Breaking In: The Rise of Sonia Sotomayor (10 page)

For her part, Sotomayor quickly learned to work two sides of the nomination process—as a nominee and as a conduit of information. She reported back to the senator’s staff that the Justice Department lawyers had called attention to her age. But she was ready: she had checked recent Republican judicial nominees and their ages, discovering that several had been nominated when they were in their early and mid-thirties. She had faxed a copy of her findings to Moynihan’s office.
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This was the calculating, hands-on Sotomayor. Unlike many lawyers nominated for judicial office, she was accustomed to pushing overtly for what she wanted. She had long put her career ahead of her personal life, and in these chain-smoking, highly caffeinated days she juggled work at Pavia and Harcourt with monitoring the progress of her nomination.

A neophyte when it came to the ways of the nation’s capital, Sotomayor nonetheless understood the importance of calling Moynihan’s office regularly. Her sense of urgency would set her apart from other nominees. When a month had passed after her interview and there was no word about progress, Sotomayor checked in again with Moynihan’s staff. The point man was Joseph Gale, a former corporate lawyer who had joined Moynihan’s office in 1985 to work on tax issues. Gale had become a key aide to Moynihan on nominations. He and Sotomayor had been students at Princeton at the same time, although they did not know each other well. After evaluating Sotomayor’s and Deborah Batts’s chances, Gale wrote to Moynihan in May 1991 that the Justice Department appeared “to be sitting on” these two district judge recommendations. He said that department lawyers were not returning his calls. He realized that Moynihan needed some leverage.

Gale found it with Michael Luttig, then a thirty-six-year-old assistant attorney general. A few weeks earlier President Bush had nominated Luttig for the U.S. Court of Appeals for the Fourth Circuit, based in Richmond. That powerful regional court handled appeals from trial judges in Maryland, Virginia, North Carolina, South Carolina, and West Virginia. The nomination was a plum for Luttig, a former law clerk to Chief Justice Warren Burger and a law clerk to Justice Antonin Scalia when Scalia was a judge on the U.S. Court of Appeals for the District of Columbia Circuit. In 1991 Luttig was overseeing the Office of Legal Counsel, which produced opinions on the president’s constitutional powers. Gale advised Moynihan to put a “hold” on Luttig, thus preventing his nomination from advancing in the Senate.

Moynihan had seen his recommendations stall before. An earlier choice for a U.S. trial court vacancy in New York had been John Carro. Like Sotomayor, Carro was Puerto Rican, but he was twenty-seven years older and part of the vanguard of the Latino civil rights movement.

Carro had moved from Puerto Rico to New York with his family in 1937, when he was ten years old. He grew up in East Harlem and attended Benjamin Franklin High School, also Moynihan’s alma mater. Carro went to Fordham University and Brooklyn Law School, served in the administration of Mayor Robert Wagner, and in 1968, after Carro had returned to private practice, Mayor John Lindsay named him to the New York Criminal Court. At that time Carro was one of only a few local Puerto Rican judges, and the first from the Bronx. In 1979 he became a justice in the city appellate division.

Not only was Carro well-known in New York legal circles, he also had a strong reputation for liberalism and Latino advocacy. He openly lamented the fact that some Hispanic lawyers lost “their identity and commitment” as they moved up in the profession. “I have seen it time and time again where students profess to want to become lawyers to represent their people and right their wrongs, only to come out of law school and seek a safe job in government or in the corporate world, seldom to be seen in their communities again,” Carro said in the text of a 1980 speech that Senator Moynihan had saved.
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Carro was one of the early leaders of Latino advocacy. Vilma Martínez, president of the Mexican American Legal Defense and Educational Fund, was another. If the president or times had been different, Carro or Martínez might have been in the running for “first Hispanic” at the Supreme Court two decades before it happened.
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But in early 1991 Carro asked Moynihan to withdraw his name for a federal judgeship. “As you know it has been almost three years since you first proposed my name to the president,” Carro wrote to Moynihan in January 1991, referring to the fact that his name had been raised first in the administration of Ronald Reagan: “Since that time I have been interviewed several times by the Justice Department and the FBI has done what I can only assume to be a thorough background check. Still, the President has not sent my name on to the Senate … I can only assume that the President’s failure to do so is because he disagrees with the views I have expressed.”
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Moynihan also was ready to move on. “It is intolerable the way the Justice Department has fiddled with this matter,” he wrote to Carro. “It is our loss, of course … I do not in the least blame you, considering that you must be caught up with mounds of important and interesting cases. We Benjamin Franklin graduates are not getting any younger, and perhaps do well to stay at our posts.”
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Now, in late spring 1991, Moynihan did not want a repeat of the Carro episode. He agreed with senior aide Joe Gale that temporarily blocking the nomination of Michael Luttig could help Sotomayor and Batts. Gale called Jeff Peck, staff director on the Senate Judiciary Committee, chaired by Joseph Biden, a Democrat from Delaware, and asked that no action be taken on Luttig’s nomination.
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“The Luttig card may work for us,” Gale reported back to Moynihan on June 7, 1991. “Jeff Peck advised me that … Attorney General Thornburgh called Senator Biden and made a personal appeal to move the Luttig nomination quickly. Biden’s reply was, in essence, ‘why should I expedite a Justice Department candidate when Justice has been sitting on two of Moynihan’s recommendations and won’t even return his staff’s phone calls?’” Attuned to the trading of favors on Capitol Hill, Gale told Moynihan, “You may want to call Biden to thank him.”
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The maneuvering occurred behind the scenes and was not the grist of daily news reports. Yet Sotomayor absorbed its meaning. A judicial nomination, particularly of a minority candidate, did not move without some pushing and shoving. She was also seeing how nominees could get caught up in situations that had nothing to do with them. Luttig’s nomination for a Richmond-based U.S. appeals court suddenly depended on what happened to a Puerto Rican woman in New York. They were joined, for the time being, because of senators’ prerogatives.

Around this time, Attorney General Dick Thornburgh, who oversaw judicial nominations for President Bush, lamented that the process combined “the intricacies of chess and the audacity of old-fashioned hardball.”
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This was part of the age-old politicking over court nominations. But minorities and women, traditionally on the outside looking in, faced greater resistance. The “old boys’ club” that controlled the process in the 1990s would continue to flex its muscles as Sotomayor’s candidacy moved along.

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As Moynihan pressured the Bush administration to act on his recommendation of Sotomayor, a retirement at the Supreme Court reignited the debate over the racial makeup of the nation’s highest court. Thurgood Marshall, the first African American justice, announced on June 27, 1991, that he would retire. A few days before his eighty-third birthday, Marshall wrote in a letter to President Bush that “advancing age and medical condition” were forcing him to step down. Marshall was even blunter in a news conference with reporters: “What’s wrong with me?… I’m old! I’m getting old and coming apart.”
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Marshall’s face was craggy, and his belly pushed out against his white shirt and dark suspenders. He had served as a justice for twenty-four years and watched in frustration as the Court moved to the right in the 1970s and 1980s with Republican appointees who curtailed racial remedies and scaled back defendants’ rights. Two days before he announced his retirement, Marshall passionately dissented from a decision that overturned two Supreme Court precedents and allowed the use of “victim impact” statements in death penalty cases, which tended to diminish juror leniency for criminal defendants.
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The decision to retire had been difficult for Marshall. A legend in the civil rights movement and the last voice of true liberalism on the Supreme Court, he was not eager to give a Republican president the opportunity to name his successor. But he was sick and weary, and he simply believed his time on the Court was up. At the news conference the day of his retirement, Marshall said that President Bush should strive for the best appointee and that race should not be an overriding factor. He said he did not want the president to select “the wrong Negro” or say “I’m picking him because he is a Negro.”
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Marshall had put his finger on a recurring issue of how a possible nominee’s minority status should affect the selection calculation: Should it be incidental or determinative? And would such an emphasis on race diminish the nominee’s credentials?

Immediately after receiving Marshall’s retirement letter, President Bush interviewed Clarence Thomas, an African American who had served as chairman of the Equal Employment Opportunity Commission (EEOC) under Ronald Reagan and been named by Bush in 1989 to a powerful federal appeals court in Washington, D.C.

The president liked Thomas, who had a friendly demeanor and a booming laugh. Bush found Thomas’s personal story of poverty in segregated Georgia compelling. Still, Bush was concerned that Thomas, at forty-three, had served on the U.S. Court of Appeals for the District of Columbia Circuit for less than two years and might be perceived as inexperienced. Thomas was also controversial because his legal views were exactly the opposite of Marshall’s. Thomas opposed programs that encouraged hiring goals or preferences for minorities—programs that had pushed him and Sotomayor up the ladder in Ivy League schools.

Still, the Republican administration had few options. “For that vacancy, it was a very short list,” recalled Attorney General Thornburgh. “We knew, even though it was not articulated, that the president wanted a minority. The odds-on choice was Clarence Thomas.”
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Bush, who before his election had lived in Houston, asked his top lawyers to look for any possible Hispanic candidates. So in 1991, when the Texas-based judge Emilio Garza, the son of Mexican immigrants, was interviewed for the Marshall vacancy, he became the first Hispanic seriously considered for the Supreme Court.

A graduate of the University of Notre Dame and the University of Texas School of Law who had served in the U.S. Marines for three years, Garza was a bachelor with a quiet, studious demeanor. He had been appointed by President Reagan as a trial judge in 1988, and in 1991 Bush had elevated him to the U.S. Court of Appeals for the Fifth Circuit, covering cases from Texas, Louisiana, and Mississippi. His formal commission to the Fifth Circuit was signed in May, barely two months before he, then forty-three, received the call to fly from San Antonio to Washington to interview for Marshall’s position.

During the interview with Attorney General Thornburgh and White House counsel Boyden Gray, Garza seemed unprepared for the Supreme Court and the Senate confirmation process. “We felt that he needed more seasoning,” Thornburgh said, observing that Gray had been pushing hard for Clarence Thomas and that anyone else would have had to stand out to overcome that preference.
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News accounts reported that some top aides to President Bush liked the idea of a Hispanic nominee “on political grounds,” and that José Cabranes, then a federal district court judge in Connecticut, was on the administration’s list of possible nominees.
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But no Bush aides reached out to Cabranes, an appointee of Democratic president Carter, for background information or to set up an interview. Thornburgh said later that Cabranes would not have been seriously considered by the GOP administration. “He wouldn’t meet our goal for conservatism,” Thornburgh said.
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There was a natural awkwardness in naming Thomas to succeed Marshall: the black seat going to the only black Republican who would have been considered. White House aides were obviously conflicted.
The Washington Post
reported that an administration official said Thomas prevailed over Judge Garza because of a “semiconscious sense … this was a black man to be replaced.” The
Post
wrote that the official (unnamed in the story) “then immediately backpedaled, saying: ‘Strike that. He was the best person.’”
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On July 1 President Bush announced that he had chosen Thomas to succeed Marshall. He called Thomas “the best person at the right time.”
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When reporters questioned how Thomas’s race affected the decision, Bush said, “The fact that he is black and a minority has nothing to do with this sense that he is the best qualified at this time. I kept my word to the American people and to the Senate by picking the best man for the job on the merits. And the fact that he’s a minority, so much the better.” Those presidential references to “best person” and “best man” would exacerbate public cynicism about the process and preoccupy Thomas for years. Writing in his 2007 memoir, Thomas said that five years after his Senate confirmation he asked Boyden Gray, Bush’s White House counsel, “Was I picked because I was black?” Thomas suggested that he believed Gray’s answer was no. Thomas wrote that he was told that his “race had actually worked against” him because the administration did not want to be perceived as picking someone simply for a “black” seat.
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Civil rights groups, including those dominated by Hispanics, were torn over whether to support Thomas, a man who had experienced the discrimination they were fighting but who had spurned their cause in his professional work. Thomas had endured a difficult childhood. His father had abandoned the family, and his mother had few resources to support her three children. After their home in the hamlet of Pin Point, Georgia, burned down, five-year-old Clarence was sent to live with his grandfather, a harsh taskmaster, in Savannah. Thomas often recalled episodes of racial hatred and discrimination from his youth, including what happened on the night of April 4, 1968, when the Reverend Martin Luther King, Jr., was assassinated. Thomas heard a white classmate at the seminary he was attending express great glee at the killing. Thomas said he was losing his interest in the priesthood at the time, and the incident helped prompt him to leave the seminary and transfer to Holy Cross College.