Breaking In: The Rise of Sonia Sotomayor

by Joan Biskupic

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

  4. In 1993, when Ginsburg first became a justice, she took a third-floor suite, too, for the airy atmosphere and to ensure more room for her staff. She later moved down to the second floor, where most of the other justices had chambers.

  5. Sotomayor interview, C-SPAN, September 16, 2009.

  6. David Saltonstall, “Justice Sonia Looking for Law Not Love; Still Humbled by Appointment,” New York Daily News, December 19, 2009.

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

  8. Sotomayor, My Beloved World, 20.

  9. Latoya Peterson, “Towards a More Perfect Nation: Sotomayor Navigates a Race, Gender, and Class Minefield in Pursuit of Justice,” Jezebel, January 5, 2010.

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

  11. Sotomayor interview, C-SPAN, September 16, 2009.

  12. Sandra Guzman, “Her Honor: A Portrait of Justice Sonia Sotomayor,” Latina, December/January 2009.

  13. Ibid.

  14. Author attended oral arguments in Schwarzenegger v. Plata on November 30, 2010; transcript on Supreme Court website at www.supremecourt.gov/oral_arguments/argument_transcripts/09-1233.pdf.

  15. Sotomayor interview, C-SPAN, September 16, 2009.

  16. Supreme Court justices would not speak for the record about Justice Sotomayor. None of the differences revealed to the author rose to the magnitude of the real personality clashes among justices that occurred notably in the early 1900s, when individuals refused to speak to each other.

  17. Justice Stevens told the author in an October 1, 2010, interview that his stumbles in the public announcement of the Citizens United opinion helped lead to his decision that it was time to retire; he remained an active speaker and writer for years after he stepped down.

  18. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).

  19. President Obama’s January 27, 2010, remarks about the potential for foreign contributions was widely seen as an exaggeration. See, e.g., PolitiFact.com at www.politifact.com/truth-o-meter/statements/2010/jan/27/barack-obama/obama-says-supreme-court-ruling-allows-foreign-com/.

  20. Joan Biskupic, “Tensions Rise Between Supreme Court, Politicians,” USA Today, January 24, 2011.

  21. Sotomayor, July 14, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States.”

  22. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).

  23. “Justice Sonia Sotomayor ’79 Delivers the James A. Thomas Lecture at YLS,” report of February 4, 2014. www.law.yale.edu/news/17931.htm.

  24. Arizona v. United States, 567 U.S. ___ (2012).

  25. Arizona v. United States, No. 11-182, April 25, 2012, www.supremecourt.gov/oral_arguments/argument_transcripts/11-182.pdf.

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

  27. Sandra Day O’Connor, “Thurgood Marshall: The Influence of a Raconteur,” Stanford Law Review 44 (1992): 1217.

  28. Sotomayor has stressed her interest in criminal procedure in numerous public appearances, including her lecture at the Yale Law School, New Haven, February 3, 2014; available at http://vimeo.com/85872053.

  29. Berghuis v. Thompkins, 560 U.S. 370 (2010).

  30. Ibid., Sotomayor dissenting.

  31. Sotomayor dissented from several Supreme Court rejections of prisoner appeals in her early years, including Pitre v. Cain, 562 U.S. ___(2010); Gamache v. California, 562 U.S. ___ (2010); and Williams v. Hobbs, 562 U.S. ___ (2010).

  32. Pitre v. Cain.

  33. Calhoun v. United States, 568 U.S. ___ (2013), Sotomayor statement respecting the denial of certiorari.

  34. Woodward v. Alabama, 571 U.S. ___ (2013), Sotomayor dissenting.

  35. Cullen v. Pinholster, 538 U.S. ___ (2011), Thomas majority opinion and Sotomayor dissenting statement.

  36. Perry v. New Hampshire, 565 U.S. ___ (2012), Sotomayor dissenting.

  37. Perry v. New Hampshire, Ginsburg opinion for the majority.

  38. United States v. Jones, 565 U.S. ___ (2012).

  39. See, e.g., Dean Robert Post at Sotomayor lecture, Yale Law School, New Haven, February 3, 2014; available at http://vimeo.com/85872053.

  40. Kagan’s most attention-getting early opinions on behalf of the liberals came in ideologically charged cases, and in dissent. In an Arizona campaign finance dispute, for example, she wrote that although the conservative majority said it had found the “smoking guns” at the center of the dispute, “the only smoke here is the majority’s, and it is the kind that goes with mirrors.” The majority, in an opinion by Roberts, had invalidated a state law that gave extra funds to political candidates who used the public-finance system rather than rely on wealthy private backers.

  41. Jay Kernis, “The 10 Most Intriguing People of 2009,” CNN.com, December 28, 2009; www.cnn.com/2009/OPINION/12/28/kernis.10.most.intriguing/index.html.

  42. “Sonia Sotomayor to Publish Memoir,” http://knopfdoubleday.com/2010/07/12/sonia-sotomayor-to-publish-memoir.

  11. EQUALITY AND IDENTITY

  1. Senator Arlen Specter, a longtime Republican, switched his affiliation to the Democratic Party in April 2009, three months before the hearings.

  2. Arlen Specter statement, July 16, 2009, “Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the Supreme Court of the United States,” before the Senate Judiciary Committee, July 13–16, 2009, Washington, D.C. Author attended the hearings; transcript available through multiple sources including U.S. Government Printing Office.

  3. When questioned about her role in the case, Justice Sotomayor declined to provide any information; a majority of her colleagues, however, related parts of the behind-the-scene events to the author. None of what transpired has previously been made public.

  4. Joan Biskupic, “Analysis: U.S. Battle Over Ballots Averted, but Not Forever,” November 7, 2012, Reuters; www.reuters.com/article/2012/11/07/us-usa-campaign-voting-rights-idUSBRE8A62C520121107.

  5. Regents of the University of California v. Bakke.

  6. Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003).

  7. League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) and Ricci v. DeStefano, 557 U.S. 557 (2009).

  8. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

  9. Breyer was joined in his written dissenting opinion in Parents Involved by Justices Stevens, Souter, and Ginsburg.

  10. Joan Biskupic, “Special Report: Behind U.S. Race Cases, a Little-Known Recruiter,” Reuters, December 4, 2012. www.reuters.com/article/2012/12/04/us-usa-court-casemaker-idUSBRE8B30V220121204.

  11. Details of claim found in Abigail Noel Fisher v. State of Texas, U.S. District Court for the Western District of Texas, amended complaint, April 17, 2008.

  12. Author attended oral arguments in Fisher v. University of Texas at Austin on October 10, 2012; transcript on Supreme Court website at www.supremecourt.gov/oral_arguments/argument_transcripts/11-345.pdf.

  13. Individual justices from both sides of the ideological divide revealed elements of the discussion and the evolution of draft opinions on the condition that information not be attributed to them. Not all of the justices would speak about the case, and Sotomayor herself declined to disclose private negotiations. Internal court documents are kept secret, so a full understanding of the give-and-take remained elusive. It was plain, however, that the case that was argued in October 2012 and seemed headed in one direction took a major turn because of Sotomayor. When asked by the author to describe the attitude Sotomayor had expressed in her draft opinion on the University of Texas program, justices in
timated that it would be revealed in the then-pending Michigan affirmative action case. On April 22, 2014, when Schuette v. Coalition to Defend Affirmative Action was handed down, Sotomayor’s strong feelings indeed were on display.

  14. Sotomayor, My Beloved World, 191.

  15. Justice Thomas included these numbers and other statistics in his concurring statement in the Fisher case, citing an amicus curiae brief from Richard Sander et al.

  16. “A Justice Deliberates: Sotomayor on Love, Health and Family,” interview with Nina Totenberg, NPR, January 12, 2013.

  17. Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009); Edward Blum, who bankrolled the Fisher and Shelby County cases, helped with the financing of this lawsuit, too.

  18. Author attended oral arguments in Shelby County v. Holder on February 27, 2013. Transcript on Supreme Court website at www.supremecourt.gov/oral_arguments/argument_transcripts/12-96_7648.pdf.

  19. Joan Biskupic, “Insight: From Alabama, an Epic Challenge to Voting Rights,” Reuters, June 4, 2012; available at www.reuters.com/article/2012/06/04/us-usacourt-votingrights-idUSBRE85304M20120604.

  20. Shelby County v. Holder, 570 U.S. ___ (2013).

  21. Fisher v. University of Texas at Austin, 570 U.S. ___ (2013).

  22. September 27, 2013, letter to universities from Catherine E. Lhamon, assistant secretary, Department of Education Office for Civil Rights, and Jocelyn Samuels, acting assistant attorney general, Department of Justice Civil Rights Division. Their Q-and-A fact sheet is available at www2.ed.gov/about/offices/list/ocr/docs/dcl-qa-201309.pdf.

  23. Schuette v. Coalition to Defend Affirmative Action, No. 12-682, April 22, 2014.

  12. HER DIVIDED WORLD

  1. Financial disclosure forms on file at the Administrative Office of the U.S. Courts showed that Sotomayor earned advances from Knopf of $1.175 million in 2010 and $1.925 million in 2012.

  2. Author followed Justice Sotomayor on portions of her four-day book tour to Puerto Rico, April 1–4, 2013.

  3. Sotomayor was in the five-justice majority that invalidated a Defense of Marriage Act provision that barred federal benefits for legally married same-sex couples. She separately dissented in a California case when the Court ruled that a state senator lacked legal standing to defend Proposition 8. She was the only justice who aligned in both with key vote Kennedy. United States v. Windsor and Hollingsworth v. Perry.

  4. Amy Argetsinger, “Sonia Sotomayor and Rita Moreno Discuss Men, Moms, Love, Life,” Washington Post, March 12, 2013.

  5. Sotomayor, My Beloved World, 280.

  6. Sotomayor lecture, Yale Law School, New Haven, February 3, 2014; available at http://vimeo.com/85872053.

  7. Michiko Kakutani, “The Bronx, the Bench and the Life in Between,” New York Times, January 21, 2013.

  8. Peter Osnos, “How Sonia Sotomayor’s Memoir Outsold Clarence Thomas’s,” The Atlantic, February 12, 2013; available online at www.theatlantic.com/national/archive/2013/02/how-sonia-sotomayors-memoir-outsold-clarence-thomass/273064/.

  9. See, for example, Florence King, “Where She’s Coming From,” National Review/Digital, April 22, 2013; Damon Root, “Sonia Sotomayor’s Disappointing Memoir,” Reason.com, January 15, 2013.

  10. Root, “Sonia Sotomayor’s Disappointing Memoir.”

  11. President Barack Obama Campaign Video, produced on three-year anniversary of the May 26, 2009, nomination announcement of Sonia Sotomayor to succeed retiring justice David Souter.

  12. Mark Hugo Lopez, “Among Recent High School Grads, Hispanic College Enrollment Rate Surpasses That of Whites,” Pew Research Center, September 4, 2013.

  13. Pew Hispanic Center analysis of national exit poll data 1980–2012.

  14. David G. Savage and Michael A. Memoli, “Sotomayor Scheduling Conflict Leads to Biden’s Early Swearing-in,” Los Angeles Times, January 18, 2013.

  15. Staci Zaretsky, Morning Docket, Above the Law blog, January 22, 2013; http://abovethelaw.com/2013/01/morning-docket-01-22-13/.

  16. “Hurry Up Mr. Vice President, I Have a Train to Catch,” Reuters, January 20, 2013; www.reuters.com/article/2013/01/20/us-usa-inauguration-sotomayor-idUSBRE90J0I520130120.

  17. Ibid.

  18. Emma G. Fitzsimmons, “Sotomayor to Lead Countdown to New Year in Times Square,” New York Times, December 29, 2013.

  19. Mark Hugo Lopez, “What Univision’s Milestone Says About U.S. Demographics,” Pew Research Center, July 29, 2013.

  20. “Sonia Sotomayor’s Dress and Other Revelations…,” Washington Post, December 13, 2013.

  21. Sotomayor lecture, Yale Law School, New Haven, February 3, 2014.

  22. Sotomayor, My Beloved World, 232.

  23. Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013).

  24. Author attended oral arguments in Adoptive Couple v. Baby Girl on April 16, 2013. Transcript on Supreme Court website at www.supremecourt.gov/oral_arguments/argument_transcripts/12-399_53k8.pdf. Before attorney Lisa Blatt, who represented the Capobiancos, could utter a complete sentence, Sotomayor interrupted with protracted questioning, the core of which was: “Is it your position that because that father’s not a custodian, he has no protections whatsoever under [key parts of the law]?” Blatt tried to answer, but Sotomayor cut her off six times, amending the question as she interrupted. Chief Justice Roberts said, “Could I hear her answer, please?” Sotomayor’s intensity did not ease when lawyer Paul Clement began to argue on behalf of baby Veronica in a legal guardian role. Sotomayor interrupted him, asking questions related to the “best interest of the child” standard, a legal calculus used in most states to help determine which parent receives custody of the child. When Clement tried to answer, Sotomayor cut him off twice. When she interrupted Clement a third time, Scalia interjected, telling Clement to “Please finish. Let’s finish.”

  25. Adoptive Couple v. Baby Girl, Alito decision for the majority.

  26. Adoptive Couple v. Baby Girl, Sotomayor dissent. Regarding the law, she highlighted Congress’s goal of trying to prevent Indian children from ending up in homes with no connection to the tribe.

  27. Daimler AG v. Bauman, 571 U.S. ___ (2014).

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

  29. Author interview with Judge Rosemary Pooler, February 6, 2014.

  Selected Bibliography

  ARCHIVES

  George H. W. Bush Presidential Library

  William Clinton Presidential Library

  Senator Daniel Patrick Moynihan Papers, Library of Congress

  Puerto Rican Legal Defense and Education Fund Collection, Hunter College, New York

  Senate Judiciary Committee collections of questionnaires, transcripts, and other materials on nominees Sonia Sotomayor in 2009, to the Supreme Court, and in 1998 to the U.S. Court of Appeals for the Second Circuit; José Cabranes in 1994, to the U.S. Court of Appeals for the Second Circuit; Miguel Estrada in 2003, to the U.S. Court of Appeals for the District of Columbia Circuit; and Elena Kagan in 2010, to the Supreme Court

  NEWSPAPERS, MAGAZINES, JOURNALS, AND PRESS AGENCIES

  Associated Press, Atlantic, Berkeley La Raza Law Journal, Boston Globe, CENTRO Journal, Chicago Tribune, Christian Science Monitor, Congressional Quarterly Weekly Report, Daily Princetonian, Foreign Policy, Hartford Courant, HispanicBusiness, Hispanic National Bar Association Journal of Law and Policy, Hispanic Outlook in Higher Education, Judicature, La Prensa San Diego, Latina, Los Angeles Times, Nation, National Journal, National Review, New Haven Register, New Republic, Newsweek, New York Daily News, New Yorker, New York Review of Books, New York Times, Politico, Reuters, Salon, Slate, Time, USA Today, Wall Street Journal, Washington Post, Yale Daily News

  BOOKS

  Alter, Jonathan. The Promise: President Obama, Year One. New York: Simon & Schuster, 2011.

  Aparicio, Frances R. Listening to Salsa: Gender, Latin Popular Music, and Puerto Rican Cultures. Middletown, Conn
.: Wesleyan University Press, 1998.

  Baker, Peter. Days of Fire: Bush and Cheney in the White House. New York: Doubleday, 2013.

  Balz, Dan. Collision 2012: Obama vs. Romney and the Future of Elections in America. New York: Viking, 2013.

  Bergad, Laird W., and Herbert S. Klein, Hispanics in the United States: A Demographic, Social, and Economic History, 1980–2005. New York: Cambridge University Press, 2010.

  Biskupic, Joan. American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia. New York: Sarah Crichton Books/Farrar, Straus and Giroux, 2009.

  _____. Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. New York: Ecco/HarperCollins, 2005.

  Bowen, William G., and Derek Bok. The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions. Princeton, N.J.: Princeton University Press, 1998.

  Bronner, Ethan. Battle for Justice: How the Bork Nomination Shook America. New York: Union Square Press, 2007.

  Carter, Stephen L. The Confirmation Mess: Cleaning Up the Federal Appointments Process. New York: Basic Books, 1994.

  Clinton, Bill. My Life. New York: Alfred A. Knopf, 2004.

  Coyle, Marcia. The Roberts Court: The Struggle for the Constitution. New York: Simon & Schuster, 2013.

  De Genova, Nicholas, and Ana Y. Ramos-Zayos. Latino Crossings: Mexicans, Puerto Ricans, and the Politics of Race and Citizenship. New York: Routledge, 2003.

  Eisgruber, Christopher L. The Next Justice: Repairing the Supreme Court Appointments Process. Princeton, N.J.: Princeton University Press, 2007.

  Fraga, Luis Ricardo, et al. Latino Lives in America: Making It Home. Philadelphia: Temple University Press, 2010.

  Glazer, Nathan, and Daniel P. Moynihan. Beyond the Melting Pot: The Negroes, Puerto Ricans, Jews, Italians, and Irish of New York City. 2nd ed. Cambridge, Mass.: MIT Press, 1970.

  Gonzalez, Juan. Harvest of Empire: A History of Latinos in America. New York: Penguin Books, 2000.