Breaking In: The Rise of Sonia Sotomayor (19 page)

Such mixed reviews would continue through the years. In 2009 a committee of the American Bar Association, which had been screening Supreme Court nominees for decades, analyzed Sotomayor’s writings and interviewed lawyers who practiced before her. The report said that some found her “aggressive” during oral arguments and expressed concern that the “wise Latina” comment reflected bias. The ABA committee chalked the first issue up to her being “an assertive and direct questioner,” and when it came to the second claim, its panel found no bias in her work.
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It also would become evident that Sotomayor, more than other judges and justices, would be communicating to multiple audiences. In 2001 she was speaking at a conference about Latinos, largely attended by Latinos. In that setting, her remark about the value of a “wise Latina” attracted no attention. Only when a broader audience read her words were her motives questioned.

A few years after the Berkeley appearance Sotomayor observed in a speech to Cornell University students that the differences minorities face do not “magically disappear” after an Ivy League education or professional success. “We people of color have problems that we struggle with throughout our careers, throughout our lives.” She said that it sometimes seemed as if she lived a charmed life, with her Manhattan apartment and opportunities that brought her into the company of Aretha Franklin, Bernadette Peters, and Robert De Niro. Yet, she told the students, “despite everything I’ve accomplished, I’m always looking behind my shoulder, wondering if I measure up.”
11

If the Berkeley speech is viewed in the broader context of her other speeches to student groups, perhaps what one sees most is Sotomayor’s ongoing drive to define herself in a world where she breaks the mold. Asked about that effort in the context of the Berkeley speech, she said, years after becoming a justice, “It’s very hard for people who haven’t lived my life to know what it’s like to have your experiences looked down upon, to be viewed as inferior, to be viewed as not smart enough. You need to affirm that you have value.”

*   *   *

She would, however, have to eat her words about the “wise Latina” during her 2009 Senate confirmation hearings. It was painful for Sotomayor but necessary in the view of her White House supporters. “I want to state up front and unequivocally and without doubt,” she said early in the hearings, “I do not believe any ethnic, racial, or gender group has an advantage in sound judging.”
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Senator Lindsey Graham, a South Carolina Republican and an important member of the Senate Judiciary Committee, put Democrats on notice within days of President Obama’s nomination that he would be seeking an apology for her sentiment that a Latina would reach a better conclusion than a man. For him, she delivered, testifying, “I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.”

That appeased Graham, but not other Republicans. Senator Jeff Sessions, a former federal prosecutor from Alabama, said that the “wise Latina” comment revealed a distaste for the “American ideal” that all judges should be able to “put aside their personal biases and prejudices.”
13

Sotomayor rejected that characterization and continued to minimize her original sentiment. “My rhetorical device failed,” she said. “It failed because it left an impression that I believe something that I don’t … It left an impression that has offended people and has left an impression that I didn’t intend.”

She said she was speaking only of how a person’s varied experiences would naturally affect her view: “Life experiences have to influence you. We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings and put them aside. That’s what my speech was saying.”

Most Senate Republicans were not satisfied. Outside the Beltway, however, the “wise Latina” phrase would take off in 2009. Cartoonists seized it, and not at Sotomayor’s expense.
Roll Call
’s R. J. Matson combined it with Sotomayor’s childhood passion for Nancy Drew detective stories to depict
The Case of the Wise Old Latina
, with Nancy Drew pursuing the “Hardly Boys.” On the mock book cover, the Sotomayor figure searches with a flashlight for the nervous-looking caricatures of Newt Gingrich and Rush Limbaugh. In a cartoon by Mike Luckovich of
The Atlanta Journal-Constitution
, Sotomayor sits before senators and above her are the words “Keep talking. The more you say, the better I look.” In the bubble above one of the senators: “That’s one ‘Wise Latina.’”

For the Supreme Court nominee, the “wise Latina” assertion turned out to be more of a plus than a minus and foreshadowed Sotomayor’s popularity in upcoming years. Rossana Rosado, publisher of
El Diario
in New York and of Puerto Rican descent, wrote in the
Los Angeles Times
: “Women in my professional and personal circles are busy ordering T-shirts and buttons with the phrase. We want to be wise Latinas.”
14

EIGHT

Race and the
Ricci
Case

By 2008, Sonia Sotomayor and José Cabranes had served together on the U.S. Court of Appeals for the Second Circuit for a decade. Their relationship had changed as their fourteen-year age difference became less significant. The young woman who once looked up to Cabranes was now his equal. As she worked from a courthouse in Manhattan and he in New Haven, they remained friends, but ideological differences created tension between them. She had not always taken his advice when she was young, and she was less inclined to be guided by him now. That may have been inevitable. What drew Cabranes to Sotomayor in the first place was that she was certain of herself and pushed hard for what she wanted. And Cabranes was simply more conservative than his protégée, especially when it came to the validity of government actions to right the wrongs of discrimination.

On a February weekend in 2008 Cabranes was at home in New Haven, reading the newspaper, when an article about a new judicial decision caught his attention. He saw that a three-judge panel of the Second Circuit had rejected a discrimination claim brought by a group of white firefighters. The men had sued New Haven city officials who had discarded the results of promotion tests because no African Americans and only two Hispanics had qualified for the rank of lieutenant or captain. The city contended that the test format was flawed and could expose officials to lawsuits by minority firefighters who would argue that they had been disproportionately and unlawfully kept from promotion. The city had long been trying to counteract past discrimination and had hired an outside consulting firm to help design tests that would not, through subtle and inadvertent bias, hurt the chances of minority candidates. That strategy had apparently not worked.

The firefighters’ lawyer, Karen Torre, had told the
New Haven Register
newspaper that she was appalled that the firefighters had received only a cursory, unsigned order rather than a reasoned legal opinion “on … the most significant race case to come before the Circuit Court in 20 years.”
1

Sotomayor was a member of the three-judge panel that had issued the brief order in
Ricci v. DeStefano
, denying the firefighters’ appeal. The other judges were Rosemary Pooler and Robert Sack. Both had joined the Second Circuit as appointees of President Bill Clinton in June 1998, five months before Sotomayor had been confirmed.

The
Ricci
case themes of racial bias and resentment had long threaded their way through Sotomayor’s life. She had benefited from, and continued to support, policies that boosted the chances of minority applicants in education and on the job. And she knew firsthand the controversy over whether such policies led to the hiring of people unqualified for the post. Developments in the case also revealed a different side of her as a judge. Throughout her career Sotomayor had been sure to tread carefully and generally avoided controversy. But in this case she exposed herself to charges of activism or, at least, a cavalier disregard for the firefighters who were alleging discrimination.

The case had been dispatched with a brief order issued on a Friday. It might have escaped public attention. But lawyer Torre had alerted the
New Haven Register
and expressed sufficient outrage to catapult the story onto the front page, catching the interest of one important reader, Cabranes, who could blow the whistle even louder and eventually attract national attention to the case.

Cabranes took provocative steps of his own as he began working behind the scenes to try to have the case heard again by the full Second Circuit. But Torre and her clients, seventeen whites and one Hispanic, did not know that this veteran judge on the Second Circuit was helping their cause and about to set off a brawl. So after the panel’s February 15 order, Torre began work on a petition to the Supreme Court. In her office just steps away from the federal courthouse on Church Street in New Haven, Torre crafted arguments to try to win a Supreme Court review of the firefighters’ claim that city officials had discriminated against them.
2
She filed the petition in early May. Only in June would divisions on the Second Circuit break out into the open.

When they did, the
Ricci
case would not only highlight the conflicts between two jurists and friends, both of Puerto Rican heritage, but also would exemplify Sotomayor’s other allegiances on the Second Circuit. Rosemary Pooler, the senior judge on the
Ricci
panel, had become a dear friend. They were among the first women ever to sit on the New York–based federal appeals court. Two other Second Circuit judges who would later go out of their way to support the three-judge panel’s decision had deep ties with Sotomayor, too.

*   *   *

As the Second Circuit wrestled with the
Ricci
case internally, Democrats Hillary Clinton and Barack Obama, the strongest female and African American contenders ever to vie for the U.S. presidency, were in a tight battle for the party’s nomination. If either Clinton or Obama ended up taking the White House, any subsequent Supreme Court vacancy would likely generate a renewed interest in diversity. President George W. Bush’s two appointees were white men (John Roberts and Samuel Alito), and the High Court was at this point made up of eight men and one woman. All were white except for Clarence Thomas. There had never been a Hispanic appointee, and on any list of possible candidates could be the fifty-three-year-old Sotomayor—a fact not lost on people inside and outside the Second Circuit.

The judges knew the
Ricci
case could take on greater prominence because it dealt with issues of race and diversity, and because Sotomayor was in the middle of it. As it progressed up toward the Supreme Court, commentators focused on Sotomayor’s role and the disagreement between the two prominent Puerto Rican jurists. Cabranes would reject any suggestion that he was trying to call specific attention to Sotomayor and hurt her chances at a time that she might be under Supreme Court consideration. This was the spring of 2008, he would observe, and who knew what would transpire with the presidential election or future Court vacancies.
3

Then age sixty-seven, Cabranes was no longer a rival to Sotomayor in the Supreme Court sweepstakes. He was probably too old to be considered for elevation after the election. Age might have contributed to their dueling views on government-imposed racial remedies, too. Cabranes rose to prominence in the legal profession before affirmative action was common, and he was often the lone Latino in places of power and prestige. For Sotomayor, fourteen years made a huge difference, allowing her to ascend with a class of, as she would say, “affirmative action babies.”

Since her days at Princeton, Sotomayor had lived with the dilemmas and resentment raised by the
Ricci
case. She had climbed the ladder of the law not just because she was smart and worked hard but because people in positions of power (including Manhattan district attorney Robert Morgenthau and U.S. senator Daniel Patrick Moynihan) sought to hire and promote blacks and Hispanics. Sotomayor understood that she was sometimes chosen over white candidates because of her ethnicity, but she objected to contentions that she was not as qualified or as competent because of the boosts she received. She believed she was chosen because she had vaulted herself over academic and professional hurdles that most people, regardless of their color or ethnicity, could not.

Many Americans disagreed with her on the larger issues. They viewed the antibias initiatives begun in the 1960s as discrimination against whites rather than as important ways to help qualified minorities. The white firefighters in New Haven said that the city’s decision to toss the test results perpetuated the very practice of racial discrimination it was seeking to eradicate.

For decades, cities like New Haven had struggled with the legacy of race discrimination in municipal fire and police departments. The question was to what extent municipalities could act to ensure new diversity. For the judges who reviewed New Haven’s actions, the answers came down to the racial disparity of the test results and the city’s real reasons for throwing them out.

The dilemma involved two parts of Title VII of the 1964 Civil Rights Act. One section, aimed at intentional discrimination, forbade employers from hiring or promoting someone based on race or sex, which is known in the law as “disparate treatment.” Another section banned employers from using a test or other practice that caused a “disparate impact” on the basis of race or sex unless the practice was related to the job. These dual mandates put the city of New Haven in a difficult position. The white firefighters sued under the first part, saying they were being denied score-based promotions because of race. Black firefighters had threatened to sue under the second part of Title VII, based on the disproportionately poor scores and their diminished chance for promotions.