Breaking In: The Rise of Sonia Sotomayor (14 page)

White House aides continued to tell reporters that Cabranes was under consideration.
36
This probably appeased the Hispanic National Bar Association without alienating such groups as MALDEF, because leaders of the latter knew that their opposition to Cabranes was being heard by the right people inside the administration. A top lawyer to Clinton recalled the president saying, “I’m not going to appoint someone the groups don’t even want!”

As Senator Mitchell, Secretary Babbitt, and Judge Arnold fell out of consideration, Judge Breyer’s chances improved. Lloyd Cutler, who succeeded Nussbaum as White House counsel in the spring of 1994, was an old friend of Senator Kennedy’s and pushed for Breyer, too. Republican senators who had known Breyer when he worked as a Judiciary Committee staffer were putting in a good word. President Clinton began to appreciate the advantage in a nominee with bipartisan support, especially at a time when he was trying to pass major health-care legislation and was increasingly ensnarled in scandals related to the Whitewater land development project in Arkansas.

The president was running out of political capital, and Breyer became the politically expedient choice. Making history no longer mattered. Clinton realized that he would not gain many political points with the Breyer nomination, but he certainly would not lose many either.

Then, partly because of pressure from Hispanics who supported him, Cabranes was tapped for elevation to the New York–based U.S. Court of Appeals for the Second Circuit. Connecticut U.S. senators Christopher Dodd and Joseph Lieberman, longtime Cabranes backers, engineered a compromise with New York senator Moynihan to help Cabranes and to protect their respective pieces of Second Circuit turf.
37
Clinton announced that he was submitting Cabranes’s name for the Second Circuit two weeks after he nominated Breyer for the Supreme Court.
38
The Senate approved Cabranes unanimously on August 9, 1994, less than two weeks after the Senate confirmed Breyer by a vote of 87–9.

Some Hispanic leaders were not mollified. Wilfredo Caraballo of the Hispanic National Bar Association wrote later, “We believed the promise that the face of justice was finally going to include ours … There exists a moral imperative that all who are among the judged have the right to expect that they may be represented in the faces of those who judge.”
39

Hispanics also disagreed with one another on strategy. Raul Yzaguirre, chair of the National Council of La Raza, which, like the Mexican American Legal Defense and Educational Fund, resisted Judge Cabranes, said, “They said we all have to be centered behind Cabranes and nobody else, and we didn’t think that was a winning strategy.”
40
Some in the Hispanic community reacted negatively to such sentiment. Howard Jordán, managing editor of
Critica
, a journal of Puerto Rican policy and politics, declared at the time, “The real blame goes to President Clinton, but I think the situation was exacerbated by the inability of the Hispanic community to come together with one voice.”
41

In the end, Clinton’s Supreme Court choices did not appear to cost him Hispanic voters. Two years after the Breyer appointment, Clinton won reelection, with 72 percent of the Hispanic vote, over Republican senator Bob Dole, who drew only 21 percent. When Clinton first ran for president, in 1992, he attracted 61 percent of the Hispanic vote as he claimed victory against George H. W. Bush, who then drew 25 percent of the Hispanic vote.
42

Cabranes realized that even if the reelected Clinton got another chance to fill a vacancy on the Supreme Court, he would not be the nominee. Cabranes had faced that reality when Breyer was selected and he read in
The New York Times
that Clinton had considered choosing a Hispanic but was so “cool” to Cabranes that he “turned to his advisers and asked in exasperation if they could find him a Hispanic candidate other than Judge Cabranes.”
43

*   *   *

Through the late 1990s Hispanics continued to be the fastest-growing minority group in the United States, and the White House redoubled its efforts to find Latinos to appoint to the lower federal courts. Sonia Sotomayor was one of them. In June 1997 President Clinton nominated her for a seat on the U.S. Court of Appeals for the Second Circuit, where Cabranes had landed three years earlier.

She almost did not make it. The stakes were higher for her—and for Republicans—because she was being considered for a position just below the Supreme Court. During her first judicial nomination, in 1991–92, Sotomayor had confronted a GOP administration that naturally was not as interested in a nominee sponsored by leading Democrat Moynihan. Five years later, key Republicans understood that if she were confirmed to the appeals court, she would be in line for the High Court.

This time around, she was as poised for battle as the Democratic White House and the Republican-controlled Senate. Her political instincts were sharp, her list of contacts long. She also had a team of loyal boosters, led by Xavier Romeu, a Puerto Rican native who had worked for her as a law clerk in her early years as a district court judge. Sotomayor and Romeu had become friends and had stayed in close contact as she continued to serve as a trial court judge and Romeu moved on to other positions, including executive director of the Puerto Rico Federal Affairs Administration.

Romeu, who was also vice president of the Puerto Rican Bar Association, became the kind of shrewd and tireless backer that Marty Ginsburg was for his wife, Ruth, and that Senator Kennedy and his aides had been for Breyer. Romeu served as Sotomayor’s troubleshooter, working with her supporters and criticizing her opponents. Even though she had a fat Rolodex with a network of connections, Sotomayor was still a judge, and she still had to act like one. Romeu could press her case in a way that she could not.

Romeu secured an endorsement from Puerto Rico governor Pedro Rosselló and persuaded him to commit, as Sotomayor later said, “all of his office’s resources to my confirmation.”
44
Within a few weeks of her nomination, Romeu visited the White House to talk to top Latino aides in the administration. He kept in close touch with the lawyers handling nominations. He helped organize constituents to write letters to senators. He obtained testimonials from several Latino legal groups, which urged a speedy Senate Judiciary Committee hearing for Sotomayor. He prepared fact sheets listing her strengths and quickly circulated information to counter any criticism emerging in the Senate or from such outside opponents as conservative talk-show host Rush Limbaugh, who was branding Sotomayor a liberal activist.
45

When the Senate Judiciary Committee held its hearing in September 1997, the session was rockier than what Sotomayor had experienced when she was being considered for the district court in 1992. Republican senators focused on her criticism of federal sentencing rules that many judges thought too rigid and harsh. She said that despite her personal feelings, she “imposed what the law required.”
46

GOP senators also brought up a 1992
New York Times
story in which she had been asked whether she had sat on her hands when Justice Clarence Thomas addressed a conference she attended. She said in response to the reporter’s question, “I’ll take the Fifth.”
47

“Did you see fit to stand and applaud?” Alabama senator Jeff Sessions asked Sotomayor.

“He was my Supreme Court Justice of my circuit,” she answered, backing away from the suggestion in the
New York Times
report. “I stood up.”
48

The Senate Judiciary Committee recommended her to the full Senate in March 1998, but the nomination stalled in the Republican-controlled chamber. There were rumors that Justice John Paul Stevens, then seventy-eight, might retire. Republican senators, including majority leader Trent Lott, worried that Sotomayor would be in line for the Stevens position if she were confirmed to the appeals court.

So even though she had yet to make it onto the Hispanic National Bar Association’s list of possible Supreme Court candidates, she was very much on the Republicans’ radar screen. GOP partisans, who had been astutely playing judicial selection politics since the Reagan years, understood that Sotomayor could be an unstoppable Supreme Court candidate. They thought that if this rare Latina jurist were confirmed, Republicans would not be able to stop the president from making history by appointing her to the Supreme Court. Mississippi senator Lott understood and refused to allow a floor vote.

Talk radio host Limbaugh stoked Republican concerns about where she could go from there by saying she was on a “rocket ship” to the Supreme Court.
The Wall Street Journal
also editorialized against her, citing a similar view that Clinton was laying the groundwork for her eventual elevation to the High Court. “We’d like to think the Republicans may be having second thoughts about Judge Sotomayor and are deliberately delaying her confirmation until seeing whether Justice Stevens announces his retirement when the current Court term ends this month,” the editorial in early June 1998 said.
49

The Wall Street Journal
referred to several Sotomayor trial court decisions that it considered antibusiness. In one, Sotomayor had ruled that a law school graduate with learning disabilities was entitled to accommodation under the Americans with Disabilities Act while taking the New York State bar exam. The
Journal
wrote in its editorial, “By now New Yorkers are accustomed to this sort of antic judicial thinking. But why impose it on the whole country?” Romeu dissected that
Wall Street Journal
editorial and circulated a fact sheet responding to the criticism, writing that the would-be lawyer “suffers from a neurological impairment that prevents her from automatically recognizing words, thereby requiring her to read and reread sentences in order to decode their meaning.” He pointed out that Sotomayor’s decision had been affirmed by the U.S. Court of Appeals for the Second Circuit.
50

There was no split among Hispanics, as there had been four years earlier over a Cabranes nomination. A diverse coalition of Hispanic groups backed Sotomayor.

Yet in the end it would not be action by the Clinton White House, Democratic senators, or even Latino advocates that propelled Sotomayor’s nomination forward. It would be Republican senator Alfonse D’Amato who engineered the crucial Senate vote. This occurred a little more than a month before the 1998 November election, when D’Amato faced Democratic challenger U.S. representative Charles E. Schumer of New York.

D’Amato was trailing among Hispanic voters in the state. Sotomayor’s supporters convinced him that if he went to Senate majority leader Lott and secured a floor vote for her, Hispanics would be more inclined to vote for him over Schumer. So D’Amato pressured Lott to schedule the vote. On October 2, 1998, the Senate approved Sotomayor’s elevation to the Second Circuit appeals court by a vote of 67–29. All the votes against her were cast by Republicans.

A few weeks later, at her investiture at the Manhattan courthouse, it was clear that Sotomayor had kept up with her networking even after she put on the black robe of a trial court judge. She thanked a multitude of women’s groups and Hispanic organizations. “Hispanic leaders from across party, partisan, and island status lines not only endorsed my nomination and confirmation but also exerted their influence publicly and privately to make this confirmation happen,” she said.
51

She referred to D’Amato’s crucial role and the many people who talked him into intervening, including U.S. representatives José Serrano and Nydia Velázquez and various local Bronx officials. “State Senator Efrain Gonzalez of the 31st District in the Bronx, a man of his word and action, even withheld his endorsement of Senator D’Amato until the senator got me a Senate vote,” she said. (D’Amato lost to Schumer, failing to garner support from several important constituencies, including women, Jews, and Hispanics, but he harbored no hard feelings toward Sotomayor, and in 2009 he urged his former colleagues to support her Supreme Court confirmation.)

Sotomayor’s vast personal networks also were on display at the appeals court swearing-in. Cousins from Puerto Rico made the trip to New York, as did a Fendi lawyer from Italy whom Sotomayor had known when she represented the luxury-goods maker at Pavia & Harcourt. High school friends attended. Her dentist was there, and Sotomayor observed—as if it were as natural as could be—that she had gotten to know her dentist’s husband and become godmother to one of their children. She praised her mother and, when she referred to her father, said that he died at forty-two in part from the heart complications that had kept him out of the army during the war.

In one of the most personal moments of the investiture, before hundreds of supporters, Sotomayor addressed her then fiancé, Peter White, a New York construction contractor: “Peter, you have made me a whole person, filling not just the voids of emptiness that existed before you, but making me a better, a more loving and a more generous person … Many of my closest friends forget just how emotionally withdrawn I was before I met you.”

But she and White did not marry. The relationship ended early in her tenure on the Second Circuit.
52

Another man who had been a constant in her adult life, José Cabranes, addressed the crowd. “This is a wonderful day in New York…,” he said. “I have been accorded the honor of speaking to you on this happy occasion because, in a professional sense, I was ‘present at the creation.’”

Much had changed since Cabranes and Sotomayor first met in 1976. She had connected with such other powerful people as Senator Moynihan and had earned the loyalty of men and women in the trenches such as Xavier Romeu. She understood the political milieu of judicial nominations and knew that many forces needed to align for any one individual to reach her goal.