Breaking In: The Rise of Sonia Sotomayor (11 page)

John Lewis, a Georgia Democrat in the U.S. House of Representatives and a respected civil rights leader, opposed Thomas, asserting that a beneficiary of the civil rights movement was now undermining its goals. “Judge Thomas stands poised to deny to others the kind of opportunities that he has enjoyed,” said Lewis, who as a young activist was beaten bloody during a March 1965 attack by state troopers in Selma, Alabama. “Of course, I have heard the argument that Clarence Thomas cannot ‘forget’ where he has come from and, therefore, he will be sensitive to the plight of the disadvantaged. After all, he grew up poor and fatherless in segregated Georgia. My response to that argument is: Look at his record. He has forgotten before.”
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Just as senators were preparing to vote on the Thomas nomination, Anita Hill, a former employee of Thomas’s at the EEOC and the Department of Education, came forward and claimed that he had sexually harassed her. She alleged that he had made sexually charged comments, including some mentions of breasts and penises, which led shocked senators to delay a vote on his nomination and reopen the confirmation hearings. Thomas angrily denied Hill’s claims and accused the Senate Judiciary Committee of “a high-tech lynching.” He survived, but with the closest Senate vote in more than a century, 52–48. All the Democrats who voted for him were from the South, the opposite of what had happened in 1967, when Southern Democratic senators opposed Marshall. By 1991, blacks had become a core constituency of Southern senators, and Democrats feared alienating them with a vote against Thomas.

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During the fight over Thomas’s confirmation, most lower court nominations stalled—but not that of GOP favorite Michael Luttig. Moynihan released his “hold” when the Bush administration promised a second round of Justice Department interviews for Sonia Sotomayor. In late July 1991, after Thomas had been nominated but before the confirmation hearings began, the Senate confirmed Luttig, and he was commissioned on August 2. Luttig temporarily remained with administration lawyers behind the scenes, helping to prepare Thomas for his Supreme Court confirmation hearings.
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Moynihan vigorously opposed Thomas and was one of the Democrats who insisted on postponing Senate action until after Anita Hill testified. But he also continued to press on Sotomayor’s behalf. She could not have asked for a more effective political godfather. “He wasn’t the typical horse trader,” recalled Moynihan’s chief of staff Robert Peck. “He didn’t spend a lot of time on the floor. He didn’t have a lot of friends in the Senate. But if he wanted something … he was prepared to keep banging” on it.
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The New York Democrat hounded the administration, fellow senators, and his friends in the press on Sotomayor’s behalf. Moynihan wrote on August 8, 1991, to Arthur O. “Punch” Sulzberger, publisher of
The New York Times
, “It is absolutely the case that the people we send over to Justice are treated almost as suspects … It is degrading. And I wonder that most are willing to go through with it. Out of loyalty I like to think to the committee of New York lawyers that chose them.” He complained that Sonia Sotomayor and Deborah Batts “were given the deep freeze.”
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Sotomayor’s nomination moved forward after William Barr succeeded Thornburgh as attorney general in late summer 1991.
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For extra measure, Moynihan put another “hold” on two other GOP favorites for federal courts of appeals, prompting White House counsel Gray to write to Bush asking him to sign a nomination for Sotomayor—but with a caveat. Gray made sure that Bush knew that Moynihan had been blocking action on the appeals court nominations “to extract a district court judge from us,” and he advised the president to sign the Sotomayor nomination but hold off making it official until the administration had gotten word that the two appeals court nominees were confirmed.
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The deal satisfied both sides, and Bush nominated Sotomayor on November 27, 1991. For a district court nominee in the 1990s, the hardest part was over. Everything else would be fairly routine. After the White House had submitted her name to the American Bar Association earlier in 1991 for an evaluation, Sotomayor received a “Qualified” rating. (That was above the rarely given “Not Qualified” rating, but not the top “Well Qualified” assessment she would receive in 1997 and 2009 for her respective Second Circuit and Supreme Court nominations.)
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When the Senate Judiciary Committee held a hearing on her district court nomination in June 1992, Sotomayor was more than ready. Accompanying her were her mother, Celina; her mother’s future husband, Omar Lopez; Sotomayor’s brother, Juan, a physician, and his wife and children; a college roommate; and two other friends.

Democratic senator Edward M. Kennedy of Massachusetts presided over the hearing for Sotomayor and two other nominees, also women. It was a first—three women at one hearing—Kennedy said, reminding the audience that in the early 1990s most judicial nominees were men.
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New York senators Moynihan and D’Amato appeared before the committee on Sotomayor’s behalf. Moynihan introduced her, beginning with her academic credentials from Princeton and Yale. When Senator D’Amato spoke, he referred to her “great, great story of what America can be and is about.” There followed an exchange with senior Republican committee member Strom Thurmond, of South Carolina, that revealed the “good ol’ boy” tone that permeated hearings:

“Senator, I want to congratulate you on recommending such outstanding ladies,” Thurmond said.

“Thank you very much,” D’Amato responded.

“I have always known you were a ladies’ man, anyway,” Thurmond added.

“I’m going to leave that alone,” Kennedy said to laughter in the room.

“That is not in the record, I hope,” D’Amato quipped.
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When Senator Kennedy began the questioning, he said he was impressed by Sotomayor’s activities on behalf of the disadvantaged. She responded by talking about her twelve-year membership on the board of the Puerto Rican Legal Defense and Education Fund and its work promoting bilingual education in the public school system. “I … believe that those of us who have opportunities in this life must give them back to those who have less,” she said. The following week, on June 11, 1992, the Senate Judiciary Committee recommended her nomination to the full Senate. On August 11, eighteen months after Moynihan had recommended her, Sotomayor was confirmed and became the first Latina on a federal court in New York.

Sotomayor’s confirmation was a testament to her determination and serendipitous connections. In the 1970s and 1980s she was one of the few Hispanic women within the sphere of such New York power brokers as District Attorney Morgenthau. She earned an appointment to the New York City Campaign Finance Board and witnessed big-city politics, giving her the kind of insight Sandra Day O’Connor developed in statehouse politics in Arizona before being named a state court judge and then a Supreme Court justice in 1981.

When Sotomayor moved from Morgenthau’s office to a firm focused on commercial law litigation, she knew it would round out her experience. But, equally important for her goal of a judgeship, that move connected her with partner Botwinik, a friend of the chair of Moynihan’s judicial screening committee, when the drive was on for minority and women candidates.

Nearly two decades later President Obama would use this appointment to assert, “It’s a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the U.S. District Court by a Republican President, George H. W. Bush.”
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The truth was that the Bush administration really did not want her. She was but one part of multiple deals engineered by Moynihan.

None of the politicking of this first judicial nomination was lost on the street-smart Sotomayor. Less than two years after she was sworn in as a district court judge, she told a conference focused on women in the judiciary, “It is a political appointment. [People] have to make themselves known. You simply do not put in an application.”
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FIVE

A President and Politics

When Sonia Sotomayor was sworn in as a federal trial judge for the Southern District of New York in the fall of 1992, she asked longtime mentor José Cabranes to administer the oath. It was a role without fanfare. As a federal judge in Connecticut, Cabranes, in fact, had to obtain special court permission to wear the robe and act as a judge in New York’s Southern District. He was warned to read just the oath and not say anything more at the district investitures, which were known for their brevity. After a clerk read the district court commission and Cabranes administered the oath, the chief judge asked Sotomayor to sign a piece of paper attesting to her pledge. As protocol dictated, she said, “It is done.”

The whole ceremony took less than ten minutes, but Cabranes would not have declined the invitation of Sotomayor, who had continued to tap him for advice as she had run the gauntlet of politics necessary to win President George H. W. Bush’s nomination and the Senate confirmation. After a reception, Sotomayor flew to New Orleans for a weekend with girlfriends.

Within two years of that first appointment for Sotomayor, Cabranes appeared to be on deck for a higher court. But he would not find a ready network of political support. And he would face hostility from advocacy groups that would ultimately shift toward Sotomayor.

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.
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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.
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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.
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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.”
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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.
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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.
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