Breaking In: The Rise of Sonia Sotomayor (32 page)

In an essay for the
The Atlantic
magazine, Peter Osnos, founder and editor at large of the PublicAffairs publishing house, differentiated Sotomayor’s book from Clarence Thomas’s account of his life in
My Grandfather’s Son
: “In tone and content, Thomas’s book reflected his dour persona … In contrast, Sotomayor has charmed audiences at signings across the country with a natural warmth and humor, plus shown the patience to sign every copy purchased by turnouts as high as a thousand people at a time.”
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Osnos observed that Sotomayor benefited from her collaboration with Zara Houshmand, an Iranian American poet who helped write the book.Sotomayor said that Houshmand listened to her stories and those of her family and friends to select the most compelling tales.

It was a rare critic who did not embrace the memoir on its own terms. Yet, indicative of how Sotomayor remained a polarizing political figure, some commentators used their reviews of
My Beloved World
to renew complaints about affirmative action or remind readers of Jeffrey Rosen’s “case against” her in
The New Republic
at the time of her nomination.
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Writing in
Reason
magazine, senior editor Damon Root referred to Rosen’s interviews with lawyers who griped about Sotomayor’s temperament and ability, asserting, “And although the [Rosen] story failed to derail Sotomayor’s nomination, it cast a shadow of doubt that continues to follow her on the bench. Sonia Sotomayor does not mention this troubling episode in her new memoir,
My Beloved World
, nor does she do much to dispel any lingering liberal doubts.”
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But liberals broadly embraced Sotomayor’s book and her early record as a justice. On most cases, her vote was on the left, and the attention she called to the plight of criminal defendants was welcome. Many of the “lingering doubts” came from conservatives who simply believed she had gotten where she was only because she was Hispanic.

There was no ignoring the double-edged consequences of her ethnic identity.

That was seen in the final months of President Barack Obama’s 2012 reelection campaign. His strategists used Sotomayor to their advantage as the first Hispanic appointee to the Supreme Court, creating a political ad that flashed back to May 26, 2009, when Obama stood beside her in the White House East Room amid gold silk draperies, swag valances, and cut-glass chandeliers. “After completing this exhaustive process,” the president says, “I have decided to nominate an inspiring woman who I believe will make a great justice.”
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With captions in Spanish, the three-minute advertisement mixed Obama’s tribute to Sotomayor with the voices of Latina women praising his choice. “My glass ceiling just shattered,” says one. “It is very important to have a Latina on the Supreme Court,” says another. A Puerto Rican woman refers to her toddler daughter and says, “It means no dream is too big for her to dream.”

The ad, unusual for highlighting a president’s Court appointment, underscored the value of the Sotomayor choice and offered a reminder that judicial appointments are enduringly political.

How could the president, any candidate really, not try to woo the Hispanic vote?

By late 2012, Hispanics numbered 54 million in the United States, 17 percent of the total population. Hispanics were also reaching milestones that hardly could have been imagined when Sotomayor was young. College enrollment for Hispanic high school students had skyrocketed since her years at Princeton. In 2012, for the first time in the nation’s history, a higher percentage of recent Hispanic high school graduates were enrolled in college than whites, 49 percent, compared with 47 percent of white non-Hispanic high school graduates.
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President Obama and Vice President Joseph Biden won reelection—with 71 percent of the Hispanic vote. Republican challenger Mitt Romney, a hard-liner on immigration policy, did particularly poorly with this demographic, drawing the lowest percentage for a GOP candidate since Bob Dole in 1996. In the crucial battleground state of Florida, a Pew Hispanic Center study found that the Democratic ticket carried the Hispanic vote by 60 percent, compared with 39 percent for the Republicans. (Hispanics made up 17 percent of the electorate, up from 14 percent in Florida in 2008.) Pew Research attributed Obama’s strong showing among Hispanic voters to the state’s growing non-Cuban population, notably the Puerto Rican population of central Florida.
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After the reelection victory, Vice President Biden asked Justice Sotomayor to administer the oath of office for the January 20, 2013, inaugural. She agreed, but imposed a condition. She needed the event moved up four hours earlier than the traditional noon ceremony. Sotomayor had committed to a book signing in Manhattan that afternoon and wanted to make sure she got to it.

Biden’s aides were miffed. The
Los Angeles Times
, the first to report that Biden would not be sworn in with Obama, cheekily observed that Sotomayor would not reveal her plans, that she simply “had somewhere else to be.” Court officials would not confirm that Sotomayor’s schedule was dictated by the book event posted on the Barnes & Noble website.
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A writer on the legal blog
Above the Law
remarked, “What was more important to Justice Sonia Sotomayor than swearing in Joe Biden as VP at noon on Sunday? Signing books at Barnes & Noble in New York City. Not so wise Latina.”
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But Sotomayor’s move passed with little public interest or real press scrutiny. Even Vice President Biden accepted the situation matter-of-factly, telling his 120 guests as she rushed off on the morning of the inauguration, “I wanted to explain to you what a wonderful honor it was and how much out of her way the justice had to go. She is due in New York … We are going to walk out, you see her car’s waiting so she can catch a train I hope I haven’t caused her to miss.”
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When Sotomayor arrived at the Manhattan Barnes & Noble, she told the two hundred people waiting that she was touched by their enthusiasm. She knew it was her personal story, not legal opinions, that resonated with these audiences, and that may be her enduring legacy. As she addressed the crowd, many of whom had stood in line for hours to see her, she said, “That’s an awesome amount of love to feel.”
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That turned out to be Manhattan on a small scale for Sotomayor.

Almost one year later, on December 31, 2013, she was in Times Square. She had been chosen to lead the sixty-second countdown and pressing of the button to drop the ball commemorating the start of 2014. She was the first Supreme Court justice ever selected for the event, which was witnessed by one million people in Times Square and millions more on television. In the prior two years, the designated special guests had been Lady Gaga and the Radio City Rockettes.
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Unlike at an earlier time, when Sotomayor might have been invited to an event because of her ethnicity and appear as the lone Hispanic, she was chosen because of her inspiring life and celebrity. Several other Hispanic entertainers happened to be in the international spotlight that evening. Rául de Molina, the entertainment news host of Univision Networks, also appeared. The Spanish-language Univision was besting such long-standing broadcast networks as ABC and NBC during summer sweeps periods with viewers ages eighteen to forty-nine.
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Divisions among cultures in America were fading, and Sotomayor was—as usual—in sync with national change. She no longer was breaking barriers as a Puerto Rican. She was breaking barriers as a justice. A few weeks before the New Year’s Eve festivities, she had been a presenter at the nationally televised Kennedy Center Honors. There, she offered the tribute for soprano and international opera star Martina Arroyo. Sotomayor was the first justice to appear at the Honors since the annual show began thirty-six years earlier. The
Washington Post
Style section reported that she received a standing ovation as she emerged onstage wearing a blue gown with a plunging neckline.
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As midnight neared on December 31, 2013, a beaming Sotomayor began shouting the countdown, then pressed the ceremonial button to send the glittery ball down. Television screens flashed between Sotomayor and pop star Miley Cyrus.

*   *   *

All the media attention, the public adoration, and the exclusive invitations testified to Sotomayor’s place in American life.

When she was asked at the February 2014 Yale Law School forum about her wide travels across the country, she first declared unguardedly, “I wanted to sell books.” But then she turned philosophical, saying that she hoped she could “add value … to the public’s perception of the justices.”
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As she increased her public profile, her voice became stronger on the Court. The Indian child custody battle, heard in 2013 as Sotomayor was in the thick of her book promotion, demonstrated that. The child had been placed at birth for adoption with a white family but then, at age two, ordered by a South Carolina court to be returned to her father, a member of the Cherokee tribe. It was a case that especially roused Sotomayor, perhaps because of the focus on children, with whom she said she often identifies more than with adults. She wrote in her memoir that she had considered adopting, but concerns about her diabetes stopped her. “There remained the fear that I might not be around long enough to raise a child to adulthood,” she said. “Ultimately, the satisfaction of motherhood would be sacrificed.”
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In the Court case, the baby’s biological parents, Dusten Brown and Christina Maldonado, had never married, and Brown, part Cherokee, agreed to relinquish his parental rights rather than pay child support. Maldonado arranged for the Capobiancos, a white couple from South Carolina, to adopt the child, whom they named Veronica.
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The following year, Brown decided to assert his parental rights, citing the protections of the Indian Child Welfare Act. The 1978 law was intended to stop Indian children from being moved from their tribal surroundings. South Carolina courts ruled for Brown, emphasizing the federal interest in preserving the tribes’ cultural identity.

When the Supreme Court took up the Capobiancos’ appeal, the question was whether Brown, as an unwed father lacking legal custody, was a “parent” under the Indian Child Welfare Act. Justice Sotomayor questioned the lawyers in such an intense, confrontational way that Chief Justice Roberts and Justice Scalia, at separate points, implored her to stop interrupting and let the attorney at the lectern answer.
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In the end, the Court ruled 5–4 in favor of the Capobiancos. Writing for the majority, Justice Alito said that Brown “abandoned the child before birth and never had custody of the child,” so he was not covered by the 1978 law.
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Sotomayor dissented, with Justices Scalia, Ginsburg, and Kagan, and in part of her opinion she criticized the majority for focusing “on the perceived parental shortcomings” of Brown. “In an ideal world,” she wrote, “perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children.” Perhaps recalling her own childhood in the Bronx, she continued: “They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities … But we do not live in such a world.”
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Alito responded that Sotomayor had offered “a torrent of words” that failed to hide the fact that her interpretation of the law “simply cannot be squared with the statutory text.” He said her interpretation of parental custody would lead “even a sperm donor” to be covered by the law.

A few months later Sotomayor found herself writing alone in a case and incurring even more withering criticism. The dispute tested whether a multinational company accused of a role in human rights abuses could be sued in a United States court. It arose from Argentina’s “Dirty War” era, 1976–83, and claims by twenty-two Argentinians that Daimler’s Argentine subsidiary had collaborated with the government in killings and torture. The legal question was whether the constitutional guarantee of due process of law barred a federal court in California from jurisdiction over Daimler because of the scant connection to the atrocities and perpetrators. Writing for an eight-justice majority, Justice Ginsburg said that the company’s link to the United States was insufficient to allow jurisdiction.

Sotomayor agreed that Daimler could not be sued in the case, but she said that Ginsburg’s rationale was “unmoored from decades of precedent” and could “produce deep injustice” in other cases involving multinationals. Ginsburg responded that Sotomayor had selectively read the record in the case. “No fair reader” of the key precedent would have interpreted it as Sotomayor did, Ginsburg insisted. Joined by the seven other justices, Ginsburg’s complaint about the Sotomayor opinion in the case of
Daimler AG v. Bauman
was notable for its length over several pages of footnotes. Sotomayor simply responded that they were the ones misreading court precedent.
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For weeks, Sotomayor had seen drafts of Ginsburg’s opinion as it circulated among the justices. She knew she was about to be a public target. But she would have the courage of her convictions—perhaps stubbornly, misguidedly—yet with confidence enough to be the one in an 8–1 vote.

A week before the Daimler opinion was handed down, in January 2014, Sotomayor told an audience of more than a thousand that to bolster her courage, she often thought about the worst thing that could happen when she undertook a challenging endeavor. She would conclude: “You know something … so what?”
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She was willing to stand out. She always had, anyway. She would not mute her personality, and she was not interested in brokering compromise. Other justices had their antennae up for how to persuade a colleague to their point of view. Breyer telephoned colleagues or wandered into chambers hoping to talk out an issue. Kagan appreciated the spirited back-and-forth that could accompany the drafting of opinions and tried to penetrate the roots of colleagues’ reasoning to persuade them.