On October 6th, at 10 A.M., Neal Katyal, an attorney for the Department of Justice, rose in front of the Supreme Court to argue the government’s position in the matter of United States v. Stevens. Standing at a mahogany lectern, surrounded by marble friezes of lawgivers—Draco, Hammurabi, Marshall—Katyal began his address, which, he announced, would amount to a four-pronged defense of Section 48 of Title 18 of the federal criminal code. The law, which Congress passed in 1999, had been intended to restrict certain depictions of animal cruelty. Chief among them were “crush videos,” in which small animals such as guinea pigs, kittens, hamsters, birds, and mice are taped or tied to the floor and—as a congressional report put it—stomped to “a bloody mass of fur” by women, often wearing spike heels, who “can be heard talking to the animals in a kind of dominatrix patter” (“What’s wrong, little man? Are you scared?”). The acts shown in the videos—“The Tales of Charlie’s Ankles,” “Smush”—were already illegal, but prosecutors had found it nearly impossible to identify the participants in the videos, and thus to enforce the existing laws. Congress responded by targeting the images, making it illegal, with some artistic and educational exceptions, to “knowingly create, sell, or possess . . . for commercial gain . . . any visual or auditory depiction . . . in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.”
The law went unenforced until January, 2003, when Robert J. Stevens was arrested at his home, in Pittsville, Virginia. Stevens owned a business called Dogs of Velvet and Steel, and operated a Web site, pitbulllife.com, through which he sold dog-training paraphernalia and documentary films about pit bulls. Three of the films incorporated footage of dogs fighting. The government did not allege that Stevens had anything to do with staging or filming the fights. But, under Section 48, a jury found that his production and distribution of the films was criminal, and sentenced him to thirty-seven months in prison. An appeals court overturned the verdict.
The Stevens matter, having reached the Supreme Court, was shaping up to be one of the biggest cases of the term. In briefs, the government, along with animal-rights groups, asserted that depictions of animal cruelty were of such grievous harm to society that they—like depictions of child pornography, which the Court had prohibited with its decision in New York v. Ferber (1982)—were not shielded by the Constitution. Stevens’s lawyers, joined by an unlikely alliance of gun advocates and civil-liberties organizations, argued that the law infringed upon “a broad swath of never-before-regulated speech.” The case was a First Amendment depth bomb. If the Court upheld the statute, it would create a new category of unprotected expression for the first time in twenty-seven years.
At the lectern, Katyal began to speak. “First, like the statute at issue in New York v. Ferber, this statute only reaches depictions of cruelty to actual living beings—animals, not simulated ones or the written word,” he said. “Second, the statute only applies to commercial messages, ones that Congress found drove the market for animal cruelty. Third, the statute examines the work as a whole—”
A blunt, glottal voice cut in. “What record do you have of that fact?” Justice Sonia Sotomayor asked.
Sotomayor—pitched forward, drinking from a thermos—wanted to know about the market for dog-fighting videos. Katyal assured her that it was robust. A few Justices registered points before Sotomayor jumped in:
SOTOMAYOR: Could you tell me what the difference is between these videos and David Roma’s documentary on pit bulls? I mean, David Roma’s documentary had much, much more footage on the actual animal cruelty than the films at issue here. . . . In this film, the respondent didn’t let the video show the actual tearing of the jaw. . . . So isn’t, doesn’t there have to be a judgment inherent in this statute?
KATYAL: The line will sometimes be difficult to draw, just as it’s difficult to draw in child pornography—
SOTOMAYOR: But it’s not in child pornography, because, there, Congress says the very act—it doesn’t matter how artistic it is. That very act of child pornography is illegal.
By the end of the hour allotted to the case, Justice Sotomayor—wearing a snaky silver cuff bracelet and with her fingernails painted sports-car red—had spoken five times. The day before, in the Court’s opening session, she had spoken thirty-three times, more than any other Justice. In contrast to some of her peers, who pondered historical parallels (Justice Antonin Scalia: “What about a new Adolf Hitler?”) or posed absurdist hypotheticals (Justice Samuel Alito: “Suppose you have the Ethnic Cleansing Channel on cable TV?”), she took a nudgy, earthbound approach (“What do you mean by ‘even-handed,’ please?”). She did not traffic in punch lines or brainteasers. Her hypothetical was an actual. You could imagine Sotomayor, who had ditched the frilly jabot she had worn in her official portrait (a gift from Justice Ruth Bader Ginsburg), becoming curious about pit-bull documentaries and calling up some David Roma clips on YouTube to check them out for herself.
When President Obama announced her nomination, on May 26th, it was clear that Sotomayor—who, two weeks later, fractured her ankle running late at LaGuardia—would be a different kind of Justice, someone a little more connected, as the White House kept reminding everyone, with “the real world.” She was a boricua from the Bronx, a diabetic, a divorcée, a dental-bill debtor, a person who, the night before her investiture ceremony, belted out “We Are Family” in a karaoke bar at a Red Roof Inn. (“It was all Titi Sonia’s idea,” her cousin Marisol Gutierrez told Latina.) The financial-disclosure form that she filed with the Senate revealed that, in 2008, in a Florida casino, she had won $8,283 playing cards. Scalia, a few years earlier, had become embroiled in a conflict-of-interest drama after going on a duck-hunting trip with Dick Cheney; Sotomayor once recused herself from a case because, she wrote, “I was a member of the BJ’s Wholesale Club Inc.” Whether her name was pronounced Soda-may-er (Senator Jeff Sessions), Soto-my-ur (Senator Richard Durbin), Soto-my-air (Senator Al Franken), or Soto-may-ay-or (Senator Tom Coburn), she cut a relatable figure. The Bronx congressman Jose Serrano said that, after her nomination, “people on the street would come running up to me and talk about ‘Sonia,’ like she’s their cousin, or their niece.”
Sotomayor’s mode of expression can be inelegant. Her writings are marked less by any special rhetorical force or philosophical clarity than by a prosaic approachability. In Farrell v. Burke (2006), she invoked Carrie Bradshaw: “The State’s definition of pornography as material depicting sexual conduct and ‘designed to cause sexual excitement,’ if applied, would cover not only materials such as Scum but also popular television shows such as ‘Sex and the City.’ ” But all the talk about her love of salsa dancing and pigs’ feet was filler. It did not reveal, or guarantee, that she would behave in a certain way on the bench, or that, even if she did, she would not in time be transformed by the unpredictable alchemy of the Court. Her jurisprudence, up to her Supreme Court début, had been fairly liberal, but her methods varied: strict textualism, allusions to international law, nods to the legislative record.
Sotomayor’s questions in her first week on the bench established her as the Court’s most exuberant rookie interrogator since Scalia, who, in 1986, had irked Justice Lewis Powell by hogging the floor. (“Do you think he knows that the rest of us are here?” Powell had whispered to Justice Thurgood Marshall.) As a judge on the Second Circuit Court of Appeals, in New York, Sotomayor had been known for her collegiality. Some people were surprised to see her coming on so aggressively in her new role. “As someone who totally loves and adores her, I think she should kind of take it slow at the beginning,” a former clerk of Sotomayor’s told me. Like a transfer student who picks a fight on the first day of school, Sotomayor seemed to be showing that she was not to be taken—as she variously had been, in the months leading up to her début—for a pushover, a token, or a slouch. She would not be cowed by the pomp of the setting—the velvet draperies, the spittoons—nor would she be inhibited by the Court’s finicky codes of seniority and decorum. “In Sonia’s mind, there is no time for a learning curve for a Justice,” her friend Alex Rodriguez, a management consultant, told me. “She feels she has to fill that ninth seat on Day One.”
Latino leaders began laying the groundwork for a Sotomayor nomination almost as soon as President Obama was elected. During the Administrations of George H. W. Bush and Bill Clinton, Latino groups had repeatedly failed to coalesce around a candidate. This time, they were determined to wield their influence as a bloc. In January, Nydia Velázquez, the Democratic congresswoman from New York’s Twelfth District, was sworn in as the head of the Congressional Hispanic Caucus. She asked Sotomayor, a longtime friend, to come to Washington to administer the oath—and to insure that she was fresh in the mind of every Hispanic member of Congress.
At a Cinco de Mayo party at the White House, Velázquez and Serrano, who is of Puerto Rican descent, each buttonholed Obama.
“Mr. President, she’s a very qualified person, and it would be a historic nomination,” Serrano said.
Velázquez gripped Obama by both hands. “Mr. President, you have an opportunity, here in your hands, to shape the United States Supreme Court for years to come.”
Obama whispered into Velázquez’s ear and smiled. “I know—there’s a Puerto Rican woman.”
Justice David Souter announced his resignation on May 1st. Not long afterward, the Hispanic Caucus convened to formally endorse a candidate. The meeting was long and contentious. The Mexican-Americans did not have a superior candidate. The Puerto Ricans did not have the numbers. After hours of debate, Ed Pastor, a Mexican-American congressman from Arizona, made a motion: “The best candidate is Sonia Sotomayor, and we should take a vote right here.” The meeting ended with a unanimous vote for Sotomayor.
Latino leaders also lobbied their black counterparts to the cause. “The concern of some people, and I believe some in the White House, was with what political capital they could use in nominating a Latina in terms of the black community, who feel that Clarence Thomas doesn’t represent them,” Velázquez said. On the House floor, Velázquez approached the North Carolina representative Mel Watt, who serves on the House Judiciary Committee, and who formerly chaired the Congressional Black Caucus. A few days later, Watt called Velázquez on a Saturday. “Nydia, I placed a call to the White House,” he said. “I said, ‘If there’s not a black candidate that makes the short list, we will be supportive of Sonia Sotomayor.’ ”
By the third week of May, Obama had narrowed the list to four finalists: Diane Wood, of the Seventh Circuit Court of Appeals; Elena Kagan, the Solicitor General; the Homeland Security Secretary, Janet Napolitano; and Sotomayor. Cynthia Hogan, the counsel to Vice-President Joseph Biden, was charged with running the nomination and confirmation process. Within her office, parlor handicappers considered Sotomayor, the only candidate the President did not know personally, to be at a disadvantage. An interview with Obama changed the odds. On May 26th, he announced her nomination, citing her “formidable intellect” and her “inspiring life’s journey.”
Despite Obama’s praise, and photographs of Sotomayor’s angelic mother, Celina Sotomayor, dabbing at her eyes during the press conference, the rollout got off to a slightly sour start. In early May, a widely read article by Jeffrey Rosen in The New Republic, entitled “The Case Against Sotomayor,” had quoted an anonymous source as saying that Sotomayor was “kind of a bully on the bench,” “domineering,” and “not that smart.” The piece generated six hundred and forty-two comments on the magazine’s Web site, many of them incensed. Rosen eventually softened his criticisms, but the insinuations lingered. The day after the nomination was announced, Dana Milbank wrote in the Washington Post that Obama had opted for “biography over brain.” Many of the potshots were glancing (Newt Gingrich Tweeting that Sotomayor was a “Latina woman racist”), but the perception that Sotomayor was a temperamentally and intellectually invalid candidate, posited largely by backers of other candidates during the selection process, had infiltrated the debate.
Sotomayor is not given to niceties. “She would go to senior people and tell them what the hell she felt,” Steve Skulnik, a former colleague of Sotomayor’s at the law firm Pavia & Harcourt, recalled. “I remember one lunch when she started lecturing one of the partners about how he wasn’t billing clients as regularly as he should have been. That was sort of shocking to people at the table.” In early December, during oral arguments for United Student Aid Funds Inc. v. Espinosa, Sotomayor cut off a lawyer as he attempted to answer a question posed by Justice Ginsburg. “Counsel, may I interrupt for just one moment, because I—there is something needling at me that I do need an answer to,” Sotomayor said. According to Law.com, which reported on the incident in a story headlined “Sotomayor Collides with Ginsburg During Questioning,” Justice Stephen Breyer turned to Sotomayor as though to intervene. Before he could, Ginsburg shot back, “And I’d like him to answer the question that I asked him first.”
A number of Sotomayor’s colleagues on the Second Circuit and her former clerks acknowledged to me that she could be tough on the bench, but none of them said that they found her untowardly so. (Although Sotomayor is hard on lawyers, she is said to be unusually solicitous toward jurors.) Some of them suggested that her indelicate manner may be a consequence of professional necessity. A colleague on the Second Circuit suggested, “The way she is on the bench may come from having been a district-court judge, where you have to maintain control of the courtroom.”
Some of the talk about Sotomayor’s attitude may have amounted to lay misunderstanding of the nature of judicial interrogation, which on the Second Circuit—where each oral argument typically lasts only ten minutes—tends to be curt. But the slurs played into stereotypes: the dense lady-judge, the mouthy Latina. Judge Guido Calabresi, of the Second Circuit, told the Times that the charges were “sexist, plain and simple.” In June, Ted Shaw, a former head of the N.A.A.C.P. Legal and Educational Defense Fund, and a high-school classmate of Sotomayor’s, exclaimed to me, “She was at the top of our class, which was ninety per cent white. For those who suggest her intellectual background is not strong—well, all the white folks were below her!”
The Administration’s strategy was to create a “broad-based” effort at “lowering the temperature” of the process. After the Congressional Hispanic Caucus meeting, Velázquez pondered whether to announce the results of the internal vote. “Some members said, ‘If we don’t use the influence of the caucus, and the President doesn’t nominate a Hispanic, then the Hispanic community is going to say, “Where was the caucus?” ’ ” Velázquez recalled. In mid-May, she ran into Senator Charles Schumer, of New York, who sits on the Judiciary Committee, at Gracie Mansion. “ ‘Nyd, Nyd, I think we can do this,’ Schumer said to me,” Velázquez recalled. “I said, ‘What do you think the C.H.C. should do?’ and he said, ‘Play low-key, like a low profile.’ ”
The Administration also enlisted what it called “outside validators.” From 1979 to 1984, Sotomayor had been a prosecutor, a credential that Hogan’s team seized upon. Robert Morgenthau, the ninety-year-old Manhattan district attorney, who resigned last week, became a fixture at press conferences. (He also testified at the confirmation hearing.) In June, Vice-President Biden, flanked by Morgenthau and the Miami police chief, John Timoney, told law-enforcement officials that Sotomayor “has your back.” A week earlier, a first-person essay, written by Hugh H. Mo, who had supervised Sotomayor in the D.A.’s office, appeared on Politico. Entitled “Real-World Experience Prepared Sonia Sotomayor,” it detailed Sotomayor’s role in obtaining a sixty-two-year sentence for a criminal known as the Tarzan Burglar, during “one of the worst crime sprees in a generation.” The piece, Mo said, had been suggested by Stephanie Cutter, a White House communications adviser.
The Clinton prosecutor Kenneth Starr, whose wife knew Sotomayor, spoke in her favor. The White House worked with Louis Freeh, the F.B.I. director under Bill Clinton and, briefly, George W. Bush, to assure a number of Republican lawyers that, by supporting Sotomayor, they would not be isolating themselves politically. (Freeh had served with her as a district-court judge.) The strategy was astute. Conservatives were left grasping at Sotomayor’s typos. Her speeches “misspelled proper names she should have checked,” and included “at least one subject-verb disagreement,” Matthew Franck wrote on a National Review blog. Serrano recalled, “I was concerned at the beginning, when I saw the onslaught of the right-wing radio stations and TV shows, but then I realized it wasn’t universal. And I hate to say this, but, when I began to see judges and lawyers from her prosecutor days come out for her, they all had one thing in common—they were white males. So then I knew that we were going to do fine.”
Before her confirmation hearings, Sotomayor paid courtesy calls to eighty-nine senators, the most of any Supreme Court nominee. “I had read news accounts of these anonymous comments, so I thought, What’s she going to be like?” Senator Amy Klobuchar, of Minnesota, recalled. “It turned out she was incredibly engaging. She was ten minutes early and we ran into each other in the hallway. Most people would be, like, ‘O.K., we’re meeting in ten minutes,’ but she looked at me, and she goes, ‘I’m here already,’ and I said, ‘Well, do you want to come in?’ ”
Not every senator was charmed by Sotomayor. The day she broke her ankle, she kept an appointment with Senator David Vitter, a Republican from Louisiana. Vitter, Sotomayor later told a friend, was unwelcoming. As they were finishing their meeting, Vitter said, “I want to ask you—do you think if I was you, and I had made the wise-Latina comment that you made, that I would have deserved to be a Supreme Court Justice?”
Sotomayor replied, “If you had my record, yes.”
Sonia Maria Sotomayor: born in 1954, to Celina, a telephone operator, and Juan, a tool-and-die worker who died when she was nine; sister of Juan (named for his father); possessor of the neighborhood’s only set of encyclopedias; high-school valedictorian; Princeton graduate; law-review editor at Yale Law School; Morgenthau acolyte; corporate lawyer; district-court judge; savior of baseball; Supreme Court Justice whose life story has become the most widely disseminated, and parsed for meaning, since that of the maid’s son from Pinpoint, Georgia. To David Brooks, writing in the Times, her story was a morality tale, epitomizing “the intoxicating lure of work.” To Rush Limbaugh, it was a crock. Clarence Thomas, Limbaugh told his radio audience, “could teach Sonia Sotomayor about poverty, about single-parent households, about having to work multiple jobs, about not being admitted into a library to read in Savannah, Georgia.” Obama, citing Oliver Wendell Holmes, framed Sotomayor’s trajectory as a Bronx bildungsroman, the sort of journey that “can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.”
In the Sotomayor household, the essential institution was not the government (Celina taught self-reliance) or the church (the family, St. Athanasius parishioners, were not especially devout) but the school (Juan, who is now an allergist in Syracuse, and Sonia did their homework at the kitchen table with Celina, who was studying to become a practical nurse). Sotomayor, a star student but not an autodidact, has remained close to her alma maters. She serves on the Princeton board of trustees, and, in October, she returned to Yale for her thirtieth reunion. Rudolph Aragon, a close friend from Yale, remembered her at their twenty-fifth: “She had intentionally lost twenty-five pounds, she had her hair done, she had her makeup done, and I said, ‘Sonia, you look like a love goddess!’ ” Her senior-thesis adviser, Peter Winn, wrote, in the Washington Post, “She was not the best student I taught in my seven years at Princeton—though she certainly was high on the list—but she was the one who took greatest advantage of the opportunities there and emerged most transformed by her experience.”
Sotomayor entered Cardinal Spellman High School, in the Edenwald section of the Bronx, in 1968. The school’s two thousand students, strivers of assorted ethnicities, were mostly there at some sacrifice to their families. Sotomayor was a member of the debate team and the National Honor Society. She was not a member of Vaya, the Latino organization. During Sotomayor’s senior year, the school went coed. She ran for class president, losing to a girl named Doreen Frasca. The nuns—one was nicknamed Rigor Mortis—did not brook self-pity. One year, the school staged a father-daughter dance: Sotomayor and Lois Harr, another fatherless classmate, sat outside and collected tickets.
Sotomayor arrived at Princeton in 1972, several months after the graduation of her future colleague Samuel Alito. The atmosphere, a few years into coeducation and affirmative action (of which Sotomayor has said she was a beneficiary), was not one of unqualified comity. Alito, as a student, had belonged to a group called the Concerned Alumni of Princeton, whose founder once fondly recalled a time when the university was “a body of men relatively homogeneous in interests and backgrounds, who had known and liked each other over the years.”
As a freshman, Sotomayor roomed with Dolores Chavez, a Mexican-American from Albuquerque. They lived in the Walker Hall dormitory, close to the infirmary. “It was like a small-town girl meets this big-city-woman type of thing,” Chavez recalled. Chavez made curtains on her sewing machine. She introduced Sotomayor to tacos and played the folk song “La Paloma” on the guitar. Sotomayor invited her home to the Bronx. Chavez recalled, “First thing she said was ‘Dolores, you’re from New Mexico. You smile way too much.’ ”
To supplement her scholarship, Sotomayor worked in the cafeteria. On the steam line, student employees were required to wear a blue button-down shirt with a dorky bow tie and a name tag. “The more juvenile of us would wear the bow tie halfway off, or have the shirttail out,” Nick Allard, who worked with Sotomayor, recalled. “Sonia would show up, wear it properly. It was clear that she had bigger fish to fry.”
Indifferent as she was to cosmetic indignities, Sotomayor, as a sophomore, led a group of Puerto Rican and Chicano students in filing a complaint with the Department of Health, Education and Welfare, charging the university, as she explained to the school newspaper, with relegating “an important cultural sector of the population to oblivion.” Her detractors have invoked her campus grievances to portray her as a radical separatist, but her activism, over the years, has been of a mild brand. In an era of effigies and occupations, Sotomayor wrote letters to the Daily Princetonian. Frustrated with the Man in New Jersey, she appealed to his counterpart in Washington. “I am not promoting ethnic segregation,” she said, years later. “I am promoting just the opposite: an ethnic identity and pride which impels us to work with others in the larger society to achieve advancement for the peoples of our cultures.” When some of her peers blockaded the entrance to the Institute for Advanced Study, because of a rumor that it worked on anti-personnel mines, they did not think to ask her to participate. “She would have said that it would not have a discernible effect on anybody’s behavior, that it would alienate people,” Ken Moy, a friend at Spellman and at Princeton, recalled. “Sonia was always able to find the levers inside existing structures.”
Sotomayor has attempted not to demolish institutions but to transform them from within. She has an uncanny ability to challenge authority without invoking its wrath. Later in her sophomore year, she registered another grievance: Adele Simmons, the dean of student affairs, had not sufficiently consulted the members of a student advisory committee in selecting a new dean of minority affairs. “We’re not here to play patsies, we’re not a front,” Sotomayor, who had served on the committee, told the Princetonian. Her words were strong, and a little silly, but they did not alienate administrators. “It was always terrific when students asked to change things in ways that were doable,” Simmons recalled. In her senior year, the university presented Sotomayor with the M. Taylor Pyne Honor Prize, its highest academic award.
Sotomayor believes in the perfectibility of systems. Several of her former clerks attributed her impatience with unprepared lawyers to her reverence for the judicial process and her faith that, if it is administered meticulously, it will achieve the correct result. Clarence Thomas’s experiences in the seventies caused him to embrace individualism; Sotomayor’s made her an establishmentarian. She has a bit of a bureaucratic streak. When Princeton’s administrators asked her to join the advisory committee to select the minority dean, she agreed to, but only as a formal delegate of Acción Puertorriqueña, a campus organization. Unlike Thomas, Sotomayor has wanted to be a representative of a group.
Sotomayor’s deference to institutions is evident in some of her business jurisprudence. “SOTOMAYOR AND BUSINESS: ‘NO REASON . . . TO BE CONCERNED,’ ” a Wall Street Journal headline read in May. In the case In re Air Crash Off Long Island, NY, on July 17, 1996 (2000), she disagreed with her colleagues’ decision to allow the families of the T.W.A. Flight 800 crash victims to sue the airline and Boeing. Although it was an “understandable desire” to permit the families to seek redress, she argued, such a lawsuit was prohibited by the Death on the High Seas Act and would “prevent certainty in the law.” The Republican-leaning Chamber of Commerce endorsed Sotomayor. Still, some business interests were alarmed by her comment, during oral arguments in Citizens United v. Federal Election Commission, the campaign-finance case that the Supreme Court heard in September, that the Court had perhaps erred in endowing corporations with many of the same characteristics and rights as people. (The Supreme Court emphatically rejected her attempt, as an appellate judge, to extend tort law to allow people to sue private corporations acting on behalf of the federal government.)
It was odd to hear Sotomayor portrayed as a radical: she married Kevin Noonan, a molecular biologist whom she had dated since Spellman, at St. Patrick’s Cathedral in 1976, arriving at the ceremony in a white dress. (The couple, who had no children, divorced in 1983.) In 1977, she entered Yale Law School. There, she made law review with an esoteric note that examined a constitutional principle called the equal-footing doctrine in the light of the Puerto Rican statehood movement. If Puerto Rico became a state, Sotomayor asked, would it keep the mineral rights to surrounding seabeds? She forged a narrow compromise, asserting that, while equal footing prevailed under most circumstances, Congress was entitled to make certain exceptions. “She was navigating between two very difficult questions to find a practical, workable solution,” the Yale Law School professor Stephen Carter, who edited the note, said.
Sotomayor spends a good deal of her time attending brown-bag lunches and judging moot courts. In 1980, she joined the Puerto Rican Legal Defense and Education Fund—an affiliation that her opponents tried to milk for controversy but that, for a young, ambitious lawyer with an interest in Puerto Rican issues, was about as unusual as joining the Central Park Conservancy would have been for an environmentally minded one. In 1987, Sotomayor was appointed to the State of New York Mortgage Agency board; the next year, with Morgenthau’s endorsement, she gained a seat on the New York City Campaign Finance Board. In 1986, she toured Israel with a group of Latino activists, a trip that, according to people close to her, she has spoken of as a seminal experience.
Sotomayor has built a sprawling network of friends, acquaintances, and colleagues much in the way of her opinions: diligently, and without any great flourish. “She’s the last person you’d remember at a party,” Rodriguez said—yet she seems to be the first person people remember at their weddings, their graduations, and the christenings of their children. (Sotomayor is a godmother to five children, including the son of her dentist.) In the nineties, she was engaged to a building contractor named Peter White, whom she addressed emotionally at her 1998 induction ceremony. “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,” she said. “You have altered my life so profoundly that many of my closest friends forget just how emotionally withdrawn I was before I met you.” The end of the relationship was difficult for Sotomayor—“It’s a little sad, but the time that I think I saw her the happiest was just when she had a few of us to dinner and she was still with White and they talked about the pasta they had cooked together,” Judge Calabresi recalled—but her social life remains robust. Judge Rosemary Pooler, of the Second Circuit, told me, “It’s hard to find interesting men who are at her level, but I’m pleased to say she has recently met some. And that’s all I’ll say about that!” Sotomayor and her circle take a casual barn-raising approach: one day, Sotomayor had offered to drive her friend Margarita Rosa’s daughter to college, but the stuff didn’t fit in Sotomayor’s Saab convertible, so she called her friend Dawn Cardi, who drove in from Brooklyn with bigger wheels. When the mother of Judge Richard Wesley, Sotomayor’s former colleague, died, Sotomayor appeared at the wake, three hundred and twenty miles from Manhattan.
“Yes” is Sotomayor’s default mode. She shows up. In 2008, at the behest of her friend Mari Carmen Aponte, she joined Belizean Grove—“a global constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same,” according to its mission statement. (The organization was inspired by the men-only club Bohemian Grove.) Last year, Sotomayor attended a group retreat in Lima. “We talked about our work lives and the sights in Peru,” Helena Ribe, a World Bank executive who was assigned to be Sotomayor’s “big sister,” recalled. “Being middle-aged women without a partner, we had that connection, too.” During Sotomayor’s nomination, the club’s membership policies drew criticism, and Sotomayor resigned. Still, she invited Susan Stautberg, the group’s founder, to the White House reception after her swearing-in. In Lima, Sotomayor had participated in a panel discussion about constitutional law. No community-building activity was too corny or too tedious. “She wore her new member’s boa and was bright and fun and asked good questions,” Stautberg recalled. Afterward, Sotomayor approached Stautberg with an observation: there were too many people on the panels. Perhaps, next time, they could come up with a better way to organize them.
In 1991, Daniel Patrick Moynihan, the Democratic senator from New York, was looking for a judge. George H. W. Bush was in office, but Moynihan and the Republican senator Alfonse D’Amato had a deal: in a Republican Administration, Moynihan could pick one federal judge for every three that D’Amato chose. Nick Allard, Sotomayor’s colleague from the Princeton steam line, had, by that time, worked for years in Democratic politics. One day, Chester Straub, the head of Moynihan’s judicial-selection committee, called Allard in to talk about potential nominees. Allard said, “I vividly remember saying, ‘Sonia Sotomayor is terrific, and she should be the head of any list.’ And Moynihan, in his stammering, sarcastic staccato, looked at me and said, ‘Some news flash. Like telling me DiMaggio can hit.’ ”
Sotomayor was confirmed as a district-court judge with the unanimous consent of the Senate in August, 1992. “The hearing was wonderful,” she said later. “Because a Democratic senator had proposed me and a Republican President nominated me, my questions were pro forma.” Five years later, in June of 1997, President Clinton submitted her name to the Senate as a nominee to the Second Circuit Court of Appeals.
Things proceeded smoothly until the hearing. “Unfortunately, at 12 noon of the day of my hearing, Rush Limbaugh decided to devote his radio show to my nomination,” Sotomayor recalled later. Limbaugh’s objections were strategic: Sotomayor was on a “rocket ship” to the Supreme Court, he warned. It was March, 1998, before the Judiciary Committee voted, 16–2, to send Sotomayor’s name to the full Senate. The nomination stalled. Finally, in October, amid intense pressure from Hispanic groups—Sotomayor’s supporters sent ten thousand letters to senators—Sotomayor got a hearing. She was confirmed, 67–29. After the experience, she sounded unusually cynical. “Although we all wish to believe that appointments are only the product of merit, the harsh reality is that the support of community groups is critical to insuring that meritorious candidates are not overlooked or victimized in the appointment process,” she said.
Sotomayor’s chambers, at the federal courthouse on Foley Square, were known as a cheerful, unhierarchical place to work. One morning, everyone adjourned to see “Harry Potter and the Order of the Phoenix.” At Halloween, Sotomayor decorated the office with scarecrows and pumpkins; in December, she would bring Christmas decorations and a menorah. During the 2006-07 term, after an exhausting day of interviewing candidates for the next year’s clerk slots, Sotomayor invited her current clerks to her apartment, in Greenwich Village. “She was like, ‘O.K., guys, the second I’m done with the last interview I’m running home, we’re getting burgers!’” Kyle Wong, a former clerk, recalled. “We went over and she had Scotch and all this wine and beer. We sat down at eight and then she busts out the poker, and we play Texas hold ’em until two o’clock in the morning.” At the end of the night, Sotomayor made sure that everyone had cab fare, yelling, as the clerks drove off, “I don’t have to see you guys before 10 A.M. tomorrow!”
Judges tend to surround themselves with people who, in some way, reflect their values or their passions. “O’Connor liked Arizonans, Rehnquist tennis players; Ginsburg favors musicians, Souter quirky intellectuals,” Jeffrey Toobin writes, in “The Nine.” Sotomayor’s priority is to assemble a cohesive group. She does not hire people who know each other, fearing that it will imbalance the dynamic. Her clerks are typically amiable generalists. More politically engaged clerks can find Sotomayor’s ideological reticence frustrating—in Cassidy v. Chertoff (2006), for example, rather than challenging the expanding powers of the national-security state, she ruled that the operators of a ferry-boat company on Lake Champlain could search passengers at random in the name of preventing terrorism.
Unlike a lot of judges, Sotomayor reads briefs first. She then passes them to her clerks, with annotations to guide their research. Many clerks noted the extent to which Sotomayor delves into the factual record from the lower court. “She takes each case and works it to death to get the right result,” Adam Abensohn, a former clerk, said. Danielle Tarantolo, another former clerk, said that Sotomayor has an unusual ability to isolate the “pressure points” of a case. Even in lighthearted matters, Sotomayor can be a grind. Before she threw the first pitch at a Yankees game, last September, she enlisted a personal-trainer friend to help her practice. When Abensohn and his fiancée asked her to officiate at their wedding, she invited them out to dinner. “She showed up with a legal pad and pen and was essentially interviewing us—how did we meet, and when did we fall in love, and why do we like each other?” Abensohn recalled.
In the courtroom, Sotomayor values preparation. “I liked to parry and to win her over,” the criminal-defense attorney Gerald Shargel recalled. “She can be, and is, won over by lawyers who are prepared. But if a lawyer acts like a fool she will go for the jugular.” A study of Sotomayor’s criminal decisions by the University of Texas law professor Stefanie Lindquist found that, of sixty-seven majority opinions involving criminal matters, eighty-one per cent were pro-government and nineteen per cent were pro-defendant. “People who think she’s going to be a really reliable liberal on all issues—I don’t know!” one of Sotomayor’s former clerks said. “But people simplify. No one is harder on prosecutors. If you fuck up or withhold Brady info”—evidence or information that is favorable to a defendant—“or do something that’s unethical or wrong, she will destroy you.” In 1993, as a district-court judge, Sotomayor presided over the sentencing of a police officer who had sold heroin. The probation report recommended four to five years in prison. Sotomayor, citing the officer’s “abuse of trust,” gave him seven. Still, she is a stickler for procedural safeguards. In November, she joined Justice Ginsburg in signing a statement issued by Justice John Paul Stevens, condemning “the perversity of executing inmates”—the inmate in question was one of the Beltway snipers—“before their appeals process has been fully concluded.”
Sotomayor is perceived as being more liberal in cases involving immigration. Although an analysis compiled by Senator Schumer’s office suggested that her rate of deciding with the government—eighty-three per cent—was consistent with that of the rest of the Second Circuit, she drew notice, in her first Supreme Court opinion, by using the terms “undocumented immigrant” and “undocumented worker” instead of “illegal immigrant.” Bruno Bembi, a lawyer who has argued several immigration cases before Sotomayor, said, “If there was a way that you could interpret the matter so that you could give the alien the benefit of the doubt, or go along with some of the Ninth Circuit”—the liberal California court—“cases, she would give that to you if it was reasonable.” Judge Rosemary Pooler said, “She was very thoughtful and very willing to try to find ways, within the tight system that has evolved, for immigrants to achieve asylum.”
Sotomayor’s concurring opinion in Lin v. United States Department of Justice (2007) may epitomize her jurisprudence. In the case, three Chinese aliens—the unmarried partners of women who had been subject to China’s forced-abortion policies—petitioned for automatic asylum on the basis of persecution. The majority rejected their claim, ruling that automatic asylum did not extend to spouses or to unmarried partners. Sotomayor’s opinion united two sometimes conflicting strands of her jurisprudence—an aversion to going beyond the issues at hand and a concern about the effects of laws on people—citing dry procedural principles to reach a compassionate conclusion. Since the petitioners were unmarried, the Court had erred, she wrote, in considering the question of whether partners and spouses should be permitted asylum (“Today’s decision marks an extraordinary and unwarranted departure from our longstanding principles of deference and judicial restraint”). But, since it had, it should have realized that spouses can experience persecution by association (“The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child”).
Sotomayor has said that she considers herself “merely an average writer.” Clarity, not refinement, is her aim. “I once wanted to use the word ‘pellucid,’ and we had a tussle about that,” Kyle Wong recalled. As an intellectual-property lawyer, Sotomayor worked with several other lawyers to write an anti-counterfeiting law. (This experience may account for some of Sotomayor’s sensitivity to legislative intent.) Heather McDonald, who also worked on the bill, recalled that various key provisions ended up being neutered by political horse-trading in Albany. “Sonia, more than the rest of us, was frustrated with the law we ended up with, because, frankly, it wasn’t that easy to prosecute a case under,” McDonald recalled.
During the hearings, Ta-Nehisi Coates wrote on his blog, for The Atlantic, that Sotomayor’s exacting diction reminded him “of one of those teachers in middle school who worked hard to scrub away the hood accent.” At one point during her hearings, Senator Benjamin Cardin asked Sotomayor about the importance of diversity. “With respect to the issue of the question of what role diversity serves in the society, it hearkens back almost directly to your previous question,” she replied. “I’ve been overusing that word, ‘hearken’—sorry!” One could almost see her mentally wielding a big red pen.
Words, for Sotomayor, are means, not ends. She rarely attempts to transcend the facts at hand, or to speak to broader constituencies. “She’s not swinging for the rafters,” a former clerk said. “She writes for people who want to know what the law is.” Sotomayor does not have a particularly novel, or consistent, judicial philosophy. An admirer of Justice Souter’s writing, for its humility and restraint, “she believes that this is a serious business we’re doing, and a judge shouldn’t be taking the time to write a novel,” Wong said. Legal opinions, in Sotomayor’s view, are like instruction manuals—everyone should be able to follow them. In Farrell v. Burke, Sotomayor, resisting the temptation to wax about the First Amendment, chose simply to include the following exchange from the testimony of a police officer who had charged a convicted sex offender for violating the terms of his probation by possessing obscene materials:
MR. NATHANSON: Are you saying, for example, that that condition of parole would prohibit Mr. Farrell from possessing, say, Playboy magazine?
P.O. BURKE: Yes.
MR. NATHANSON: Are you saying that that condition of parole would prohibit Mr. Farrell from possessing a photograph of Michelangelo[’s] David?
P.O. BURKE: What is that?
MR. NATHANSON: Are you familiar with that sculpture?
P.O. BURKE: No.
MR. NATHANSON: If I tell you it’s a large sculpture of a nude youth with his genitals exposed and visible, does that help to refresh your memory of what that is?
P.O. BURKE: If he possessed that, yes, he would be locked up for that.
Still, Sotomayor ruled that Farrell had violated his parole. “Although a series of strongly worded opinions by this Court and others suggest that the term ‘pornography’ is unconstitutionally vague, we hold that Scum falls within any reasonable definition of pornography,” she wrote.
In Ford v. McGinnis (2003), she reversed the decision of a district court that a Muslim prisoner’s free-exercise rights had not been violated when he was refused a meal for the feast of Eid ul Fitr. Her opinion was bereft of stirring language about oppression and liberty. Instead, she presented the outcome almost grudgingly, as a technocratic inevitability, a liberal outcome compelled by the conservative method of dutifully applying a law—in this case, Congress’s substantial-burden test—that she didn’t particularly like. “Applying the substantial burden test requires courts to distinguish important from unimportant religious beliefs, a task for which we have already explained courts are particularly ill-suited,” Sotomayor wrote, before applying the test anyhow. Dissenting in Hayden v. Pataki (2006), she also used conservative means to come to a liberal conclusion, determining, by a literal reading of the Voting Rights Act, that felons should be allowed to contest their disenfranchisement.
“Sonia’s tendency has been to suffer evils until she deems them no longer sufferable,” Peter Kougasian, who attended Princeton with Sotomayor and worked with her in the D.A.’s office, said, paraphrasing the Declaration of Independence. As Jeffrey Rosen noted in another article in The New Republic, a sense of outrage or of passion has emerged most frequently in her dissents, which have tended to be more liberal than her majority opinions. In N.G. and S.G. v. Connecticut (2004), she objected to the strip search of girls at juvenile-detention centers, writing, with unusual vim and detail, “The officials inspected the girls’ naked bodies front and back, and had them lift their breasts and spread out folds of fat.” In Gant v. Wallingford Board of Education (1999), she movingly defended a first grader, the only black boy in his class, who had been demoted to kindergarten after nine days: “I consider the treatment this lone black child encountered during his brief time in Cook Hill’s first grade to have been not merely ‘arguably unusual’ or ‘indisputably discretionary,’ but unprecedented and contrary to the school’s established policies.” These dissents are juicy, but they are not the marrow of Sotomayor’s jurisprudence. A lawyer who has litigated civil-liberties cases before her told me, “My disappointment with Sotomayor is that she’s not an outlier.”
On the morning of July 13th, Sotomayor sat at a long wooden table, listening to the opening statements of the nineteen members of the Senate Judiciary Committee. Under the table was an improvised footrest, rigged with duct tape, for her swollen ankle. She was wearing a cobalt-blue suit. (Two days later, she chose a black pin-striped number that her girlfriends had brought back for her, along with twenty-five other possibilities, from a shopping expedition to the Woodbury Common outlets.) Sotomayor had undergone weeks of “murder boards,” during which White House staff quizzed her on the latest legal developments (she had business law down but was less familiar with the administrative canon) and coached her on how to handle the senators (never interrupt a senator’s question—he is speaking for television). She was staying at a suite at the Crowne Plaza Hotel, downtown. Some nights, she went home and, surrounded by binders, ate cereal for dinner.
The hearing went twenty-two minutes before the first mention of “wise Latina.” Senator Jeff Sessions, the Republican from Alabama, intoned, “I think it is noteworthy that, when asked about Judge Sotomayor’s now famous statement that a ‘wise Latina’ would come to a better conclusion than others, President Obama, White House Press Secretary Robert Gibbs, and Supreme Court Justice Ginsburg declined to defend the substance of those remarks.” Sotomayor regarded the senators with withering impassivity. When Senator Lindsey Graham, of South Carolina, who emerged as Sotomayor’s most eloquent and provocative antagonist, delivered one of the hearing’s most memorable lines—“If I had said anything remotely like that, my career would have been over”—she looked as though she had smelled something bad.
The senators presented themselves as abstract platonic guardians of the American polity, without acknowledging—or perhaps being aware of—the fact that, if they had never said anything sticky about race or about gender, they had also very infrequently been asked to say anything about race and gender at all. (“The Daily Show” lampooned the charge that Sotomayor was a racist with a mock-exposé of the Bronxdale Houses, the “exclusive lily-brown gated community” where Sotomayor grew up.) Sotomayor made her infamous comment—“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”—as part of a speech entitled “A Latina Judge’s Voice.” She delivered the speech, and others like it, many times to Latino lawyers and law students. On such occasions, Sotomayor had been drafted as a cheerleader. The speeches were inspirational and banal—she would always be, she said, “a kid with curls running through the streets of Puerto Rico chasing raindrops on summer afternoons and eating piraguas with the syrup running down my face”; her Latina identity was an “ember that blazes forever.”
In contrast to her flat judicial writings, Sotomayor’s public speeches are full of hyperbole. In a sentimental mood, she has a tendency to lapse into a wide-eyed, superlative mode: having her portrait hung at a health clinic was “the most important honor of my life”; her meeting Morgenthau was its “most special moment”; the late Judge Fred Parker had an “intellect as deep as the Grand Canyon, and . . . a heart as big as a lion.” Ultimately, the Latina comment didn’t make sense—a Latina woman would reach a better conclusion about what?
Sotomayor’s opponents made much of the contrast between Sandra Day O’Connor, the supposedly restrained neutral incrementalist, and the hysterical empathizing activist Sotomayor, who, the Fox News analyst Linda Chavez commented on the fourth day, “has drunk deep from the well of identity politics.” In 1991, O’Connor had made her own much cited wise-woman quote. However, it was not actually O’Connor’s; she had been recapitulating a statement by a Minnesota State Supreme Court justice, Mary Jeanne Coyne, that “a wise old man and a wise old woman reach the same conclusion” when deciding cases. In fact, O’Connor has explicitly contradicted the idea that men and women—wise or not—see things identically. In her 2003 book “The Majesty of the Law,” she discussed a study in which researchers found that female judges were more likely than male judges to send women to jail. “I believe this was true when I was a trial judge, and I think I know why,” O’Connor wrote. “Male judges are more likely to believe a sob story from a female defendant. Female judges know better.”
“Empathy” became the code word for reaching decisions on issues of race and gender that Republican senators didn’t like. And “code words,” decried by Senators Ted Kaufman and Sheldon Whitehouse, became the code word for making comments that Democratic senators thought were racist and sexist. No one talked about how empathy can relate to class and how, when it does, we think it’s a good thing. It would be hard to imagine anyone raising objections to Sotomayor’s drawing on her knowledge of life in New York’s financially precarious classes to conclude, as she did in Krimstock v. Kelly (2002), an impoundment case, that “a car or truck is often central to a person’s livelihood or daily activities,” or, in Lin, that “we simply have no foundation on which to conclude that all couples have the financial resources to escape at the same time.”
Sotomayor has an awareness of the practical, almost bodily concerns that can affect the law. “Prepare a small volume of just the critical documents so the judge can refer to them easily or take them home without losing an arm,” she once counselled a group of young attorneys. To another, she said, “Filing and serving a restraining order on the eve of a holiday may be procedurally permissible, but it is both inhumane and unfair.” In a speech, she recalled Titi Gloria, a seamstress, babysitting her in a dark, airless sweatshop. “Titi would vigilantly chase me away from the door all day long,” Sotomayor wrote, adding that it dawned on her only later that they were hiding from the police. “Forget first Latina,” Ted Shaw, her former classmate, said. “She’s the only Justice I am aware of who’s ever grown up in a housing project.”
It was not, despite the contortions of the Republicans, actually a new, a partisan, or a particularly radical idea that different judges judge differently. Justice Scalia, the self-proclaimed originalist, acknowledged in “Making Your Case: The Art of Persuading Judges,” a how-to guide for attorneys which he co-wrote last year, that “all sorts of extraneous factors—emotions, biases, preferences—can intervene” in the courtroom. (Scalia recommends doing “a little computer research” to detect a judge’s love for fly-fishing or fine wines.) Sotomayor’s “wise Latina” comment was unsettling, and a little depressing, not because it went too far but because it was too limited, reducing the spectrum of decision-making to some sort of biological determinism. “The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others,” she wrote. The robotic dispensation of justice is a fiction, but Sotomayor had neglected the possibility of making different choices by our intellects or by our ethical convictions.
In practice, Sotomayor has often favored arid appeals to logic or precedent. So people’s arms hurt when they have to carry heavy briefcases—who cares? Sotomayor essentially wrote in Singh v. City of New York (2008), in which she denied the claim of a group of fire-alarm inspectors that they should be paid for having to lug documents on their commutes. “One of the things that stuck with me was that she never used the vilification approach,” Peter A. Furst, who represented the Tarzan Burglar, said. “She didn’t do what many prosecutors will do, which is to take the advantage to make the person look ugly.” In a case in which the federal government was attempting to seize the East Village clubhouse of the Hells Angels Motorcycle Club, Sotomayor, as a district-court judge, chided prosecutors for playing upon loaded stereotypes of the biker gang. “The Government ostensibly believes that the confessed criminality of the individual members of the HAMC group, and perhaps even their unorthodox lifestyle, should have enveloped the Building in a cloud of criminality in the jurors’ mind,” she wrote. “Such, however, was not the case.” Tom Goldstein, of Scotusblog, has found that, in ninety-seven race-related opinions, Sotomayor dissented from her colleagues four times, and only once (in the Gant case) saw racial discrimination where they did not.
Plowing through life with workmanlike cheer—“She has no depressive affect,” Steve Skulnik recalled—Sotomayor has often seemed immune to the fears and insecurities that have plagued so many people who find themselves, as adults, in very different stations from those in which they grew up. “To her great credit, she has very little of el complejo colonial, the doubts that afflict so many of us,” Judge José Cabranes, Jr., of the Second Circuit, told me. But Sotomayor, despite her outward equanimity, has been a quiet seeker, contemplating, in her undramatic way, what she has called “the pathology of successful Latinos.” As much as she has celebrated her Puerto Rican identity, she has also sought to escape what she has called “the gripping and narrowing tentacles of life experiences.” When Senator John Cornyn, of Texas, asked her whether she believed that physiological differences influenced judging, Sotomayor replied, “Ignoring things and saying, you know, it doesn’t happen isn’t an answer to a situation.”
In a profession that values the illusion of infallibility, Sotomayor has been unusually willing to acknowledge murky areas. In her writings and speeches, she has returned to key texts: Stephen Carter’s “Reflections of an Affirmative Action Baby”; Carol Gilligan’s “In a Different Voice”; Judith Resnik’s “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges”; studies in the journal Judicature on how women affect judging. She acknowledges a tension between the ideal (experiences do not influence us at all) and the real (experiences affect us), and suggests that, while we should continually work toward the ideal, we ignore or neglect the real at our peril. From Resnik, Gilligan, and the Judicature essays, she takes the idea that women are different from men, combining it with Stephen Carter’s thesis that there is no single “people of color” voice (or “female voice,” for that matter), to conclude that “excluded people” are different, but they are not all different in the same way. Another of Sotomayor’s influences is Judge Jerome Frank’s 1930 classic “Law and the Modern Mind.” If, according to Frank, the world can be divided into two classifications—“rule skeptics,” who question formal legal rules, and “fact skeptics,” who question the particularities of a case—then Sotomayor might be considered a self-skeptic: someone who, like a golfer videotaping her swing, is constantly checking herself for tics and hitches.
The third day of the hearings, eleven men in blue uniforms filed into the Judiciary Committee chamber. They were New Haven firefighters, amassed in support of one of their own—Frank Ricci, a white man who had been denied a promotion when he passed a test that many of his black and Hispanic colleagues failed. Outside, a woman with flip-flops and a beach ball brandished a sign: “I can’t swim, but thanks to Sonia Sotomayor I’m a lifeguard.”
Ricci, who is dyslexic, had passed the test to become a lieutenant after studying eight hours a day and spending more than a thousand dollars on study aids. The city, fearing a lawsuit under the principle of disparate impact—the Supreme Court had established that an employer could be held liable for employment practices that were in effect discriminatory even if they were unintentional—declined to certify the test results. Ricci and nineteen colleagues sued New Haven for discriminating against them on the basis of their race. In district court, Judge Janet Bond Arterton dismissed Ricci’s lawsuit, writing, “It is necessarily undisputed that, had minority firefighters challenged the results of the examinations, the City would have been in a position of defending tests that, under applicable Guidelines, presumptively had a disparate racial impact.”
In December, 2007, a three-person panel consisting of Sotomayor, Judge Rosemary Pooler, and Judge Robert Sack heard the case on appeal. The following February, they issued an unsigned, unpublished affirmation of Arterton’s opinion. Judge Cabranes, reading about the case in the New Haven Register, was shocked at what he perceived as the panel’s attempt to bury a politically inflammatory case.
Cabranes had been a mentor to Sotomayor for three decades, but they had grown apart in recent years. Cabranes had adopted more conservative views, particularly on matters of civil rights, and it had become increasingly likely that Sotomayor would be appointed the first Hispanic on the Supreme Court—a prize that had eluded Cabranes, a pioneer of the Puerto Rican bench. (“How did Satchel Paige feel about Jackie Robinson?” Drew Ryce, a friend of Sotomayor’s, told the Times.) Cabranes, in an embarrassing rebuke to Sotomayor and her fellow-panelists, requested that the Second Circuit rehear the Ricci case en banc. The panel then issued a per-curiam opinion—an anonymous decision on behalf of the panel as a whole—asserting, in eight sentences, that while “we are not unsympathetic to the plaintiffs’ expression of frustration . . . it simply does not follow that [Ricci] had a viable Title VII claim.” Three days later, Cabranes’s motion was defeated in a politically fractured 7-6 vote. (As the National Journal pointed out, all but one of the seven were Clinton appointees, while five of the six were appointed by Bush.) Cabranes issued a strongly worded dissent, urging the Supreme Court to review the case.
Sotomayor and her colleagues assert that they issued the summary order because of the thoroughness of the district-court opinion, or, alternatively, because of overwork. Their excuses are less than wholly convincing. Sotomayor is politically savvy—during the hearings, she did not hesitate to distance herself from either her former boss George Pavia, who had made the mistake of telling a reporter that Sotomayor would definitely be pro-choice (“He’s a corporate litigator, and my experience with corporate litigators is that they only look at the law when it affects the case before them,” she told the senators), or Obama (“I wouldn’t approach the issue of judging in the way the President does”). When Lindsey Graham attempted to trap her into repeating the “wise Latina” comment for the evening news, she simply sat it out as he shuffled through his papers, making a show of not being able to find the quote.
In three days of questioning over Ricci, Sotomayor managed to make an incendiary case sound like a civil-service dispute whose disposition was commanded not by notions of an ideal civil society but strictly by the facts at hand—which, to a judge unwilling to set aside precedent in the name of fundamental fairness, it was. On June 29th, the Supreme Court effectively changed the law, with a 5-4 decision overturning the Second Circuit opinion that Sotomayor had joined.
In all the commotion over Ricci and “wise Latina,” the senators had missed what was perhaps a more inflammatory statement. In 2000, at the graduation ceremony of the Bronx Leadership Academy, Sotomayor had said, “It is so exciting to be at the door of a major change in one’s life. That’s why brides and bridegrooms smile so much at weddings and why so many tears of joy are shed when a wanted child arrives”—her unprompted use of the phrase “wanted child” acknowledging the possibility that an expectant parent could feel otherwise.
By August 6th, the day that the Senate was scheduled to vote on Sotomayor’s confirmation, a meltdown had not occurred. It was clear, as it had been all along, that Sotomayor would be the hundred and eleventh Justice of the United States Supreme Court. Sotomayor, back in her chambers at the Moynihan Courthouse, in New York, sent an e-mail to the building’s entire staff:
The best estimate of Senate vote count is now some time after 4:00pm Thursday, August 6. I want to share that moment with my entire Court family and the Chief Judge is graciously making Room 850 here at 500 Pearl available to watch the count. The entire building will be invited to watch, but only if they want to come. . . . I am both excited and nervous. I thank you all for the support you have extended to me throughout our time as friends. Sonia.
Many members of the Supreme Court have been famous, but Sotomayor has become the first celebrity Justice. This fall, the Upright Citizens Brigade Web site hosted a spoof video entitled “Sonia Sotomayor Speed Date”: “After Dad died, my mother, Celina Sotomayor, moved my brother and I into a Buick Sentry parked under the Whitestone Bridge,” a man dressed in drag, with a “HELLO, MY NAME IS SONIA” name tag, intones, sounding like Julia Child doing Don Corleone. (Then, flirty and distracted, “Oh—you’re a chef? Oh, yum!”) Eva Longoria Parker, from “Desperate Housewives,” bragged to the Hollywood Reporter that she had danced with Sotomayor at a Latin-music festival at the White House: “I found her and said, ‘I’ve been waiting to meet you.’ And she said, ‘I’m really proud of you, Eva. Can I have a photo?’ ” It’s hard to imagine that Cindy Adams’s Post column would feature any other Justice shopping at a West Side lingerie store for a “fancy shmancy” bra.
In September, Alex Rodriguez and Bettie Baca, his wife, were in New York for a few days, sleeping on Sotomayor’s pullout couch. Sotomayor mentioned that she had been invited to dinner at Marc Anthony and Jennifer Lopez’s house, and a personal shopper was coming over to help her find something to wear. Later, Rodriguez ran into Manny Mirabal, a former president of the National Puerto Rican Coalition. “I just got off the phone with Marc Anthony,” Mirabal said. “I was trying to talk to J-Lo, but she had just gone out with her shopper to pick out an outfit to impress Sonia Sotomayor.”
The National Law Journal, using the Court’s second two-week cycle of arguments as a representative period, calculated, in November, that Sotomayor, who asked a hundred and forty-six questions in the course of thirteen arguments (average: 11.2 questions per argument), had asked more questions than Chief Justice John Roberts, Jr., and Justice Alito at comparable periods in their first terms. If the first year of the job, as Justice Souter—a nonentity in his early days on the Court—once asserted, is like “walking into a tidal wave,” Sotomayor is bodysurfing. In Graham v. Florida, which the Court heard in November, her questions to the state’s lawyer, Scott Makar, nearly amounted to a soliloquy on the cruel and unusual nature of subjecting juvenile criminals to life without parole.
Perhaps in an effort to absorb quickly the mores of the Court, Sotomayor has hired experienced clerks, including one who spent the past year clerking for Justice Stevens and another who clerked for Justice Ginsburg. Near her desk is a framed cartoon by the Mexican-American illustrator Lalo Alcaraz. Against a lavender background, a girl with a pink bow in her dark hair sits at a desk, banging a gavel. A nameplate in front of her reads “Judge Lopez.” To her right is a makeshift witness box, inhabited by a Teddy bear. The jury box is full of stuffed animals. Taped to the wall behind her is a photograph of Justice Sonia Sotomayor.
Assessing, or canonizing, Justices before they have had a chance to judge is a chancy proposition. The consensus when Scalia joined the Court was that he’d be a consensus builder. People who know Sotomayor and her work offered various historical analogues as auguries of her future. “I see her in some ways as like John Paul Stevens, in that he also has that thoughtfulness and that unwillingness to be swayed on either side by histrionics,” Stephen Carter, the Yale law professor, said. Kenji Yoshino, a law professor at N.Y.U., cited Powell and O’Connor (“She’ll decide issues on narrow grounds, she’s not pre-committed to a constitutional mode of interpretation”), while Judge Miriam Goldman Cedarbaum, Sotomayor’s former colleague on the Southern District court, likened her to John Marshall (“He liked to chat with people in the village square and pass the time with all sorts of people. He was a democrat, with a small ‘d’ ”). To Judge Guido Calabresi, another former colleague, Sotomayor defied prophesy altogether. “Her whole experience as part of three discriminated-against groups, and ones which are not always coherent with each other—I’m talking about ethnicity, gender, and disability—plus her legal experience, in really being a district judge, really being a Court of Appeals judge, makes her different from really any Justice that I can think of,” he said.
In his book “The Supreme Court,” the late Chief Justice William Rehnquist described the Supreme Court as “a collegial body where long-term success depended on winning over others of quite different backgrounds.” On the Second Circuit, Sotomayor had a rule that endeared her to her colleagues: if a request from another judge comes in, she instructed her clerks, drop whatever you’re doing. On the Supreme Court, Sotomayor has already begun to win allies. Late in the summer, President Obama held a reception in her honor at the White House. The eighty-nine-year-old Justice John Paul Stevens, who has long shunned White House ceremonies for new Justices, showed up, telling people that he felt as though he’d known Sotomayor his entire life.
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