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. *

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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.)

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