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I mean, really, Breyer? Really? "Stick things" in your underwear? Boys are weird!
How the hell would that work?
We had to have a women and a Latino or Latina was a nice touch. Now if someone can just prove she is also a divorced lesbian we would have the tri-fecta of liberal picks.
But this isn't what Obama is talking about. He isn't suggesting that we simply ensure a balance of pre-cognitive dispositions on the Court. He says that "the rules may need to be different for some people." (See http://notesfrombabel.blogspot.com/2009/05/obam... http://www.victorhanson.com/articles/lugo110408....) I'm not sure where to draw the line between the kind of empathy you're talking about, and the kind Obama is talking about, but seems hard to deny it's there.
I admire your thoughtful analysis, but there seems to be an enormous disconnect between your concept of vague philosophical "justice" and the actual workings and purpose of our federal judiciary as intended by the Framers.
Like you, I don't agree with the "judicial activism" code words to denounce a judicial style or philosophy. Unlike you, however, I can certainly define what is wrong with "empathy" in the judicial arena. For instance, I think judicial so-called "activism" is perfectly acceptable in broadening the scope of the privileges and immunities clause, or in applying substantive due process to economic liberties. "Empathy" or "heightened sensitivity," on the other hand - is not only wrong as an interpretive exercise, it undermines entire basis of our legal system (at least, as it was intended). Indeed, "putting oneself in the position of the parties" is most certainly NOT relevant to the determination of specific cases. Justicia's blindfold is not just a cliche, it is the backbone of our legal system. Your post ignores this crucial point.
Justices empathetic to certain gender issues, race issues, or even political issues may occasionally come up with a proper constitutional interpretation of a particular case, but this is a classic "broken clock" analogy. A "homogeneous composition" on the Court should matter to us no more than a "homogeneous composition" should matter in a firehouse, a group of umpires, or even in a collection of Cato policy wonks. Just as different umpires may have differing fundamental "strike zones," Justices can approach their interpretation of the Constitution from different prisms. But no firefighter would change the direction of his hose based on his affinity for a particular style of architecture, and no umpire would (well...should) change his strike zone based on his knowledge of, or empathy for, a particular batter.
The Court would only "improve" with the addition of more women and minorities if those specific women and minorities happened to be MORE impartial and LESS empathetic than other potential nominees. To suggest anything different argues for a very dangerous precedent. Empathy - as you describe it - should be solely in the province of "do-gooder" legislators, and to a lesser extent, juries. It should not be on the bench.
I never said - or even implied - that adding women or minorities would make the Court "worse." I only argue that empathy, or diversity for diversity's sake, has no place in a system of blind justice. If a minority or a woman is a better, more well-reasoned, and more impartial justice than another candidate, then he or she should by all means be appointed over a more "homogenous" choice. But the Court is not a "deliberative body" in the sense that you - and Will - seem to think it is. Juries are deliberative bodies...Congress is a deliberative body...a Judge (or a panel of Judges) is just a referee. Although its true that they "deliberate" in some sense, it is not the sort of deliberation that would have anything added to it through the arbitrary diversity both you and Obama seem to recommend. The sole function and purpose of a judge is to apply the law (which is enacted by a deliberative body - congress) to a given set of facts -just as a referees job is to apply the rules of a game to its particular players and plays. A judge should not insert his or her empathetic views into this case-by-case analysis. This is the very purpose behind the equal protection clauses of the 5th and 14th amendments. As a previous commented correctly noted - analyzing potential nominees based on their potential race or gender is just as silly and misguided as analyzing nominees based on their musical tastes, what car they drive, or their middle names. Judges do not have to be impartial in their judicial philosophy...they have to be impartial in how they APPLY that philosophy to a given set of facts.
(I'm still somewhat surprised that these points are even being debated on a libertarian blog.)
i'm not sure i see the distinction that you are making between a deliberative body and a body of referees. the court deliberates and then referees. they exchange a complicated series of arguments, and then make decisions on the basis of those arguments. sometimes basketball referees stand on the sideline and deliberate about a difficult call for awhile. their call is often better because their diverse positioning around the court affords them a wider range of relevant perspectives. if we assume that being a member of some major, socially salient category (gender, race, class, etc.) affords one a perspective that is different in a way that bears on the likely interpretation of laws, then it seems like you would want to make sure that as many important perspectives as possible are fairly represented. this is particularly true if you reject the assumption - as i do - that some strong form of impartiality is normally an attainable ideal in the context of the supreme court, or that an adequate interpretation of law can be conducted independently of a much broader regard for one's social environment and history. but you may accept those two assumptions.
Basketball refs stand on the sidelines and deliberate at times but not to suggest that the other judges agree to make the call for a player one of the refs identifies with, or to suggest a different set of rules. They deliberate because certain areas of play were blocked off from their view or because they were not looking at an area where something happened that could change the play. 'Empathy' has nothing to do with the calls (other than the NBA's empathy with star players that make its officiating some of the worst in professional sports, there may be a lesson there).
Call them by the rules and the country survives, call them based on race or gender etc, and you pervert the constitution.
No, it's the Republicans who are stupid.
What's more, I'd wager they lower the average I.Q. of all Americans by at least ten points.
On the off chance that you're anything but an obnoxious troll, read it and weep. Democrats 99, Republicans 112.
http://www.halfsigma.com/2006/06/democrats_may_...
I'm sure you'd lose your wager either way, but I was just curious about how far below average you were.
Moreover, the Supreme Court's most frequent task is to interpret statutes passed by congress. For that job, I want a justice who's focused on what congress intended, not what the she personally feels the law should be. What is the point of Congress negotiating over the precise wording of a statute, if the Court is going to disregard those words and impose its own policy preferences? If Congress wants to pass a cold-hearted (but constitutional) law, the Court's job is to apply it to achieve its intended cold-hearted ends, not re-write it to conform to a judge's empathetic views.
Really, competing versions of "empathy" legitimately come into play only in a few corners of constitutional law, such as the Amendments governing "unreasonable" seaches or "cruel and unsusal" punisment, or the right to privacy. For those questions, I say the most important brand of "empathy" is an openness to the concerns of all the players on both sides of the issue. A judge whose idea of empathy is "my race/gender/interest group should always win" is a bad judge. I also want a judge who will give due weight to broad consensus views, if they exist. Only after those two criteria are met, and only for a handful of the Court's cases, I could see some limited value in trying to achieve diversity of viewpoint on the Court.
I don't think gender is a reliable predictor of the viewpoint a justice will bring to constitutional issues. Ginsberg (voting with one or more male justices) often disagreed with O'Connor. The best way to achieve diversity is based on career path: I want one justice who spent years defending criminals, one who prosecuted them, a plaintiff's lawyer, a corporate lawyer, and at least one who served in Congress or a high-level white house post. But if I can't have that, give me 9 people who all feel deeply that it's their job to interpret the law, not make it up.
That said, it does seems to me that the left has enjoyed a pattern of judges trumping the letter of the law (statutory or constitutional) by making a bogus claim that a judgment call needs to be made, and following up with a leftist judgment call. The right certainly does this sometimes. Parts of the right circling around Bork even seem to be scheming to run the pattern in reverse. So far, though, the right doesn't seem to have succeeded to nearly the same extent as the left
That doesn't mean the Right doesn't have its own history of using powerful offices to violate the letter of the law. If you want to feel more empathy about how libertarians (and various non-Bork-ish Republicans) react to such a pattern, try asking the leftist who influences you the most how he or she feels about Reagan's interpretation of arms control treaties, and of international law and statutory law limiting things like the Contras. And, similarly, about Bush's interpretation of laws, constitutions and treaties regarding torture, detentions, wiretapping, etc.
(At Cornell, a philosophy graduate student earnestly scolded me for being so naive, in my complaints about New Deal jurisprudence, because documents cannot have absolute meaning. An unanswerable argument...until the next time we met, when he incautiously led with his chin by choosing to complain about how Star Wars clearly violated arms control treaties. It had clearly never occurred to him that outside the philosophy departmental echo chamber, it would be mighty hard to defend both positions simultaneously.)
It really does seem to me that "empathy" here is primarily a recognizable code word for a pattern of leftist judges letting leftist priorities override the letter of the law. Thus, I find it creepy in about the same way that I would find it if some passionately Republican body empowered to appoint our next President started talking about selecting candidates based on seeming code for willfully ignoring clear statutory law, treaties, and the constitution: candidates with "vital executive courage" or some such thing.
If Obama had 6 or 36 months ago praised Rose Bird for the empathy she had demonstrated on death penalty cases, it might have have been politically unwise, but would it have been politically unclear?
Secondarily, "empathy" can mean the style of decisionmaking that has apparently given us modern used-to-be-contract tort law. As I understand it, a lot of contract law is traditionally judicial precedent anyway, so judges tweaking it seems a lot less scarily unsound than, say, reading new fine print (abortion rights! but no pot or homosexual or prostitution rights!) into a penumbra, or discovering that the New Deal was constitutional. But the result of the new precedents doesn't seem particularly good. In contracts in particular, unthinking populists and thinking tort lawyers do of course love their big jackpots. But thoughtful leftists should be disturbed by industries which have been severely screwed up, notably manufacture and development of vaccines.
Tertiarily "empathy" can mean, as you say, empathy with one's own ethnic group and gender. Nothing could be wrong with that! In fact, as they say, what could possibly go wrong? Of course, it is lucky that this value was not discovered a year ago, or else it might have encouraged men or whites to rationalize voting against Clinton or Obama, which would have been wrong. But now that it has been discovered and happens to be convenient, the principle should of course be applied vigorously. We can worry about putting the genie back in the bottle at some time in the future, if it ever happens that some election draws nearer.
How so? I’m a white guy, and I certain believed that either Clinton or Obama would better promote my long-term self-interest than Bush or his endorsed successor would have. I don’t understand “empathy” to mean tribalism.
But I believe you are pretty clearly mistaken. Within constitutional law discourse, empathy is about departing from the letter of the law to promote substantive results that are thought to be justified by our concern for others. This is the language of Justice Brennan.
Do you have any evidence to support your first paragraph claim?
Otherwise, why bother looking at the Constitution?
Here's the code: "Empathy" means that the weaker party is always right in every case before the Supreme Court, unless the Federal Government is being sued. It's class analysis. There are more of us little guys and the courts should favor us.
This is one of the guiding lights of President Obama's administration.
Obama won't stop until he's hacked the golden goose into a thousand bloody slivers.
If empathy is to be Mr. Obama's standard, then we'll get the feel-good, nice-nice, maximum good for the maximum number decisions we deserve. Note however, that "justice" becomes lost, not found, in the slop of empathy.
With regards to empathy, I'm with Will here. Empathy is about understanding the cases in such a way that the relevant facts are taken into account.
What of the appellate court's role in determining the tests to be applied by lower courts? For instance, in 4th Amendment law courts are to look at the "totality of the circumstances," in determining, say, whether a seizure of the person has occurred or whether a police encounter is "mere contact." Appellate courts create broad guidelines for lower courts to follow, and often give examples of "circumstances" that are "relevant" for lower courts to consider when making their judgments on a motion to suppress (or whatever). Isn't it possible that a judge's experiences may help shape the kinds of "circumstances" that are "relevant" for that kind of analysis?
http://ninthjustice.nationaljournal.com/2009/05...
That's exactly the attitude the Supreme Court needs. NOT.
"Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true."
Our evidence has grown since then, enough to make Will's post "Uncontroversial" as a description of the universe.