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.

What power does Sonia Sotomayor have to persuade other judges—especially conservatives—of her views? It's a question that will determine her future effectiveness at the Supreme Court, since winning there is all about counting to five votes, which for the liberals and moderate justices in the foreseeable future makes it all about wooing Justice Anthony Kennedy to be their fifth. Sotomayor will leave a far deeper imprint on the court if she can convince Kennedy or another conservative that she's right in cases she cares about. So what does her record suggest about how good she is at the fine art of persuasion?

Sotomayor has been a good emissary for herself, based on the evidence I've gathered from her clerks and other chambers about how she has worked with Republican appointees on her court. What's remarkable isn't just her persuasive abilities, though. It's where those powers sometimes take her. In one case, Sotomayor talked a Republican-appointed judge around to a result that is all about taking the police at their word—even though the disturbing, even wrenching circumstances surrounding the arrest at the heart of the case might point exactly in the opposite direction. Liberals, be careful what you wish for.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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The case is Jocks v. Tavernier, argued in 2001 and decided in 2003. That long gap is the only external clue that the judges who decided Jocks fractured in any way. But they did. (A note about my reporting on this: Clerks and lawyers weren't willing to talk on the record, because of the veil of confidentiality that's supposed to shroud judges' deliberations. Anonymous sniping has already been a huge problem in the reporting about Sotomayor, and I wish I could get around it. But I can't. So I'm doing my best to talk to people from a variety of professional vantage points and to test some of their perceptions against others'. That along with the written opinion is the basis for this story.)

Jocks v. Tavernier starts with the breakdown of a tractor-trailer on the Long Island Expressway in 1994. Thomas Jocks, a truck driver, tried to pull his truck off the highway when his engine failed. He made it onto the shoulder, but about 4 feet of the trailer were jutting out into the right-hand lane. Jocks put up flares behind the truck, as state law requires. But he was worried about causing an accident. Unable to flag down another car, he ran three-quarters of a mile to a gas station, which had an outdoor pay phone (1990s = the pre-cell-phone dark age). Augusto Tavernier was talking on the phone, actually from inside his car, because the phone had a cord designed to be used that way.

Jocks gave the following account of what happened next: He ran up and told Tavernier there was an emergency because his truck was jutting out onto the expressway. Tavernier told him to find another phone. Jocks repeated the emergency part of his story. Tavernier swore at him. Jocks knocked on his windshield and kept urging him to give him the phone. Finally, Jocks went into the phone stand and hung up on Tavernier's call. At that point, Jocks said, Tavernier threw the receiver at him, tried to get out of his car, couldn't because the phone stand was blocking his door, and drove forward. Jocks dialed 911. Tavernier charged him, yelling. Jocks yelled back. Tavernier said, "Why don't I blow your fucking brains out?" and drew his gun. He pressed the gun into the back of Jocks' head, and said, "Freeze, police"; and then an off-duty Nassau County police officer arrived, got the situation under control, and arrested Jocks.

Tavernier, too, proved to be an off-duty cop. After his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.

Jocks sued Tavernier, and also the detective who booked him, for false arrest and malicious prosecution. At trial, Tavernier's story was that when Jocks asked for the phone, he didn't say anything about an emergency. He just hung up on Tavernier and started making a call, and then when Tavernier tried to hang up on him, Jocks swung the phone and hit him in the face. At that point, Tavernier said, he drew his gun and arrested Jocks.

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. *

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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