Breaking In: The Rise of Sonia Sotomayor (15 page)

“There’s no question that between 1992 and 1994 Cabranes was the most talked about, most prominently talked about Hispanic candidate,” recalled Carlos Ortiz, the Hispanic National Bar Association official who worked for Hispanic appointments to the bench. “[Sotomayor] was an avid reader of all this. She learned to make the right connections. There is no question about that. She knew who to be in contact with, who to tell about her interests. I don’t want to say she was campaigning for the court of appeals, but she let people know.”
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SIX

The Right Hispanic

Washington lawyer Miguel Estrada bristled at what he was hearing from the three attorneys who had come down from New York to his office one spring day in 2002 to talk about his nomination to an important federal appeals court. Officials from a Puerto Rican advocacy group, they had already made their criticism known, one going so far as to say in a letter to senators that Estrada might lack the compassion and open-mindedness to be a good judge. And now they were suggesting that any Hispanic nominated to the upper echelons of the federal judiciary should have strong ties to the community—and be proud of those connections. The Honduran-born Estrada, who had graduated from Harvard Law School, earned a prestigious clerkship at the Supreme Court, and was now specializing in appellate advocacy, believed that candidates for elite judgeships should stand on their legal credentials and their character. He thought an emphasis on his heritage conjured up the worst kind of “identity politics” and the presumption that his views would be determined by his ethnic heritage.

The differences between Estrada and his visitors would hurt his chances for appointment as judge. Other factors were in play as well, including Estrada’s strong conservatism. As President George W. Bush tried to position Estrada for possible appointment as the first Hispanic Supreme Court justice, he became a pawn in the nasty partisan competition over the federal judiciary. What developed would link the fates of Miguel Estrada and Sonia Sotomayor, situated so differently in the eyes of organized Hispanic advocates. Their experiences would reveal what effects prominent Hispanic groups were having in the nation’s capital and what happens when a nominee is opposed or, alternatively, championed.

*   *   *

About a year after Estrada had first been nominated to the U.S. Court of Appeals for the District of Columbia Circuit, he found himself looking across his desk at the three men from the Puerto Rican Legal Defense and Education Fund.
1
Spread out before him were newspaper articles about his nomination. Estrada had made special note of the criticism, some of it from the lawyers who now sat in his Washington, D.C., office.

The three visitors, Carlos Ortiz, Juan Figueroa, and Benito Romano, were Latinos who had made it to the top of the legal profession, just as Estrada had.
2
For Estrada and Ortiz, particularly, the meeting marked a significant moment in their respective efforts related to the judiciary. Estrada, forty, had been nominated by Bush to be a judge on the powerful Washington, D.C., appeals court, which was regarded as a springboard to the Supreme Court. Ortiz, forty-seven, held a job in the top ranks of an international food distributor and was chairman of the board of PRLDEF and a past president of the Hispanic National Bar Association. Ortiz had been working for a decade to persuade administrations in Washington to appoint a Hispanic Supreme Court justice. He had taken it personally when Judge José Cabranes was spurned in 1994 for the top court and had cultivated relations with other Hispanics—including Sotomayor—who might be in a position to be nominated for the next vacancy. Sotomayor had been on PRLDEF’s board before becoming a judge.

Estrada and Ortiz were each highly respected and had wide circles of admirers in the law. Both men exuded polish and professionalism in their demeanor, down to their starched white shirts and pressed dark suits. And at this moment, each man resented what the other was saying. Their competing views related to Hispanic connections and credentials would represent two sides of a debate over who might be in the best position to be nominated as the first Hispanic for the Supreme Court.

Estrada was subjected to far more scrutiny than the typical nominee for the D.C. Circuit because his supporters—and opponents—recognized that President George W. Bush could be positioning him for the High Court. His nomination led to a record seven filibusters in the Senate and exposed ethnic stereotyping and infighting among organizations that had not been seen since the conflict over Judge José Cabranes during the Clinton administration.
Slate
columnist Dahlia Lithwick wrote, “As the debate grows uglier, it’s now becoming a contest among Mexicans, Cubans, and Hondurans about who—to paraphrase
Snow White
—is the most Hispanic of them all.”
3

Estrada’s nomination also reflected the lingering bad feelings among Democrats over the Clarence Thomas confirmation. Democrats recalled how Thomas had been appointed to the D.C. Circuit not long before his 1991 elevation to the Supreme Court—made possible in part because Southern Democrats who might have opposed him were worried about a racial backlash. Critics of Estrada did not want him to be similarly positioned for elevation from the D.C. Circuit. Because of the nation’s growing Hispanic population, the possibility of a first Hispanic justice was even more in the political atmosphere than it had been during the Clinton administration a decade earlier.

Estrada’s father, a lawyer, and his mother, an accountant, divorced when he was young, and he eventually moved to the United States to be with his mother, who worked as a bank examiner in New York. He was seventeen when he arrived, knowing little English, but he caught up quickly and graduated with honors from Columbia College and Harvard Law School. After his clerkship for Justice Anthony Kennedy at the Supreme Court, Estrada became a federal prosecutor in Manhattan and then worked in the U.S. Office of the Solicitor General, which represents the federal government before the Supreme Court. In public service and now at the private law firm Gibson, Dunn & Crutcher, Estrada had racked up fifteen oral arguments before the Supreme Court.

This was a special achievement, for Estrada had a stutter that he had to overcome every time he stepped up to the lectern to argue before the justices, and he sometimes struggled to get out the first word of a sentence. The embodiment of intelligence and determination, he also was a conservative, drawing early opposition not only from Latino groups but also from liberal advocates who had begun to mobilize against him even before President Bush formally nominated him. If he made it to the Supreme Court, they speculated, he would undercut progressive gains on abortion rights, affirmative action, and death penalty appeals.

Another dynamic shaped the debate. Estrada, smart and smart-alecky, was known for saying exactly what he thought, sometimes to the point of offense. In many other parts of the professional world, a contrary or combative personality might not matter. But during a high-stakes judicial nomination, amid the egos of the Senate, a nominee bore the burden of showing deference and respect. Estrada’s regard—or lack of it—for some Democratic leaders would exacerbate his difficulties during the confirmation process.

Carlos Ortiz was born in the Bronx and grew up in Harlem. He attended the City University of New York, became an accountant, and then went to Brooklyn Law School. He became general counsel at a food manufacturer and rose in the leadership of Puerto Rican and Hispanic legal groups that wanted more Hispanic representation on the nation’s courts. Ortiz had made the appointment of the “first Hispanic” justice a personal mission. He insisted that it did not matter whether the first was a Democratic or Republican appointee, although most of the activists pressing for the appointment were in the liberal rather than the conservative camp.

Since the George H. W. Bush administration in the early 1990s, Ortiz and fellow Hispanic advocates had been meeting with presidents and their top aides to promote this cause. It had been at a 2001 session with President George W. Bush’s White House counsel Alberto Gonzales that Ortiz first heard Miguel Estrada’s name as a possible Supreme Court candidate. Ortiz had visited Gonzales soon after Bush assumed the White House to press again for a Hispanic justice. Gonzales mentioned that Estrada could soon be on deck for such an appointment.

Now, in the April 2002 meeting in Estrada’s law firm office, the nominee and his critics from the Puerto Rican Legal Defense and Education Fund, including president Juan Figueroa, thought they might find common ground. The Puerto Rican leaders feared that Estrada was too conservative and out of touch with the Hispanic community. Yet there was no reason, at this point, to think the nominee would be in serious trouble or blocked in the Senate. Estrada had accepted their request for a meeting partly because he knew the third man in the group, Benito Romano. Estrada and Romano had both served as prosecutors in the U.S. attorney’s office in Manhattan. Romano, who had led the office’s anticorruption unit and then temporarily held the top U.S. attorney post, was now on PRLDEF’s executive committee. Estrada would later say he was “delighted” to set up the meeting: “I think of myself as a fair-minded person, who is very concerned that there is anybody out there who may think that I am biased or that I have any character trait that would make me less of a person.”
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Estrada went into the session irritated, however, because PRLDEF had laid out its cards with a disparaging letter to Senate Judiciary Committee chairman Patrick Leahy, a Democrat from Vermont, before the group’s leaders had talked to him. Written just about a month after President Bush had nominated Estrada, the letter raised concerns about “the nominee’s ultra-conservative views.” Without citing specifics, the June 11, 2001, letter, signed by Figueroa, said, “If the views attributed to Mr. Estrada are accurate, they would place his views well outside the mainstream of American political and legal thought.” The group said it was also disturbed that Estrada “appears to have had no involvement or participation whatsoever in the Hispanic community” and asserted that he “may not have the compassion, open-mindedness, sensitivity, courtesy, patience and freedom from bias … to be an effective jurist on any court.”
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The meeting in his office, which Estrada said lasted more than three hours, did not allay those concerns.

Things grew tense when the visitors expressed a series of views that, according to Estrada, boiled down to: “‘You, Mr. Estrada, were nominated solely because you are Hispanic; that makes it fair game for us to look into whether you are really Hispanic. We, having been involved in Hispanic Bar activities for lo these many years, are in a position to learn that you are not sufficiently Hispanic.’ To which my response was—and I felt that very strongly—to point out that the comments were offensive, and deeply so, and boneheaded.”
6

Boneheaded
? Ortiz drew back. He had been warned that Estrada could be dismissive and insensitive to the concerns of the Hispanic community. Now he and the others felt they were seeing those qualities firsthand. “Based largely on our personal observations,” the Puerto Rican advocates would later write in a public assessment, “we now firmly believe that Mr. Estrada lacks the maturity and temperament that a candidate for high judicial office should possess.”
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Estrada was offended. He believed he was being held to a different standard simply because he was Honduran. In his mind, he was as qualified as any high-performing lawyer, regardless of race or ethnicity. He felt he was being squeezed into a mold of what a Latino nominee should be and tested according to criteria he believed were irrelevant to judicial office.

But there was no escaping the bitter history between the two political parties over lifetime appointments to the bench. To Democrats, Estrada represented an assault on liberalism. Since Ronald Reagan’s presidency in the 1980s, Republicans had used the courts to promote their agenda of conservatism and smaller government. They stacked the bench with jurists who thought that such social problems as overcrowded prisons, environmental disasters, and lingering school segregation should be the province of elected legislators, not appointed judges. Perhaps most significantly, they wanted to curtail the right to abortion embodied in the 1973
Roe v. Wade
decision that protected women who sought to end a pregnancy.

As Barack Obama, then a Democratic senator from Illinois, wrote, “Gaining control of the courts generally and the Supreme Court in particular had become the holy grail for a generation of conservative activists—and not just, they insisted, because they viewed the courts as the last bastion of pro-abortion, pro-affirmative-action, pro-homosexual, pro-criminal, pro-regulation, anti-religious liberal elitism.”
8

When he was running for president against Vice President Al Gore, George W. Bush had said he wanted to appoint justices in the mold of Justices Antonin Scalia and Clarence Thomas. Bush had also strongly suggested that he wanted to name the first Hispanic justice, which meant getting someone positioned, possibly on an important lower court such as the D.C. Circuit, for the moment when a vacancy on the Supreme Court occurred.

Bush won the election in 2000 with an assist from the Supreme Court in the dispute over the decisive Florida election results. The Supreme Court’s ruling in
Bush v. Gore
cut off recounts of Florida’s ballots. Despite the saga that stretched from the November 7 election day until the December 12 ruling, Bush arrived in office with a plan for the federal bench, particularly the U.S. appeals courts, and quickly put forward an impressive slate of nominees that included Estrada.

The D.C. Circuit, to which he was nominated, was aptly dubbed the nation’s second-highest bench. It handled challenges to federal regulations and passed judgment on policies covering such matters as the environment, campaign finance, and workplace safety. The stakes for any nominee to that court were high, especially because so many of its judges moved on to the Supreme Court. In 2001, three of the nine sitting justices were from that bench: Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg.