The Meaning of Empathy: Biden Tells Police Organization that Sotomayor “Gets It” and “Has Your Back”

200px-Sonia_Sotomayor225px-joe_biden_official_photo_portrait_2-cropped1Many liberal are disappointed with the appointment of Sonya Sotomayor who was often suggested as a nominee for George W. Bush and has voted against free speech, student rights, and other cases with important liberal causes. As I have discussed in my review of her cases and criticism of past commentary of this nomination, liberals will lose ground on the Court if Sotomayor votes as a justice the way she voted as a judge. One of those areas is police abuse where Sotomayor has been criticized for siding with police in cases with strong evidence of abuse. Now, Vice President Joe Biden has drawn attention to the later cases by assuring a police organization that Sotomayor is pro-police and will watch their back when cases come before the Supreme Court.

On Monday, Biden told a law enforcement organization that Sotomayor “has your back” and added “There’s a part of her record that seems to be, up to now, been flying under the radar a bit. And that’s her tough stance on criminals and her unyielding commitment to finding justice for the victims of crime . . She gets it . . . So you all are on the front lines. But as you do your job, know that Judge Sotomayor has your back as well,” Biden said. “And throughout this nomination process, I know you’ll have her back.”

Sotomayor’s record certainly supports that statement and worries civil libertarians. One such case is
The case is
Jocks v. Tavernier where Sotomayor convinced a Republican nominee to switch his vote and overturn a jury decision against an official for abuse. The dispute began with breakdown of a tractor-trailer along an expressway in Long Island in 1994. Thomas Jocks was concerned because his truck was sticking at least 4 feet into one of the lane and he could not move it completely on to the shoulder. He put out flares but was concerned about an accident so he ran almost a mile where he met Augusto Tavernier, an off-duty officer who was talking on a phone in his car with the window up (this was one of the public phone with a long cord to allow drivers to speak from within their cars). He testified (and a jury believed) that he told Tavernier that he had an emergency and needed the phone to avoid a crash. Tavernier, he said, told him to get lost and refused to get off the phone. When Jocks tried to explain again to him, Tavernier reportedly swore at him and continued to talk. Jocks finally hung up the telephone. He said taht Tavernier charged at him and drew his gun and asked “Why don’t I blow your fucking brains out?” and drew his gun. Jocks testified that he pressed the gun to his head and said “Freeze, police.” He then found out that he was an off-duty Nassau County police officer.

While he would spend $20,000 on legal fees and lose his job, he was finally given a trial before a jury which believed his account. It found false arrest and malicious prosecution and awarded him $600,000 in damages. It was an important victory for civil libertarians and Tavernier thought the he had found justice until he met Sonia Sotomayor. Bush appointee Judge John Walker Jr. viewed this as a simple case. After all, such jury decisions are given great deference. When he wrote the opinion supporting the victim, Sotomayor pressed him to flip the result and the panel ultimately ruled against Jocks.

Jocks was forced to retry the case and, due to jury instructions based on the opinion, he lost.

Biden has succeeded in reminding liberals that Sotomayor is not particularly liberal in such areas and could, if she continues her 18 year voting pattern, flip some cases in favor of the conservative wing on the Court. She is certainly more conservative than Souter. When I last covered a nomination for Alito, Sotomayor was one of the most cited potential nominees for the Republican president.

Of course, a nominee is not supposed to “watch the back” of any class of litigants. Indeed, the entire empathy pitch raised concerns because it suggested that she might rule differently due to empathy than she would simply on the case law. This is particularly ironic because my review of her cases shows no real bias. However, in areas like free speech, police abuse, and student rights, she has a fairly conservative viewpoint and has voted against what I viewed as strong claims by the plaintiffs.

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15 thoughts on “The Meaning of Empathy: Biden Tells Police Organization that Sotomayor “Gets It” and “Has Your Back””

  1. You never know how they are going to vote/decide until they have the safety of the office. I am uncomfortable with this selection as much as I was when Bork and Thomas were the nominees. Don’t know why, maybe it because its a lifetime appointment.

  2. yitzak
    1, June 10, 2009 at 5:52 pm
    Biden is truly the most ignorant VP this nation has ever had.

    You obviously were in a coma between 2000 and 2008. I suggest you raise your standards.

  3. PHILADELPHIA, June 10, 2009 ( – Operation Rescue said today that it is appalled to learn that Philadelphia Women’s Center gave away free abortions on Tuesday as a means of “honoring” slain late-term abortionist George Tiller. “There seems to be no comprehension of the value of human life with these people. Killing babies for free to honor someone who was murdered can only be described as sick,” said Operation Rescue President Troy Newman. The abortion facility told the media that an unspecified number of abortions were done free of charge in memory of Dr. Tiller.

    can we be truthful here? Tiller did about 60,000 abortions at an estimated $2,000 each. That is $120,000,000! Tiller died a very rich man aborting babies that were capable of living on their outside the womb…that is sick.

  4. Biden is truly the most ignorant VP this nation has ever had. God help us if something happens to Obama because then we have Vice President No Brain running things.

  5. Regarding FIOA, here is an excerpt from Greenwald:

    “If Congressional Democrats are willing to vest the President with the unilateral, unreviewable power to override FOIA — which, as Chairwoman Slaughter says, is one of the crown legislative jewels for the Democratic Party, “as sacred as Social Security and Medicare” — what aren’t they willing to do for him?”

    I strongly disliked President Johnson but he deserves great credit for signing the FOIA into law. The Freedom of Information Act is the most important tool we citizens have to combat governmental secrecy and the potential tyranny that results from a non-transparent, closed government.

  6. Oops, make that “1 C.E.” Points off here for bad proofreading.

  7. I wonder if Biden also promised that “thin blue line” bread, circuses, or both?


    “… Already long ago, from when we sold our vote to no man, the People have abdicated our duties; for the People who once upon a time handed out military command, high civil office, legions — everything, now restrains itself and anxiously hopes for just two things: bread and circuses.”

    –Juvenal (Book IV, Satire X, 1 B.C.)

  8. Authority unquestioned is authority unchecked. Authority unchecked is tyranny.

  9. This breaking story,The shooting at the “HOLOCAUST MUSEUM” touches home to a degree.
    My grandsons school went on a school trip there just last week.

    He was going over the brochuers that he got while there.

    Now will the Homeland Security Office not backtrack on the assesment that they had of the radical right and what is possible from them?

    Dr. Tiller,Now this.

  10. Jill wrote, in part:

    “I think her judicial philosophy is to defer to govt. authority.”

    That is a good assessment and the trait that concerns me the most regarding Ms. Sotomayor. As a former civil servant I understand and appreciate judicial deference granted those in government, although I was never in the situation to have needed deference granted in anything with which I was involved because I performed as close to ‘by the book’ as possible.

    However, since my retirement, I have learned—in abundance—that deference allows those in government to abuse the rule of law and all manner of rules and regulations knowing that deference is weighted heavily in the government’s favor; in other words, judicial deference has the public servants’ backs.

    The real value of a judge or justice derives from looking closely at governmental actions to determine if public servants acted arbitrarily and capriciously in their decision-making and then ruling against the government if such actions occurred.

    A justice must be unbiased enough to rule in favor of citizens if they are harmed by the arbitrariness and capriciousness of an overbearing, authoritarian bureaucracy and especially regarding Constitutional and Bill of Rights abuses by the government over its citizenry.

  11. I am reading a book called: Democracy Inc. by Sheldon Wolin. He describes something he calls, “inverted totalitarianism”.

    He writes, “Inverted totalitarianism has learned how to exploit what appers to be formidable policitcal and legal constraints, using them in ways that defeat their original purpose but without dismantling….them.”

    Right now I think this is exactly how Congress and the President proceed. They were set up as separate branches so that “ambition could check ambition”. While we retain the form of three separate and equal branches of govt. we do not retain that reality. The truth is that most of Congress simply colludes with the executive branch. The courts have been the one check on this collusion and I believe that check will fall soon enough. We will retain all the forms of a democracy without being one.

    One reason I think this is, Obama has stated his intention, to “get the law right”. Indefinite detention, the gutting of FOIA and FISA– he plans to do these things under the process of law. Sotomayor is likely to go along with these and other expansions of executive power and anti-Constitutional “laws”. I don’t think she is a bad person. I think her judicial philosophy is to defer to govt. authority. I believe she was chosen as the nominee because this is her underlying philosophy. She has said the court should not make policy and I agree. However, when the president and congress are making unconstitutional policy, the court needs to call it for what it is. That’s not making policy, that’s saying the policy is unconsitutional. In my reading of her opinions I do not believe she will be willing to call a policy unconstitutional as long as it has the veneer of “correct” process to it. Once the SC is no longer functioning to correct executive overreach and congressional cowardice, whose actions together will gut our Constitution, we will have inverted totalitarianism in this nation.

  12. In the same breath he says she is absolutely faithful to the constitution, but she allowed evidence from a warrant less search of a vehicle that another court had thrown out.

    What constitution is she faithful to again?

  13. New revelations are why rushing the vetting process must never occur.

    While I think Ms. Sotomayor is still a good nominee, Biden’s comments and the ‘Jocks v. Tavernier’ case results are troubling, especially if we keep the Bush et al. era abuses in mind.

    It is good to have a sometimes loose-talking “spy” like Biden as VP who can inadvertently ‘signal’ potential problems or pending ‘issues’ within the Obama Administration and its planning strategies.

    Full Disclosure: I like VP Joe Biden

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