Sotomayor's powers of persuasion.

The law, lawyers, and the court.
May 28 2009 5:03 PM

Sotomayor Sides With the Cops

And persuades a Republican judge to go along with her.

(Continued from Page 1)

The jury believed Jocks and awarded him more than $600,000 in damages. Tavernier and the detective appealed. The judges on the panel for the U.S. Court of Appeals for the 2nd Circuit were Sotomayor; Pierre Leval, a Clinton appointee; and John Walker Jr., appointed by President George Herbert Walker Bush, who is his cousin (Walker and Walker, same family). From the beginning, Sotomayor backed Tavernier. She saw his arrest of Jocks as reasonable. Leval and Walker were on the other side.

Walker wrote an opinion affirming the jury verdict, 2-1. But the drafting took a long time, and when a draft was finally circulated, Sotomayor responded to it by arguing that the grounds for a reasonable arrest are broad. As an off-duty cop who'd been hit in the face with a phone after an altercation, she argued, Tavernier was justified in making the arrest as a matter of law. That meant throwing out the jury verdict. Walker could not get her to change her mind. Instead, Leval decided he was persuaded by Sotomayor's argument about how broad the grounds for making an arrest can be and switched sides. Finally, Walker gave up and switched, too. His written opinion throws one bone to Jocks by leaving open the possibility of a new trial based on one narrow argument (that he acted in self-defense when he threw the phone). But throwing out the $600,000-plus jury award was a huge blow to the plaintiff. The case was retried in 2007, and Jocks lost, based on the more constraining jury instructions that the trial judge gave because of the 2nd Circuit ruling. *

Advertisement

Why did Sotomayor see the case the way she did? Maybe because she is a former prosecutor: She went straight from Yale Law School to the Manhattan district attorney's office in 1979 and tried dozens of criminal cases there over five years. Or maybe Sotomayor has other reasons; it's hard to know. And in the end, the other two judges involved agreed she was right on the law. But what's striking, of course, is that she persuaded them to undo a verdict in a case that a jury saw as rife with police abuse of power. "You read this unanimous opinion, and it would seem to be the Republican judge who is driving this decision that she just signed on to. When in fact it was exactly the opposite," one observer said.

I'm consistently hearing that Sotomayor is forceful and assertive and plays well with her colleagues. After oral argument in a case, she is quick to fax detailed memos, citing details from the record—not every judge looks at this early on—or from her clerks' legal research. She picks up the phone to call other judges, an unusually direct method in the 2nd Circuit that reportedly works well for her. She directs her clerks to respond to the work of other judges before tending to the work of her own chambers, also not always the norm and an appreciated display of courtesy. She has good relationships with Republican appointees on the court in addition to Judge Walker: When Obama tapped her this week, Judge Richard Wesley, a George W. Bush appointee, called her "an outstanding colleague with a keen legal mind." Jocks v. Tavernier illustrates what a skilled negotioator she is. And it shows, too, that sometimes judges don't deliver what we expect. For the worse.

This article also appears on Double X.

Correction, June 2, 2009: The original sentence stated that the case was not retried. (Return to the corrected sentence.)

TODAY IN SLATE

Medical Examiner

Here’s Where We Stand With Ebola

Even experienced international disaster responders are shocked at how bad it’s gotten.

Why Are Lighter-Skinned Latinos and Asians More Likely to Vote Republican?

A Woman Who Escaped the Extreme Babymaking Christian Fundamentalism of Quiverfull

The XX Factor
Sept. 22 2014 12:29 PM A Woman Who Escaped the Extreme Babymaking Christian Fundamentalism of Quiverfull

Subprime Loans Are Back

And believe it or not, that’s a good thing.

It Is Very Stupid to Compare Hope Solo to Ray Rice

Building a Better Workplace

In Defense of HR

Startups and small businesses shouldn’t skip over a human resources department.

How Ted Cruz and Scott Brown Misunderstand What It Means to Be an American Citizen

Divestment Is Fine but Mostly Symbolic. There’s a Better Way for Universities to Fight Climate Change.

  News & Politics
Politics
Sept. 22 2014 6:30 PM What Does It Mean to Be an American? Ted Cruz and Scott Brown think it’s about ideology. It’s really about culture.
  Business
Moneybox
Sept. 22 2014 5:38 PM Apple Won't Shut Down Beats Music After All (But Will Probably Rename It)
  Life
Outward
Sept. 22 2014 4:45 PM Why Can’t the Census Count Gay Couples Accurately?
  Double X
The XX Factor
Sept. 22 2014 7:43 PM Emma Watson Threatened With Nude Photo Leak for Speaking Out About Women's Equality
  Slate Plus
Slate Plus
Sept. 22 2014 1:52 PM Tell Us What You Think About Slate Plus Help us improve our new membership program.
  Arts
Brow Beat
Sept. 22 2014 9:17 PM Trent Reznor’s Gone Girl Soundtrack Sounds Like an Eerie, Innovative Success
  Technology
Future Tense
Sept. 22 2014 6:27 PM Should We All Be Learning How to Type in Virtual Reality?
  Health & Science
Medical Examiner
Sept. 22 2014 4:34 PM Here’s Where We Stand With Ebola Even experienced international disaster responders are shocked at how bad it’s gotten.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.