Reintroducing Sonia Sotomayor
Sotomayor’s nickname in her family was Ají (“hot pepper”). “Perhaps my eventual enjoyment of being a litigator owes something to the license it gave me to disagree more openly with people,” she wrote. These are, of course, traits expected of the Manhattan prosecutor and law-firm partner Sotomayor was before she was a judge, though you will be shocked to learn they redounded differently for a young Latina from the Bronx, sterling Princeton and Yale Law credentials notwithstanding. When David Souter retired in 2009 and word spread that Obama was considering Second Circuit judge Sotomayor, certain legal elites scrambled to dissuade him.
In public, there was Rosen’s piece. In private, there was the letter from Harvard professor Laurence Tribe that was later leaked to and published by Ed Whelan, the conservative lawyer who more recently became notorious for using Zillow to craft an improbable sexual-assault defense of Kavanaugh. Tribe was pushing for the appointment of Kagan, his sometime Harvard dean, and claimed Sotomayor was “not nearly as smart as she seems to think she is.” Tribe recanted soon after. “Literally everything Justice Sotomayor has said, written, and done as a Member of the Supreme Court since her confirmation in 2009 has confirmed my confession of error and President Obama’s wisdom in overcoming the doubts I’d expressed,” he told me in an email. “Her judicial opinions, including particularly her impassioned and logically rigorous and legally incisive dissents, have greatly enriched the jurisprudence from which a more enlightened and humane Court will be able to draw when the pendulum of judicial appointments swings back from the extreme rightward tilt of the current era.”
Some of the criticisms came by way of the speakers telling on themselves. “If you had come up with a list of people in our class that would be named to the Supreme Court,” one Yale Law classmate told the Yale Daily News, “she would not have been on it.” On TV and in print, the conversation became about box-checking. (“He’s supposed to pick a Latina,” Chris Matthews mused. “Would he do that just because that’s sort of the unfilled void in his patronage plan so far?” Richard Cohen wrote, “The ceiling is further lowered by the need to season the court with diversity, a wonderful idea as long as brilliance is not compromised.” One Mark Halperin headline read: “White Men Need Not Apply.”)
Her clerks are still, understandably, fuming. “These are all extremely tired racist and sexist tropes,” says one. “There’s plenty of white men appellate judges who, unlike her, say crazy shit, and no one says they’re bullies. They’re just ‘sharp-elbowed and intellectual.’ ” Another says, “I found it bizarre and frustrating that there was so much focus on her identity,” even though Sotomayor had excelled at elite institutions and held practically every kind of legal and judicial job. “There was no one more qualified.”
But her identity was something Sotomayor herself embraced, even when it could cost her. As an appeals-court judge in 2001, she gave a speech that would later dominate her confirmation hearings. “America has a deeply confused image of itself that is in perpetual tension,” she argued there. “We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in
a race- and color-blind way that ignores these very differences that in other contexts we laud.”
She said that, while she aspired to fairness, she questioned whether true neutrality was achievable. She quoted a favorite line of Sandra Day O’Connor’s that a wise old man and a wise old woman would come to the same conclusion on a case, but Sotomayor begged to differ, first because there could never be a universally agreed-upon definition of wise. “Second, 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,” she said. Her critics homed in on the word better and not the very next sentence explaining her point: “Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society.”