The Oath: The Obama White House v. The Supreme Court Read online

  The Supreme Court reversed Wood’s holding by a vote of 8–1. (Only Stevens dissented.) The reason was narrow. Indeed, the Scheidler case demonstrated how cases involving terrible injustices can turn into bloodless disputes about legal technicalities in the Supreme Court. The justices held that the protesters did not “obtain” any of the clinics’ equipment, so that meant their activity did not fit the definition of extortion under the racketeering law. The case went back to Wood and the Seventh Circuit, which again ruled for NOW, and for a second time in the same case, the justices overturned Wood’s ruling, this time unanimously. (Alito did not participate.) It was true that these cases, as they arrived at the Supreme Court, concerned fairly arcane matters of federal statutory interpretation, not abortion law per se. But it was also true that Supreme Court confirmation fights did not concern such subtleties. In crude terms, the Supreme Court had twice reversed Wood’s rulings on abortion—and even Ruth Bader Ginsburg did not support her position.

  To which Greg Craig said, “Good for Wood! This is why we need someone like her on the Supreme Court.” Wood was both a fighter and a thinker, and she could be the voice of their side against Scalia. As a veteran appellate judge, Wood would hit the ground running.

  For neither the first nor the last time during his tenure at the White House, Craig was out of step with his colleagues. More importantly, Craig misread his boss. Obama wanted someone who could put together winning coalitions at the Court—more than he wanted someone who could write a good dissent. Obama liked and admired Wood, but the benefits of appointing her were, from a political perspective, unclear. Not so for Wood’s leading competitor. The closer Obama looked at Sonia Sotomayor, the better—in every respect—she seemed.

  In the brusque shorthand of political life, White House officials later described Sotomayor’s story as “an American story.” It was an extraordinary one.

  Celina Báez and Juan Sotomayor were both born in Puerto Rico and came to the United States as part of the great migration that transformed New York during and after World War II. Celina worked as a telephone operator at a hospital, Juan as a tool-and-die maker in a factory. Their daughter, Sonia, was born in 1954, and they moved into an unfinished Bronxdale housing project in the South Bronx with the poetic name of Building 28. (Her brother, Juan, was born three years later.) Their lives were hard and soon got even harder. When Sonia was eight, she was diagnosed with type 1 diabetes. The following year, Juan Sotomayor Sr. died suddenly of a heart attack at the age of forty-two.

  Celina was a striver, committed to bettering herself and making sure that her children could do the same. After her husband’s death, she started speaking English at home; as a consequence, Sonia speaks Spanish fluently but her younger brother barely speaks it at all. Celina obtained a GED and then trained to become a practical nurse. The job paid better, and it taught Celina to manage her daughter’s illness. She placed Sonia and Juan in highly regarded Catholic schools. The reasons were educational, not religious. In an oft-told tale, Celina invested in an expensive set of encyclopedias—supposedly the only one in the building—for her two children. The neighborhood was deteriorating, and Celina moved her family to Co-op City, the sprawling development near the Westchester border. While keeping her job at the hospital, caring for her own kids, and serving as a kind of unofficial doctor for her neighbors, Celina commenced studies to be a registered nurse. (The exodus of middle-class families like the Sotomayors in the seventies helped turn the South Bronx into a national symbol of urban decay.)

  Sonia won a scholarship to Princeton, where she experienced immediate culture shock. After a rocky freshman year, she settled in and became successful, socially and academically. She wrote a thesis about Puerto Rico’s independence movement, graduated summa cum laude, and won acceptance to Yale Law School. (Her younger brother became a physician.) For all her achievements, Sotomayor held no illusions about one of the reasons for her success. As she said in a speech after she became a judge, “I am a product of affirmative action. I am the perfect affirmative action baby. My test scores were not comparable to that of my colleagues at Princeton or Yale, but not so far off the mark that I wasn’t able to succeed at those institutions.” In any case, she thrived at Yale, too.

  Toward the end of law school, Sotomayor happened to show up at a career-day presentation by Robert Morgenthau, the legendary Manhattan district attorney. After sizing her up, Morgenthau arranged for a job interview the next day, and she was quickly hired. Sotomayor worked her way up in the office and capped her career there with a victory in the tabloid-ready Tarzan Murderer case. Richard Maddicks was a familiar New York type in the seventies and eighties—the desperate junkie who preyed on his neighbors to support his habit. What distinguished Maddicks was his ability to jump from building to building while making his rounds, a circuit that produced seven shootings and four murders. In 1983, thanks to Sotomayor and a fellow prosecutor, Maddicks was convicted and received a life sentence.

  Sotomayor tired of the never-ending misery in the criminal justice system and left the office after only five years to join a small private firm. (After graduating from Princeton, she had married her college boyfriend, whom she had known since high school; he was in graduate school in molecular biology for much of the marriage, and their commuting relationship didn’t last. They divorced after seven years. She was later engaged, but did not marry again.) Like many other young lawyers, Sotomayor was guided both by altruism and by ambition. In 1980, she joined the Puerto Rican Legal Defense and Education Fund—a leading civil rights organization. While in private practice, Sotomayor was named to the State of New York Mortgage Agency board; the next year, thanks to Morgenthau, she gained a seat on the New York City Campaign Finance Board. In 1986, she toured Israel with a group of Latino activists. When George H. W. Bush was president, the New York senators divided the judicial appointments so that Al D’Amato received three appointments for every one for Daniel Patrick Moynihan. In 1992, Moynihan heard about Sotomayor and put up her name; at the age of thirty-eight, she was confirmed unanimously for a federal judgeship in lower Manhattan.

  As with the Tarzan Murderer, a celebrated case brought Sotomayor wide public notice on the district court. A labor dispute had destroyed the 1994 major league baseball season, including the World Series, and the 1995 season was in jeopardy when the battle between the players and the owners wound up in her courtroom. On March 30, 1995, the union demanded that the owners continue free-agent negotiations and salary arbitrations while the two sides negotiated an agreement. Sotomayor told the lawyers that she didn’t know the history of their case, but “I hope none of you assumed … that my lack of knowledge of any of the intimate details of your dispute meant I was not a baseball fan. You can’t grow up in the South Bronx without knowing about baseball.” She issued an injunction reinstituting free agency, the players went back to work, and the 232-day dispute soon ended. It was a classic Sotomayor moment—decisive and unequivocal. It was the kind of behavior that generally wins praise for male judges, if not always for their female counterparts. Certainly, it did not hurt that Sotomayor became famous as the judge who saved baseball.

  Bill Clinton nominated her to the Second Circuit two years later, and she soon became known—even to Barack Obama, whom she had never met—as the Democrats’ leading Supreme Court justice-in-waiting.

  But that was only part of the story, especially for Obama. Although Sotomayor flourished on the Second Circuit, she kept her ties to the Bronx. She remained a frequent visitor to her grammar school and high school; she was godmother of five children, including the son of her dentist; she gave talks to Hispanic student groups all over the country. As a public figure, Sotomayor had a stump speech of sorts. The one she gave in 2001 at the University of California, Berkeley, was typical. These kinds of inspirational talks often consist of banalities, but not Sotomayor’s. Her talk was serious and substantive—with a quietly radical message.

  Sotomayor began with the customary paean to her roots,
in her case as a “Nuyorican.” “For me, a very special part of my being Latina is the muchos platos de arroz, gandules y pernil—rice, beans, and pork—that I have eaten at countless family holidays and special events,” she said. “My Latina identity also includes, because of my particularly adventurous taste buds, morcilla—pig intestines—patitas de cerdo con garbanzos—pigs’ feet with beans—and la lengua y orejas de cuchifrito—pigs’ tongue and ears.”

  Soon enough, Sotomayor took aim at one of the hardest questions surrounding affirmative action. Why does it matter if there are more women, or minorities, on the bench? She quoted a former colleague on the Manhattan federal trial court, Miriam Cedarbaum, who “sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote.” Sotomayor went on, “Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.”

  But that wasn’t Sotomayor’s opinion. She embraced the view that women and minorities brought something different to the bench. “Our experiences as women and people of color affect our decisions,” she said. “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 continued, “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.” But in the crucial passage in the speech, Sotomayor said she disagreed with O’Connor’s view. “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.” According to Sotomayor, gender and ethnicity among judges made a substantive difference in results. “Personal experiences affect the facts that judges choose to see,” she said. “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

  Sotomayor, Wood, Kagan, and Napolitano had all submitted enormous volumes of material, including all their public remarks, to the White House as part of the vetting process. For Sotomayor, the “wise Latina” speeches, as they became known, immediately jumped out as problems. But how big?

  Obama wanted the new justice confirmed in time for the first Monday in October 2009, which meant that he could not tarry in making his choice. The Senate went into recess in August, so the hearings had to take place by the end of July. Souter had quit on May 1; Obama needed to nominate someone by the end of the month. All four candidates came to the White House for interviews with the president; Kagan and Napolitano received the clear message, from Obama and others, not to get their hopes up. It wasn’t their time.

  Wood or Sotomayor? An abortion problem or an affirmative action problem? By that measure, Wood had the advantage. In rough terms, the public was about 60 percent pro-choice; on affirmative action, support was closer to 30. (There are wide variations depending on how the poll questions are asked.) As Obama knew better than most people, the acceptable discourse about race and identity was fairly narrow. It was fine to say, as Sotomayor did, that it was important for women and minorities to have role models. It was acceptable, too, to say that diversity was a strength in any institution. But O’Connor, with her understanding of public opinion, knew the limits of the idea. It was not acceptable to say that men and women judges (or blacks and minority judges) actually reached different, or better, opinions in cases because of their backgrounds. But that was what Sotomayor had said in her speeches—repeatedly.

  Sotomayor had another problem on that score. As it happened, the Supreme Court had just heard an appeal from the Second Circuit on an affirmative action case where Sotomayor had been on the panel. In 2003, a group of New Haven firefighters took a standardized test for promotions. Whites passed the test at double the rate of blacks, and the local Civil Service Board, worried about being sued by the failed black applicants, invalidated the test. Instead, nineteen white firefighters and one Hispanic who passed the original test sued for their promotions. In a brief order, Sotomayor and two other judges on the Second Circuit ruled against the white firefighters and upheld the decision to throw out the test. White House soundings on Capitol Hill produced almost no support, even from liberals, for Sotomayor’s position. “Diversity” was one thing, but blacks and whites should have to play by the same rules or, in this case, take the same test.

  Obama sought advice from Biden, Craig, Butts, Susan Davies, and Biden’s chief of staff, Ron Klain, who had worked on Ginsburg’s and Breyer’s nominations in the Clinton White House and was Biden’s top aide in the Senate during the Clarence Thomas hearings. No staffer had more experience with Supreme Court nominations than Klain. There were sixty Democratic votes in the Senate. Either Wood or Sotomayor was likely to be confirmed. Obama simply had to make his choice.

  The decision revealed a great deal about Obama. In his interview with Sotomayor, the president took particular note of how she had stayed in touch with her former neighborhoods in the Bronx. He sensed an authenticity in her, and no one had to remind the president of the political appeal of appointing the first Hispanic to the Supreme Court. If he had a chance to make history in this way, with an impeccably qualified nominee, Obama was going to do it.

  There was something more, too. In a way, Obama thought that Sotomayor’s “problems” were also advantages. It was impolitic to say that race and ethnicity mattered, but the first black president, far more than most, knew how much they did. Obama was often described by others as “postracial,” but he didn’t see himself that way. After all, as a young man Obama had written an entire book about coming to terms with his racial identity. Around the same time as he was making his choice for the Supreme Court, Obama made an uncharacteristically indiscreet revelation. He was asked about an incident where Henry Louis Gates Jr., a renowned Harvard professor and friend of Obama’s, was arrested on the front steps of his home in Cambridge. Gates was returning from a long overseas trip and found the front door to his home jammed. He struggled to open it, and a neighbor called the police, thinking a burglary was in progress. The police came and exchanged words with Gates, and he was arrested.

  A few days later, a reporter asked Obama for his opinion. “Now, I’ve—I don’t know, not having been there and not seeing all the facts, what role race played in that,” Obama said. “But I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home. And number three, what I think we know separate and apart from this incident is that there is a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact.” Obama quickly came to regret his remarks, which were indeed ill-informed about the specifics of the incident. (By way of apology, in the summer, he held a “beer summit” at the White House with Gates and James Crowley, the Cambridge police sergeant who made the arrest.) Still, the Gates incident was revealing. Obama had never been arrested, but he knew what it was like to be a black man facing the police. So, in a different way, did Sonia Sotomayor. That was more than fine with the president.

  Heading into Memorial Day weekend, Sotomayor had been told she was the likely nominee but that she would hear the official word from the president probably on Monday. (White House officials had consulted several doctors and were assured that Sotomayor’s diabetes would not preven
t her from living a normal life span.) On the afternoon of the holiday, Obama called Klain and asked him to run the negatives on Sotomayor one more time. Klain rehearsed the expected attacks: intemperate, too liberal, too pro–affirmative action. Obama was unpersuaded by the case against her and told Klain he would make the formal offer that night.

  In the meantime, Sotomayor—nervous and unable to tell anyone what was going on—went to her chambers on Memorial Day, if only to fill the time. Relatives called for updates, and there were none. Finally, she decided to return to her apartment in Greenwich Village and pack for the trip to Washington—just in case. At 8:10 p.m., Obama called her cell phone. When he made the offer official, Sotomayor began to cry.

  “I want you to make me two promises,” Obama said. “First, you have to remain the person you are. And second, to stay connected to your community.” Happy to oblige, the nominee told the president.

  Obama and his staff had been so caught up in the details of the selection process that they weren’t prepared for what happened the next day, when he announced Sotomayor’s nomination in the East Room. There were people, lots of them, weeping with joy. Many of them did not even know Sotomayor personally. Supreme Court nominations are cultural markers in the United States—Louis Brandeis in 1916, Thurgood Marshall in 1967, Sandra Day O’Connor in 1981. The dates are not coincidental, for they mark coming-of-age moments for Jewish Americans, African Americans, and women. May 26, 2009 was such a date for Hispanic Americans. In a White House hallway afterwards, Obama told Ron Klain, his designated naysayer, “I feel great about this now.”