Sotomayor, My Beloved World, 3.

  24. Ibid., 88.

  25. Katzenbach v. Morgan, 384 U.S. 641 (1966), Cardona v. Power, 384 U.S. 672 (1966).

  26. White v. Regester, 412 U.S. 755 (1973).

  27. “Chicago’s Proud Puerto Ricans,” Chicago Daily News, June 5, 1965.

  28. See, e.g., “500 Police Keep Watch on N.W. Side,” Chicago Tribune, June 15, 1966; and “The Cause of the Riot,” Chicago Tribune editorial, June 15, 1966.

  29. “Racial Outbreaks Flare on E. 10th: 30 Held as Puerto Ricans Throw Missiles at Police,” New York Times, August 31, 1964; Richard J. H. Johnston, “A Calm Settles over East 10th St.: Policemen and Broken Glass Are Lone Echoes of Fray,” New York Times, September 1, 1964.

  30. Homer Bigart, “Renewed Violence Erupts in 2 Puerto Rican Areas,” New York Times, July 26, 1967; Peter Kihss, “Puerto Rican Story: A Sensitive People Erupt,” New York Times, July 26, 1967.

  31. Kihss, “Puerto Rican Story.”

  32. The median number of school years for Puerto Rican students in 1960 was 7.5. Neil J. Smelser, William Julius Wilson, and Faith Mitchell, eds., America Becoming: Racial Trends and Their Consequences, vol. 1, National Research Council, Commission on Behavioral and Social Sciences and Education, 2001.

  33. Glazer and Moynihan, The Melting Pot, 91.

  34. Sonia Sotomayer quoted in New York City Housing Authority Journal 40, no. 5 (June/July 2010).

  35. Author interview with Charles Auffant, May 24, 2011; Auffant became a professor at Rutgers School of Law.

  36. Author interview with Theodore Shaw, October 2011.

  37. Sotomayor, My Beloved World, 106.

  38. Ibid., 107.

  39. Ibid., 120–121. See also Kathy Kiely, “No Dissent: A Locomotive for Sotomayor ’76,” Princeton Alumni Weekly, June 1, 2011.

  40. Sotomayor, My Beloved World, 122.

  41. Ibid., 119.

  42. Sotomayor viewed 12 Angry Men at a Fordham Law Film Festival in Manhattan on October 17, 2010.

  3. “I AM THE PERFECT AFFIRMATIVE ACTION BABY”

  1. Sotomayor, My Beloved World, 126.

  2. Catherine Lawson, “A Touch of Class,” Mademoiselle, September 1986.

  3. Pew Research Center Hispanic Trends Project, August 20, 2012.

  4. President Lyndon B. Johnson, Commencement Address at Howard University, June 5, 1965; www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp.

  5. Ibid.

  6. Bowen and Bok, The Shape of the River, 6–7.

  7. Of the total number of judges President Carter sent to U.S. district courts, 13.9 percent were black and 6.9 percent were Hispanic, compared with President Ford’s 5.8 percent black and 1.9 percent Hispanic district court appointees. President Nixon’s appointees were 2.8 percent black and 1.1 percent Hispanic. Of President Johnson’s total appointments to district court, 3.3 percent were black and 2.5 percent Hispanic. Sheldon Goldman, “Carter’s Judicial Appointments: A Lasting Legacy,” Judicature 64, no. 8 (March 1981).

  8. During the Johnson administration 5 percent of his appeals court appointees were black and none was Hispanic.

  9. Roy Reed, “Johnson Calls Nominee ‘Best Qualified,’ and Rights Leaders are Jubilant—Southerners Silent on Confirmation,” New York Times, June 14, 1967.

  10. Carter, The Confirmation Mess, 5.

  11. Twenty other senators, from the South and North, did not cast a vote. According to the August 20, 1967, Congressional Record, some of those twenty missing senators were away on business and said they would have voted for Marshall; www.senate.gov/reference/resources/pdf/240_1967.pdf.

  12. See, e.g., Sotomayor, “The Genesis and Needs of an Ethnic Identity,” keynote speech to Connecticut Hispanic Bar Association, New Haven, October 24, 1998; copy in Senate Judiciary Committee 2009 nomination file.

  13. Sotomayor, My Beloved World, 128.

  14. Sonia Sotomayor appearance at Cornell University Law School, October 8, 2008; available at www.youtube.com/watch?v=c4hZloq_5S0.

  15. Sonia Sotomayor, Smithsonian Associates Evening Lecture, January 8, 2014, George Washington University, Washington, D.C.

  16. Sonia Sotomayor, “A Judge’s Guide to More Effective Advocacy,” keynote speech, 40th National Law Review Conference, March 19, 1994, Condado Plaza Hotel, Puerto Rico.

  17. Sonia Sotomayor appearance in Denver, August 26, 2010, “Diversity and the Legal Profession.”

  18. Peter Winn, “The Education of Sonia Sotomayor,” Washington Post, July 12, 2009.

  19. Sonia Sotomayor letter to the editor, “Anti-Latino Discrimination at Princeton,” Daily Princetonian, May 10, 1974.

  20. “Puerto Ricans Find Bias at Princeton,” New York Times, April 23, 1974.

  21. According to The Daily Princetonian, a response from HEW came quickly, as a representative from the Department of Education’s civil rights office met with Sotomayor and other Latino students. Episode recounted in Mendy Fisch, “Sotomayor ’76 Helped Shape University’s Affirmative Action Practices,” Daily Princetonian, July 16, 2009. Available at http://dailyprincetonian.com/news/2009/07/sotomayor-76-helped-shape-universitys-affirmative-action-practices/.

  22. Ogletree, All Deliberate Speed, 41.

  23. Ibid., 52. Other black and Latino students, transplanted from small California farming towns or large urban hubs, similarly chafed and adapted in their own ways at elite colleges. Ruben Navarrette, Jr., a Mexican American from the San Joaquin Valley, wrote of his difficult assimilation and alienation at Harvard in A Darker Shade of Crimson. He questioned whether the Ivy League schools took only the “cream” of minority applicants, ultimately undermining the goals of affirmative action and generating ethnic infighting.

&nb
sp; 24. The Pyne Prize is awarded to the “senior who has most clearly manifested excellent scholarship, strength of character and effective leadership.” See Emily Aronson, “Elvin, Valcourt Named Pyne Prize Winners,” February 22, 2012; www.princeton.edu/main/news/archive/S32/98/72M47/index.xml?section=topstories. See also Ruth Stevens, “Princeton Alumna, Trustee Confirmed as Supreme Court’s First Latina Justice,” August 6, 2009; www.princeton.edu/main/news/archive/S24/95/61C10/index.xml?section=topstories.

  25. Thomas, My Grandfather’s Son, 75.

  26. Ibid., 75–76.

  27. Ibid., 87. Thomas eventually landed a job in the Missouri attorney general’s office, headed by Republican John Danforth, who would become a U.S. senator. Danforth would become a crucial advocate of Thomas when he was nominated to the Supreme Court in 1991.

  28. Sonia Sotomayor appearance at Cornell University Law School, October 8, 2008.

  29. Author interview with Guido Calabresi, September 30, 2013.

  30. Sotomayor, My Beloved World, 180.

  31. “30th Anniversary of Justice O’Connor’s Appointment,” session with Justices O’Connor, Ginsburg, Sotomayor, and Kagan, Newseum, Washington, D.C., April 11, 2012; available at www.c-span.org/video/?305386-1/30th-anniversary-justice-oconnors-appointment.

  32. Text of Cabranes’s remarks to the Connecticut Hispanic Bar Association, Hartford, November 1, 2003.

  33. Sonia Sotomayor, “José Cabranes Intro,” Puerto Rican Bar Association dinner honoring Cabranes, undated, circa 1996; copy in Senate Judiciary Committee 2009 nomination file.

  34. Sotomayor, My Beloved World, 188; Stuart Auerbach, “Law Firm Apologizes to Yale Student,” Washington Post, December 16, 1978.

  35. Sotomayor, My Beloved World, 188–89.

  36. Auerbach, “Law Firm Apologizes to Yale Student.”

  37. Author interviews with Carmen Shepard, February 7 and 9, 2011.

  38. Sotomayor, My Beloved World, 183.

  39. Zeke Miller, “At Yale, Sotomayor Was Sharp but Not Outspoken,” Yale Daily News, May 31, 2009; available at http://yaledailynews.com/blog/2009/05/31/at-yale-sotomayor-was-sharp-but-not-outspoken.