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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