Magazine | November 3, 2014, Issue

A ‘Wise Latina’ Rises

Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice, by Joan Biskupic (Sarah Crichton/Macmillan, 289 pp., $26)

Breaking In takes its title from Sonia Sotomayor’s reputation for interrupting counsel and colleagues from the bench. As we learn in the book, Sotomayor once said she was trying not to break in so much — though she found it hard to stop. Breaking in was what she did.

The book’s strong suit is a wealth of detail about the race between Republicans and Democrats for the prize of appointing the first Hispanic justice. It is a primer for anyone with large ambitions, as well as a cautionary tale, since the message conveyed is that skillful manipulation of identity politics may carry the day over more substantial achievement. This is, of course, an old story for both parties, which have at times filled regional, religious, racial, and gender slots with candidates who eclipsed other, arguably better qualified, aspirants.

Biskupic’s book is well balanced, setting forth an array of views on Justice Sotomayor. A reader’s reaction may depend on his or her taste for Sotomayor’s relentless self-promotion and the highly politicized process of appellate appointments. Biskupic examines the history of such Hispanic candidates for a Supreme Court nomination as José Cabranes, scuttled when a whiff of moderate judging was detected, and Miguel Estrada, doomed as, heaven forfend, an “inauthentic” Latino. Her exhaustive reporting exposes the truth that, when it comes to left-wing identity politics, ideological orthodoxy trumps actual diversity every time.

The book opens with an arresting account of Sotomayor in a bold charm offensive at the 2010 Supreme Court end-of-term party. The story has to be read in full to be believed: Sotomayor brought portable salsa music, launched into a solo salsa, then beckoned one justice after another to join her. Her last quarry was Justice Ginsburg, who was grieving for her husband who had died just three days earlier. Though Ginsburg tried to resist the relentless Sotomayor, she took a few steps — and then put both hands on Sotomayor’s cheeks and said, “Thank you.” This reviewer saw in Ginsburg’s gesture the diplomacy of a wise Jewish mother saying, “Please stop.” Biskupic reports that many present felt the justice had crossed personal and professional boundaries and revealed an undue self-regard. Biskupic’s choice of this moment to open her book is emblematic both of the character of the justice and of the book’s main theme — Sotomayor’s single-minded Latina-American conquest of a seat on the Court.

Biskupic makes the case that the timing of Sotomayor’s ascent was “stunning”: She was able, at every turn, to strike at a moment where a Hispanic and female judge would make for great public relations at the district, circuit, and finally Supreme Court levels. Ever the canny political operator, Sotomayor barely warmed her seat on the High Court before penning an autobiography that would capitalize on the momentum. Her best-selling book has created a large public following and clothed her in the persona of “the people’s justice” — stressing the theme of empathy that accompanied her nomination.

Biskupic mines the memoir for much of her portrayal, thus reinforcing Sotomayor’s cultivated public image of a compellingly awkward outsider who nonetheless achieved greatness despite a difficult childhood and adjustment to the world of the Ivy League. But Biskupic is an acute social observer, and the more nuanced portrait of the woman that emerges from these pages includes aspects of a bull-headed, socially inept, and lonely careerist, uncomfortable with intimacy, who has not hesitated to vent her resentments of family and professional associates — an unexpected profile for a justice of empathy. Biskupic asserts that, unlike the justice whose appointment immediately followed hers, Elena Kagan, Sotomayor will probably not be a leader or even a strategically skilled player on the Court, that the very popularity that Sotomayor has achieved outside the Court may prevent her from being an effective force within it.

Biskupic’s book also provides a nuanced counterweight to Sotomayor’s book in that it documents a remarkably easy rise to power. Sotomayor’s ascent through the federal bench was so smooth that it came as a shock when, just as her name was topping the short list, two liberals, Jeffrey Rosen and Laurence Tribe, pulled out a cudgel and a poison pen, respectively, and did their best to portray her as a third-rate candidate lacking the smarts and the political skills required for the job. Biskupic seems less interested in discussing whether Rosen and Tribe were making valid points than in detailing how Sotomayor was able to deflect such harsh attacks from her own party.

Though she duly reports Sotomayor’s thin résumé before going on the federal bench, and her undistinguished record of judging thereafter, Biskupic focuses on how Sotomayor’s skillful use of her Ivy League credentials, and her relationship with Hispanic interest groups, trumped all efforts to derail her nomination; but she doesn’t acknowledge that Sotomayor’s academic attainments amount to a dime a dozen on judicial short lists. One would hope that a career of great judicial thinking and opinion-crafting would set apart those who should be appointed to the nation’s highest court. Biskupic appropriately raises the question — was this judge of the caliber that should ascend to the Supreme Court? — but ultimately never rises above mere reportage on the various assessments of this critical point.

The same is true of Biskupic’s treatment of the “wise Latina” remark that Sotomayor was later to recant as a failed “rhetorical device.” In keeping with her view of judging as politics, Biskupic reports on the popularity of the “wise Latina” phrase with the public, and largely neglects the serious concern — articulated by David Brooks — that Sotomayor’s speeches create an “impression that she was a racial activist who is just using the judicial system as a vehicle for her social crusade.” The book also fails to deliver fresh insights on the justice’s nascent Supreme Court jurisprudence, offering mostly reportage of how a particular vote was achieved and lacking critical analysis of her judicial opinions.

Like Biskupic’s earlier book on Justice Antonin Scalia, this book is long on biography and short on discussion of judicial philosophy. It appears that, unlike Scalia, Sotomayor did not grant Biskupic interviews, and therefore illuminating anecdotes of the kind that enlivened Biskupic’s book about Scalia are missing. It’s a shame: Biskupic is a good storyteller, and interviews could have offered some new material.

The book doesn’t question whether the politics with which it is so occupied are good, though the recitation of some of the political maneuvering is itself off-putting. An uncritical reader might just assume that this is how it should be. One would hope that this account suggests how Court appointments should not proceed. More likely it will serve as a template for the next aspirant seeking to employ the identity politics that successfully catapulted Sotomayor to the highest seat of her profession.

Margaret A. Little is an attorney in private practice in Connecticut concentrating on civil litigation and appeals. She wishes to disclose that she was a consultant to the plaintiffs’ legal team in the appeals on behalf of the New Haven firefighters in Ricci v. DeStefano, a case in which Judge Sotomayor was involved.

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