Breaking In: The Rise of Sonia Sotomayor (18 page)

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.”
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Some detractors later called her “racist,” and former House speaker Newt Gingrich, a Georgia Republican, posited, “Imagine a judicial nominee said, ‘My experience as a white man makes me better than a Latina woman.’ Wouldn’t they have to withdraw?”
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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.
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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.

When she stood before any audience, Sotomayor was acutely aware of where she was in her own journey as a Latina, and she knew that her up-from-nothing story inspired others and reinforced her own success.

Sotomayor also would have understood the poignancy of this moment for Latinos across the country. In the early 2000s their numbers were swelling, but their educational and employment opportunities were not keeping pace. The 1990s had brought a series of statewide ballot initiatives aimed at curtailing affirmative action and immigration.

Ethnic tensions were evident at the places where many Latinos were able to find work: poultry plants, carpet mills, and construction sites. The steady economic gains of Latinos were threatened by the efforts to stop educational affirmative action in such states as Texas, California, and Florida.
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Affirmative action had made the difference in Sotomayor’s life, and she wanted it to survive for others. A time would come when she could actually influence its survival, as a justice, but for now, as an appeals court judge out on the stump, she was addressing such dilemmas in only the most cautious terms.

She had been invited to the Berkeley conference by student organizers and Rachel Moran, a Latina law professor who had attended Yale Law School with Sotomayor in the 1970s. Moran, whose mother had come from Mexico, was born in Missouri, grew up in Arizona, and graduated from Stanford University before going to Yale, where she was two years behind Sotomayor. Like the judge, Moran was a rising star in the law. She would become dean of the University of California Los Angeles School of Law in 2010. Moran’s accomplishments as a law professor even in the fall of 2001 prompted Sotomayor to quip, “I warn Latinos in this room: Latinas are making a lot of progress in the old-boy network.”
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Sotomayor built on planks laid in other speeches as she spoke, using her fairly standard device of “Who am I?” She launched into the familiar refrain professing her identity as a Nuyorican. “For those of you on the West Coast who do not know what that term means: I am a born and bred New Yorker of Puerto Rican–born parents who came to the States during World War II.” Speaking in a voice that retained its throaty accent, Sotomayor related the glossy version of her parents’ success and happiness on the mainland, rather than offering the blunt honesty that would come later when she revealed that her father was an alcoholic and her mother cold and distant.

Because she was in California, speaking to an audience that included many Mexican Americans, Sotomayor acknowledged the differences among Hispanics in heritage and culture. She joked that she did not know about tacos until she was in college, where she had a Mexican American roommate.

She segued from “how wonderful and magical it is to have a Latina soul” to tensions among Hispanics and the recurring controversy over affirmative action. She did not mention California’s Proposition 209. But her audience certainly would have been aware that five years earlier, state voters had adopted the referendum that banned California state schools and public entities from considering race in the acceptance of applications or hiring of faculty and staff. It was a potent response to decades-old affirmative action that critics said wrongly discriminated against whites. Even as Sotomayor was speaking in October 2001, white students who had been rejected for admissions at the University of Michigan’s undergraduate and law school programs were challenging policies that gave minorities a boost. Sotomayor knew how it felt to be tested on this issue: in 1978, a law firm partner had asked her whether she had gotten into Yale because of affirmative action.

“We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society…,” Sotomayor told the Berkeley audience, “yet we simultaneously insist that we can and must function and live in a race- and color-blind way. That tension … is being hotly debated today in national discussions about affirmative action.” She left her reference to affirmative action at that. She was trying to encourage, not challenge, this audience. There would be other occasions to accentuate what she achieved through affirmative action and to make sure that it did not go down without a fight.

She turned her attention to the federal judiciary and noted that no Hispanics had ever made it to the U.S. Court of Appeals for the District of Columbia Circuit and a handful of other powerful appeals courts. Miguel Estrada had been nominated to a vacancy on the D.C. Circuit at the time, but Sotomayor made no reference to the Republican nominee. She referred instead to the stalled nominations of women and minorities to appeals courts during the Democratic administration of President Bill Clinton.

Sotomayor usually avoided the overtly political. But this time she said, “I need not remind you that Justice Clarence Thomas represents a part but not the whole of African American thought on many subjects,” referring to the skepticism many African Americans directed toward the conservative Thomas.

Students and professors hearing Sotomayor speak at Berkeley would say later that she was inspiring the Hispanics in her audience. Professor Moran, who extended the invitation, said that Sotomayor’s remarks about the value of a wise Latina “didn’t raise any eyebrows” at the time, that Sotomayor was encouraging students to elevate their aspirations: “She made people feel that she was really there for them.”
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That was part of Sotomayor’s natural pattern in such public settings. She developed a kinship with an audience. She welcomed questions, and if a student who took the microphone sometimes fumbled or faltered through nervousness, it was not unlike Sotomayor to move closer to where the student stood and offer words of encouragement.

Certainly in Berkeley, she was suggesting to students that her story of success could be theirs, too. But she went further to make a qualitative comparison that Latinas might make better decisions and to assert that one’s background necessarily made a difference in making those decisions. “People of color,” Sotomayor emphasized, “will make a difference in the process of judging.” She also called “the aspiration to impartiality” in judicial decision making “just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”

Sotomayor contrasted her views with those of a former colleague, U.S. district court judge Miriam Cedarbaum, a 1986 appointee of President Reagan who had said that judges should transcend their personal sympathies and prejudices for greater fairness and legal integrity. “I wonder whether achieving that goal is possible in all or even in most cases,” Sotomayor said. “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

When Sotomayor began to unspool the observation that would become most controversial during her 2009 Supreme Court nomination, she did it with remarkable casualness. She said she was not sure whether it was Supreme Court justice Sandra Day O’Connor or someone else who originally observed that a wise old man and a wise old woman would reach the same conclusions in the law. (The adage can be traced to Minnesota Supreme Court justice Mary Jeanne Coyne.)
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Whoever first uttered those words about wise judges, Sotomayor said, she disagreed with them because she hoped that a wise Latina “would more often than not reach a better conclusion than a white male.”

A
better
conclusion? That was a startling assertion, as even Sotomayor’s Democratic White House vetters would later concede.

Sotomayor had been voicing versions of this “wise Latina woman” sentiment for years. One of her earliest public references on the topic came in 1994, when she was not yet even on the federal appeals court. Speaking at a convention hotel in Puerto Rico for the 40th National Conference of Law Reviews, she said that she hoped a “wise woman”—not specifically a wise Latina woman—would reach a better conclusion than a man.
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But by the time of the Berkeley speech, Sotomayor had become more forceful in her claim that judges are influenced by their personal experiences and her assertion of the value of her own background. “Personal experiences affect the facts that judges choose to see,” she said, as she implied that she was speaking from her own experience and what she had observed in her colleagues. Yet, she acknowledged, “I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

Intriguingly, she closed on a defensive note, one that suggested that for all her talk of opportunity and success, she was always struggling with the fear that her Puerto Rican identity and experience merited less respect in the world of the white male judiciary: “Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion.”

She felt that suspicion deeply, often from lawyers who practiced before her. Sotomayor had generally good relations with her fellow judges on the Manhattan-based Second Circuit, but reviews from lawyers were mixed, as seen in the commentary of the
Almanac of the Federal Judiciary
, a respected volume on all U.S. judges. Compiled by Aspen Publishers, it listed a judge’s academic and professional background, honors, and noteworthy rulings, along with lawyer assessments based on interviews, and was a common resource for practicing attorneys, law professors, and news reporters. Over the years, the assessments of Sotomayor’s temperament grew increasingly critical. In 2001, the year she spoke at Berkeley, the following lawyer comments were representative: “She can be tough. She’s not rude in any way but she’s exacting.” “I’ve never had a problem with her, but I know that some lawyers don’t care for her temperament.” “She’s very accomplished and clearly very smart, and in truth, I think they’re intimidated.” By 2009, the year she was nominated, the tone was harsher. “She seems angry.” “She is overly aggressive—not very judicial.” “She does not have a very good temperament.” “She is nasty to lawyers.”
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