As I’ve be researching the years of nomination politics that led up to Sonia Sotomayor’s historic appointment as the first Hispanic justice, I’ve been reminded that appointments to top federal courts require not only top qualifications but an ability to maneuver in a sometimes ruthless system dominated by grudges and score-settling.

I’ve thought of this most recently in light of Tuesday’s scheduled Senate vote on whether to cut off debate and hold a straight up-or-down tally on Caitlin Halligan, formerly the New York state solicitor general, for a seat on the Washington, D.C.-based federal appeals court. (Cloture – which ends debate — requires a three-fifths majority, 60 votes; approval of a nominee needs only a simple majority, 51 votes.)

At this point, Halligan’s qualifications, which include a Supreme Court clerkship, the highest rating from the American Bar Association, and current service as general counsel in the Manhattan District Attorney’s office, have become almost beside the point. Nominations to the D.C. Circuit, often dubbed the nation’s second most important court, have become nearly as politicized in recent years as those to the Supreme Court.

The D.C. Circuit, which resolves disputes over civil rights law, environmental, health and labor statutes, and myriad other regulatory matters, has been a stepping stone to the Supreme Court. Chief Justice John Roberts served on the D.C. Circuit, as did Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg.

Nominations to this circuit rarely fly under the radar, and its nominees, more than most others, need the right insiders and the most vigilant supporters to monitor – and counter — opposition. This is when constant phone calls and letters count, to keep the pressure on key senators.

And then there’s the ghosts of nominations past. As dueling senators have mentioned as they’ve staked out ground on Halligan, in the late 1990s Republicans stalled on two D.C. Circuit nominees of President Clinton, Allen Snyder and Elena Kagan. In the early 2000s, Senate Democrats repeatedly filibustered Miguel Estrada, a nominee of George W. Bush. (Kagan, of course, got the better of the deal as she ended up confirmed to the Supreme Court, ten years after her D.C. Circuit nomination languished.)

In the past two decades, slightly more GOP nominees have made it onto the D.C. Circuit than Democratic nominees. During his two terms, President George W. Bush successfully named John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh. Before that, during his two terms, Bill Clinton appointed Judith Rogers, David Tatel and Merrick Garland.

Caitlin Halligan is President Obama’s first nominee to D.C. Circuit. If the Senate does not vote on her nomination soon, it’s hard to see how – in these politically polarized times — she or anyone else selected this term would clear the Senate before the 2012 presidential election.

In tracing back the politics of Sonia Sotomayor’s first nomination to the federal bench, I’ve become interested in John Carro, who was a judge in New York City and recommended for a federal district-court seat that Sotomayor eventually landed. I knew the outlines of Carro’s compelling life story, but in new research over the weekend I learned more and was reminded of how disparate strands of history can intertwine.

In 1988, Senator Daniel Patrick Moynihan, D-N.Y., recommended Carro for a U.S. trial judgeship in New York’s southern district. Neither President Ronald Reagan nor George H.W. Bush took the Democratic senator’s recommendation, and Carro asked Moynihan to withdraw his name in January 1991. A few months later, Moynihan suggested Sonia Sotomayor (27 years younger than Carro and without his liberal record), launching a judicial career that led to her 2009 Supreme Court appointment.

Carro, born in Puerto Rico, moved to New York with his family when he was about 10. He went to Fordham, then Brooklyn Law School, and became a vigorous advocate for Latino legal rights. He worked for New York Mayor Robert Wagner in the early 1960s, and was appointed to the New York Criminal Court in 1969. A decade later, Gov. Hugh Carey named him to the Appellate Division, which is where he was when Moynihan tried to get Carro a seat on the federal bench. (Carro retired in 1994.) In researching his background, I discovered a transcript of an interview in which Carro recalled the tough East Harlem neighborhood of his youth and how he had to run home from school each day to avoid getting beat up or having his books, pencils or money stolen.

Here’s the connection that surprised me: Carro’s off-handed reference to his boyhood came as he was being deposed in 1964 about his time as a probation officer, when he met a boy named Lee Harvey Oswald. That was in 1953, and Oswald, then about 13, was a truant. Carro wrote up a history of the family and the boy’s problems. As a window on Oswald — and Carro — the transcript (link) is fascinating. Here are two small pieces that reveal a different chapter of American history, one having nothing to do with judicial nominations but ever so captivating:

First, Carro recalls Oswald as a boy compared to the youths he typically saw: “Most of the boys that I had on probation were Puerto Rican or Negro, and they were New York type of youngsters who spoke in the same slang, who came from the Bronx whom I knew how to relate to because I knew the areas where they came from. … [T]his boy was different … . I was a Catholic probation officer and this boy was a Lutheran, which was strange to begin with, because you normally carry youth of your own background. And secondly that he did dress in a western style with the levis, and he spoke with this southwestern accent which made him different from the average boy that I had on probation. … [T]here was no indication that this boy had any Marxist leanings or that he had any tendencies at that age that I was able to view that would lead him into future difficulty.”

Carro also explains how he came to realize that the boy he once knew was the man who shot President Kennedy on November 22, 1963: “I believe it was after the burial or just about that time, while I was watching the papers, on the day that he actually was killed by [Jack] Ruby, that I saw some pictures of the mother, and I started reading about the New York situation, that it suddenly tied in, because, you know, something happening in Texas … you hardly associate with a youngster that you had 10 years prior… . A friend of mine called me up, a social worker, to tell me, ‘Carro, you know who that case is?’ And he said, ‘That was the case you handled. Don’t you remember?’ And then we started discussing the case, and I remembered then, and what happened then is I felt, you know, it was a kind of a numb feeling …”

This weekend when I was clearing out book shelves, trying to make room for new volumes, I discovered a little book about Arizona’s distinctive state Capitol and copper dome. I had bought it years ago when I was researching Sandra Day O’Connor. I believed her tenure as a state senator in the 1970s was critical to understanding the justice who so skillfully counted votes among the brethren, and I had gathered all I could find about Arizona state politics and the legislature during her time there. I somehow found even the architecture of the Capitol intriguing.

I thought I had cleared out all the Arizona works as I later acquired books on all things Italian for my Justice Scalia biography. This weekend, I discovered a few of those books still on my shelves, too. One that I knew I had resisted packing up was Luigi Barzini’s consummate work on Italians, whose sweep included the importance of spectacle and power of the family. Barzini offered many insights toward my subject and when I came across this line — “The vigorous passions of a turbulent and restless people are always ready to flare up unexpectedly like hot coals under the ashes” – it was only a question of where in American Original I’d use it.

Now, I am in the middle of researching a book using Justice Sonia Sotomayor’s life as the scaffolding of a broader story about Latinos and the law. This will not be a biography as the O’Connor and Scalia works were, so it is even more important for me to understand the parallels of her life and those of a people. My shelves are filling with volumes about Puerto Rican history, Latinos and the law, and nomination politics. Among my favorites so far, however, have been works of Esmeralda Santiago, a beautiful writer who was born in Puerto Rico and came here when she was thirteen.

I had not read Santiago before and I find her memoirs deeply moving, independent of anything related to my research. Santiago’s life story mirrors some of Sotomayor’s, including methods for catching up in school. Toward the end of When I Was Puerto Rican, Santiago reveals that as she tried to get used to life in Brooklyn, “Every day after school I went to the library and took out as many children’s books as I was allowed. I figured that if American children learned English through books, so could I, even if I was starting later. I studied the bright illustrations and learned the words for the unfamiliar objects of our new life in the United States: A is for Apple, B for Bear, C for Cabbage.”

Sonia Sotomayor was born in New York, yet as a child of Spanish-speaking parents, she similarly struggled with English. When Sotomayor hit a wall on language and literature at Princeton, she did what Santiago did. She turned to grammar books, vocabulary builders and the classics that other students had read when they were young. A grade-school chum of Sotomayor, also of Puerto Rican heritage, told me recently that the same was true for him. He put in the extra time in college to compensate and catch up. He said there really was no choice: you sought out what you needed or you wouldn’t move ahead.

Some of that holds true for an author: You read up. You learn all sorts of new things. And the discoveries keep you going.

Sotomayor’s New Pattern in Dissenting Opinions

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When President Obama chose Sonia Sotomayor in 2009 to succeed retiring Justice David Souter, some Court observers thought there was one area of the law in which she might actually be more conservative than Souter: defendants’ rights. Sotomayor is a former prosecutor who, as a lower court judge, voted regularly against prisoners’ challenges to their cases. But in her first term on the Supreme Court, she showed no signs of joining conservatives against defendants and in fact was notable among liberals in support of criminal rights, for example, in her dissenting opinion in Berghuis v. Thompkins.

And now as she separates herself from her colleagues to dissent publicly when some appeals are denied, she has focused on prisoners’ rights. A story I wrote for today’s paper looks at recent cases in which she dissented or voiced concerns when the majority spurned an appeal. Most of these were cases in which she believed the defendant deserved a break.

Jonathan Kirshbaum, who represents indigent defendants at a New York appellate litigation center and who was wary of Sotomayor’s appointment, told me he has been struck by her recent votes siding with prisoners and how much feeling she expresses in these opinions. Of her recent dissents when the majority rejects an appeal, he said, “They give the criminal defendant’s perspective on these issues.”

We’re always looking for signs of a new justice’s approach to the law and how she might affect the Court. Sotomayor’s dissents from denials of certiorari offer a pattern that helps define her. President Obama’s more recent appointee, Elena Kagan, has yet to write any opinions. But she has already shown herself to be a forceful presence on the bench during oral arguments. Here is my early take on Kagan, who – like Sotomayor — appears destined to easily find her voice among the nine and on the law.

Closing the Book on Antonin Scalia

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As the New York Times Book Review noted in a Sunday column, American Original is now out in paperback, and I’m moving on. I’m sure Justice Scalia will continue to give me plenty of material when the new term begins on the first Monday in October. Justice Sandra Day O’Connor, my first subject, has proved newsworthy even in retirement.

But I’m mostly turning now to my next project, centered on Justice Sonia Sotomayor. This effort will not be through the lens of standard judicial biography, however, as the first two books were. Sotomayor is in only her second year on the Court, of course, and my earlier subjects had each served more than 20 years when I began my research.

Rather, I will be examining the trajectory of Sotomayor’s life (beginning in 1954) against the progress of Latinos in the law and the political currents that led to her appointment as the first Hispanic justice. I am looking at the broader landscape of minority appointments and the Hispanics who came before her who might have had a shot at making history but never got an interview with the president.

This project will take years, as the others did. When I finished the O’Connor book and moved onto Scalia, I used to joke that I was trading Palo Alto and Phoenix (her stamping ground) for places like Trenton and Queens (his). Now, alas, it’s the Bronx.

Justices and Their Personal Trials

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When a Denver student asked Justice Sonia Sotomayor on Thursday about the “biggest sacrifice” Sotomayor had made to move ahead professionally, the justice paused and told her audience in the university auditorium (and on C-SPAN) she was about to say something “more personal than you may want” to hear. I thought about how – as was  widely reported during her 2009 nomination — Sotomayor had divorced young, then broken off an engagement in her 40s, and remained single now in her 50s. She had spoken bluntly early in her career about the toll work took on her romantic life, telling one interviewer: “A man who calls you three times and all three times you answer, ‘I’ve got to work late’ … after the third time, he begins thinking ‘Gee, maybe she’s not interested.’”

But last week the justice answered a question about personal sacrifice by talking about her elderly mother, Celina, who was hospitalized recently. The sacrifice, Sotomayor said was in “taking this job when I know that I am on the tail end of my mother’s life.” Sotomayor said she regretted work demands did not let her be with her mother right now.

Celina plainly has been the single most influential person in the justice’s life. When President Obama nominated Sotomayor to the Court in May 2009, she declared of the woman who had worked six days a week as a nurse to support the family, “I have often said that I am all I am because of her, and that I am only half the woman she is.” (Sotomayor’s father died when she was nine years old.)

Justices, typically appointed in their 50s, often come into office with elderly or deceased parents. Elena Kagan’s parents died even before her confirmation to solicitor general in March 2009. Justice Antonin Scalia’s parents died several months before he was nominated to the Court in June 1986. (They passed away within days of each other during the previous Christmas season.) “It took some of the sweetness out of it,” Scalia told me about his parents’ missing his nomination.

When the late Chief Justice William Rehnquist lost his mother (in 1988, when she was in her 90s), he answered condolences from colleagues by observing that no matter how old one is, a parent’s death takes a heavy toll. Rehnquist’s mother was the driver in that family. Sotomayor’s mother represents even more.

With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.

The president needs to go young, for his own legacy at the Court. No, age doesn’t matter, and isn’t 60 the new 50 anyway? What about religion? With the one Protestant (John Paul Stevens) retiring, the president can’t appoint another Catholic or Jewish justice, can he? But who these days would object to a nominee based on her (or his) religion? What about a nominee beyond the “judicial monastery,” as Senate Judiciary Committee Chairman Patrick Leahy likes to say? Yet what about all the baggage a governor or other politician might bring to the confirmation hearings, not to mention the problem with getting up to speed on the Court. And on that score, shouldn’t President Obama choose someone who can win over centrist conservative Anthony Kennedy? Or, should he focus on finding a “Scalia of the Left”?

Such are some of the many scenarios that preoccupy journalists these days. Just as I am at the point that all theories spawn counter-theories and I have over-thought the whole thing, I am reminded that President Obama likely knows more about constitutional law than any president and is coming at this in his own distinct way. Obama is one of only two U.S. presidents who graduated from Harvard Law School. Rutherford B. Hayes was the first. Obama was elected to the top editor position (president) of the Harvard Law Review, the first African American to attain such an honor, and he went on to teach constitutional law at the University of Chicago.

“Overall, Obama has, and had then, a problem-solving orientation,” Harvard Law Professor Laurence Tribe, a mentor to Obama in Cambridge, told David Remnick for his new book The Bridge. “He seems not to be powerfully driven by an a-priori framework, so what emerges is quite pragmatic and even tentative. It’s hard to describe what his presuppositions are, other than that the country stands for ideals of fairness, decency, mutual concern, and the frame of reference that is established by our founding and the critical turning points of the Civil War and the New Deal, as a frame to identify who we are. When Earl Warren was Chief Justice, he would ask, after an oral argument, ‘But is it fair?’ For Barack, the characteristic question is, ‘Is that what we aspire to be as a country? Is that who we are?’”

Last year, President Obama made the choice of Sonia Sotomayor essentially on his own. He weighed advice from staff, interviewed finalists, made a preliminary choice, and then spent a weekend making sure he was satisfied. No doubt he’ll follow a similar pattern this time, whatever narrative most appeals to him and whoever best meets the question of “who we are.”

Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.

Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.

With his usual punch, he reminded his colleagues this week of that view, in the case of   Milavetz, Gallop & Milavetz v. United States, regarding a 2005 bankruptcy law. Scalia joined the majority in a two-part decision that said the law barring certain professionals from advising clients “to incur more debt in contemplation of” filing for bankruptcy applies to attorneys, and that the law can be narrowly construed to avoid a First Amendment violation. But Scalia took exception to footnote 3 of the decision Justice Sonia Sotomayor wrote for the Court.

Sotomayor opened footnote 3 by declaring that, “Although reliance on legislative history is unnecessary in light of the statute’s unambiguous language, we note the support that record provides for the government’s reading.”

In his concurring opinion, Scalia countered, “The Court acknowledges that nothing can be gained by this superfluous citation … But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear. The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.”

Beginning in the mid-1980s, after he became an appeals court judge yet remained on the academic lecture circuit, Scalia regularly spoke out against legislative history. In one stock speech (a signed copy of which is in the University of Chicago law library), he contended, “The use of legislative history to give meaning to a statute is a relatively new development in our common-law system.”

And in a metaphor tied to the maturation of certain creatures that somehow seems apt as we today celebrate his 74th year, Scalia continued, “Some creatures that seem pleasant and tractable in their infancy – tiger cubs, for example – are better abandoned when they reach their full natural development. Now that legislative history has reached its adulthood, perhaps it is time to reconsider whether we want to live with it.”

Many happy returns, Justice Scalia.

When Clarence Thomas Does Speak

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Justice Clarence Thomas has not spoken from the bench in nearly four years, and his silence regularly leads to questions from the public. When I’m asked, as happened twice last week, I usually repeat some of the reasons Thomas has given, including (as he told C-SPAN in 2009) he would rather let the lawyers talk on and explain their cases. Then I add that in interviews I’ve had with Thomas he has been unusually candid in his assessments of colleagues and open about his views. He provided some of the more vivid descriptions of Justice Scalia and Justice O’Connor, and he offered impressions of the confirmation process for Sonia Sotomayor last summer.

As we approach another anniversary of Justice Thomas’s silence on the bench (in February), here are two comments that I thought revealed as much about Thomas as the justice we were discussing:

When I spoke to him about the then-pending nomination of  Judge Sotomayor, I noted that she had been subjected to some inaccurate and rancid stereotyping. Thomas experienced some stereotyping, too, when he was nominated in 1991. I asked whether that caused him to have some sympathy for Sotomayor. In response, Justice Thomas focused on the fact that many of her liberal supporters had been his critics. “I don’t know her,” he said. “I had dinner with her once. She was nice to me. … I’ve always found it fascinating that people get upset with me because they think that because I’m black I have to have a particular point of view. But the people who have presumed that about me cannot now object if the same thing happens to Sotomayor. You see what I’m saying? A bigot cannot yell too loudly about bigotry.”

When I asked Thomas years earlier about Justice O’Connor, he openly recalled their differences in his first term on the Court, particularly in Wright v. West, the 1992 case regarding procedures for prisoners seeking a federal hearing. He wanted to go much further than O’Connor in curtailing the writ of habeas corpus. O’Connor made clear, behind the scenes and then in a published opinion, that she believed Thomas was misconstruing precedent. Thomas told me: “At first I thought, ‘Whoa, she’s a tough cookie.’ … But they had been working on these [habeas corpus] problems for years and I come marching in like this.” Thomas pumped his arms aggressively for effect. “I was the new kid on the block. I was brash…. I just took it like the rookie football player who gets clobbered by the linebacker: ‘Welcome to the NFL.’”

Makes me wonder what he was thinking during last week’s oral arguments in American Needle v. National Football League.

A First for New Justice Sotomayor

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Justice Sonia Sotomayor, who joined the Court last August, issued her first written opinion today, in the case of Mohawk Industries v. Carpenter. (Read the decision, which also was the first of the Court’s current term.) The case, involving when discovery orders related to the attorney-client privilege may be appealed, had not been closely followed by reporters. But the decision caused a small stir in the press room today, simply because it was the new justice’s first and because it was not fully signed by all eight of her colleagues. Justice Clarence Thomas concurred in part and filed a separate statement disagreeing with some of Sotomayor’s reasoning.

Justice Thomas’s move prompted some old hands in the Supreme Court press corps to believe a tradition of collegiality had been broken. By longstanding practice, the chief justice usually assigns the new justice a case that all nine agree on and that can be written up without much difficulty. It’s a courtesy that helps ease a new justice into ways of the marble cloister.

But this tradition has been broken before.

When I was doing research for my biography of Sandra Day O’Connor, Justice Ruth Bader Ginsburg recalled what happened to her shortly after she had taken her seat in 1993. Chief Justice William Rehnquist assigned Ginsburg, as her first opinion, a case involving the Employee Retirement Income Security Act, a complex federal law covering worker benefits. The Court was split 6-3 in the case, John Hancock Mutual Life Insurance v. Harris Trust & Savings Bank.

Ginsburg went to Justice O’Connor with a complaint about the break in usual practice. “Sandra, how can he do this to me?” Ginsburg said to O’Connor.

“Ruth, you just do it, and get your opinion in circulation before he makes the next set of assignments,” O’Connor told her.

Of O’Connor’s no-nonsense, no-pity response, Ginsburg told me, “That is so typical Sandra.”

Today, it’s difficult to imagine that Sotomayor is truly perturbed that Justice Thomas broke off from part of her opinion for the majority. What likely matters to her is that history will record that the very first signed opinion of the 2009-2010 term bears this notation: “Sotomayor, J., delivered the opinion of the Court.”