Clearing the Path for Sotomayor's Supreme Court Nomination
Two decades of confirmation battles
Every Supreme Court nomination is shaped by the confirmation battles that preceded it. Several important battles across two decades lie behind Barack Obama’s selection in 2009 of Sonia Sotomayor to be the first Hispanic justice.
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The two most obvious battles were over Sotomayor’s previous nominations as a federal district judge in 1991 and as a Second Circuit judge in 1997. Let’s start with the first.
It might seem curious that it was President George H.W. Bush, a Republican, who nominated Sotomayor to the Southern District of New York in 1991. But that curiosity is explained by the massive power that the Senate Judiciary Committee’s blue-slip privilege gave (and continues to give) home-state senators over district-court nominees.
New York’s two senators, Democrat Daniel Patrick Moynihan and Republican Al D’Amato, had established a power-sharing arrangement over district-court nominees in New York. The senator who was the same party as the president would dictate three of every four nominees, while the senator of the opposite party would get one of four picks. So it was that Moynihan selected the 37-year-old Sotomayor—and (as his aides would recount years later) he did so in the conviction that he was setting her on the path to the Supreme Court.
Lawyers in the Bush White House tried to resist: they saw Sotomayor as too left-wing, and they knew too that she was being groomed for higher office. But D’Amato’s own power rested on ensuring that Moynihan got his picks.
Sotomayor had her confirmation hearing in June 1992. As I’ve recounted, Senator Richard Shelby of Alabama, who was then a Democrat, was angry at his fellow Democrats over their mistreatment of Eleventh Circuit nominee Ed Carnes. He retaliated by holding Sotomayor’s nomination hostage: if Carnes didn’t receive a cloture vote on his nomination, Shelby wouldn’t free Sotomayor’s nomination. Democratic Senate majority leader George Mitchell promised Shelby that Carnes would get a cloture vote, and Sotomayor was confirmed without a roll-call vote in August 1992.
Sotomayor became the youngest federal judge in the Southern District of New York as well as the first Hispanic federal judge in New York. She also acquired the moderate camouflage of being a George H.W. Bush appointee whom the Senate had confirmed unanimously.
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In June 1997, President Bill Clinton nominated Sotomayor, age 43, to the Second Circuit. Republicans controlled the Senate. Al D’Amato of New York could well have used his blue-slip privilege (which was then also robust on appellate nominees) to block any action on her nomination, and he could have used the threat of a negative blue slip to deter Clinton from nominating her in the first place. But D’Amato, facing a tough re-election contest and seeking the votes of Hispanic constituents, was instead a big backer of Sotomayor.
Sotomayor had her confirmation hearing in September 1997, and, over the objections of Senator Jon Kyl and Senator John Ashcroft, the Judiciary Committee reported her nomination to the Senate floor in March 1998. But in June, amid rumors that Justice John Paul Stevens might resign, her nomination became (in the words of the New York Times) “embroiled in the sometimes tortured judicial politics of the Senate”:
Some Republicans did not want to consider the nomination because, they said, putting her on the appeals court would enhance her prospects for elevation to the Supreme Court.
In October 1998, the Senate confirmed Sotomayor’s Second Circuit nomination by a vote of 67-29. In November, D’Amato lost his re-election bid to Chuck Schumer by more than ten points.
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Other nomination battles helped keep Sotomayor’s path clear.
José Cabranes, who had won admiration for his work as a district judge in Connecticut since 1979, was prominently mentioned as a leading contender for the two Supreme Court vacancies that arose during Bill Clinton’s first two years as president, 1993 and 1994. On top of Cabranes’s strong qualifications and his relative youth (52), Clinton would have relished appointing the first Hispanic justice.
As Cabranes recounted to me, the White House invited him on short notice for an interview. But as Cabranes was preparing to head to the airport, a call came from the White House scrapping the interview. Cabranes soon heard that some feminist activists who were close to Hillary Clinton made clear that they would never find it acceptable for Bill Clinton to nominate Cabranes—who had in their eyes the dangerously macho combination of being male, Hispanic, and Catholic.
Another mischievous development complicated Cabranes’s candidacy in 1994. Yale law school dean Guido Calabresi informed colleagues that word was spreading among the liberal Hispanic groups supporting Cabranes’s candidacy that Cabranes’s daughter, as an aide to Vice President Dan Quayle, had written a memo assuring the George H.W. Bush White House that Cabranes was pro-life. The story was an utter fiction.
If Clinton had appointed Cabranes to the Supreme Court, it is unlikely that Obama would have been interested in nominating Sotomayor. The Hispanic first would already have been achieved. To be sure, Sotomayor would still have made history as the first female Hispanic justice. But in the diversity competition on the Left, there would have been much more interest in getting a liberal African American on the Court than a second Hispanic (indeed, a second Puerto Rican).
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The biggest reason that Senate Democrats targeted George W. Bush’s nomination of Miguel Estrada to the D.C. Circuit in 2001 is that they soundly saw that nomination as a stepping stone to the Supreme Court. The Left wanted to prevent Estrada from becoming the first Hispanic justice. As an aide to Democratic senator Dick Durbin put it in a memo to Durbin, liberal interest groups
identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.
Estrada had superb credentials. A partner in the appellate practice at a leading D.C. law firm, Estrada had worked for five years—nearly all of it in the Clinton administration—as a line lawyer in the Department of Justice’s Office of the Solicitor General (OSG), where he briefed and argued cases on behalf of the United States in the Supreme Court. He had also worked for two years as a federal prosecutor in the vaunted U.S. Attorney’s Office for the Southern District of New York. On top of his sterling academic achievements—graduate with high honors from Columbia University and Harvard Law School—Estrada had distinguished clerkships with Second Circuit judge (and Carter appointee) Amalya Kearse and Supreme Court justice Anthony Kennedy. Over the course of his career, Estrada had earned a reputation for dazzling brilliance.
In brief, he outshone Sotomayor. He was also seven years younger than she was.
Senate Democrats were so determined to defeat Estrada that they dramatically escalated the confirmation wars by deploying the filibuster against his nomination. their historic campaign of partisan filibusters. After seven unsuccessful cloture votes in 2003, Estrada withdrew his nomination.
If Bush had succeeded in appointing Estrada to the D.C. Circuit in 2003 (or earlier), there is a very good chance that he would have nominated him, at the age of 43, to one of the two Supreme Court vacancies that opened up in 2005. And if Bush had made history by appointing such an outstanding candidate as the first Hispanic justice, Sotomayor would have been much less attractive for Obama to select.
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What William Faulkner wrote of “webs spun long before we were born” is true as well of confirmation battles from years ago: “The past is never dead. It’s not even past.”