Will Wilkinson - Latest Comments in What's Wrong With Empathy?

Re: What's Wrong With Empathy?

Oscar — Wed, 09 Dec 2009 07:22:12 -0000

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Re: What's Wrong With Empathy?

rightwingradical123 — Thu, 28 May 2009 15:43:01 -0000

About as well as the exam that Sotormayor struck down that the Conneticut firefighters took. When enough minorities did not pass the test, they threw it out so they could achieve their hiring quotas.

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.

Re: What's Wrong With Empathy?

Josh — Wed, 20 May 2009 03:24:55 -0000

I was intrigued by this debate and decided to flex my "philosophy of law muscles" (from one undergrad class). The way I see it, the debate reminds me of the philosophy of law debate of whether judges legislate whenever they interpret the law. It reminds me of back-and-forth essays of Justice Scalia and Ronald Dworkin about Scalia's claimed "textualism" - interpreting the law from the context of the writers (take for example of whether the death penalty counted as "cruel and unusual" in 1700s or today). To me, Scalia's claim to be "true to the original" is just an elaborate justification for his conservative tendencies and Dworkin's push for a more flexible interpretation of the Constitution (e.g. the Fourteenth Amendment is legal grounds for banning segregation, though its writers probably didn't consider segregation in the 1800s), is an elaborate justification for more liberal policies. It seems to me this push and pull is necessary for some balance - on one hand we obviously don't live with the same mindset as people in the 18th century, but we do want the words in the law to have some sort of consistent meaning throughout history ("all animals are equal but some are more equal than others" as an extreme example). Call me a realist or whatever...

Re: What's Wrong With Empathy?

Greg N. — Mon, 18 May 2009 21:06:01 -0000

Did you play any of the Justices? If so, did you win? And, if so, when you won, did you yell something ferociously at them in triumph?

Re: What's Wrong With Empathy?

Will Wilkinson — Mon, 18 May 2009 16:04:28 -0000

One of my housemates at the time was clerking for Roberts and got us in. Singular DC experience, like bowling at the White House.

Re: What's Wrong With Empathy?

Greg N. — Mon, 18 May 2009 15:47:10 -0000

How'd you get to play ball in the SC gym?

Re: What's Wrong With Empathy?

Will Wilkinson — Mon, 18 May 2009 11:28:02 -0000

I wasn't talking legalese, since I think the deeper, philosophical perspective is more illuminating. You'll have to believe me that I understand pretty well how the whole thing actually works. Some of my best friends (and former roomates) clerked in the various appeals courts. And I've played basketball in the Supreme Court gym, which is obviously qualifies me to speak on matters of the judiciary.

Re: What's Wrong With Empathy?

Greg N. — Mon, 18 May 2009 11:04:53 -0000

Empathizer,

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?

Re: What's Wrong With Empathy?

harkin — Mon, 18 May 2009 09:42:06 -0000

Tyler has it exactly right. Mike distorts the sports officiating analogy to make a weak argument for taking the blinds off of justice.

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.

Re: What's Wrong With Empathy?

Sargent — Mon, 18 May 2009 09:19:05 -0000

Federalist No.10:

"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.

Re: What's Wrong With Empathy?

Empathizer — Sun, 17 May 2009 23:10:34 -0000

It is apparent that neither you nor Will have the slightest clue about how appellate courts actually operate in this country. The Supreme Court is an appellate body, not a district court where "relevant facts are taken into account." And even if it were, the only possible source of empathy could properly come from the jury, not the judge. There is a reason juries are not part of the appellate process - an appeals court is not a "fact finder." We are getting into basic first year con law/civ pro stuff here. I'm actually a bit disappointed that this softball was whiffed so badly on an otherwise fantastic and thought-provoking blog.

Re: What's Wrong With Empathy?

uknowbetter — Sun, 17 May 2009 22:09:47 -0000

Who needs logic, facts, and the law when you can have FEELINGS?

That's exactly the attitude the Supreme Court needs. NOT.

Re: What's Wrong With Empathy?

Anonymous — Sun, 17 May 2009 20:19:00 -0000

That's exactly the opposite of how law ought to work. Governments ought to be governments of law, not of men. In cases where the lawmakers are still alive, we do not go back to them to ask to clarify disagreements as to the meaning, but we have the letter of the law stand on its own merit. The same is true in situations where the lawmakers are dead. Except in the most linguistic sense, we should not care one slightest bit what the founding fathers would have thought, but what the words mean. And many of these words are in fact rather complicated concepts, or which refer to entities external to the constitution which may change (such as what is "unusual"), and for many of these concepts there is similar language in other courts to which we may refer to their expertise. And, in cases where the language is simply hopelessly ambiguous, then it might be preferable to not interpret the law in a way which actively causes harm.

Re: What's Wrong With Empathy?

Murali — Sat, 16 May 2009 13:30:11 -0000

Utter BS. Citation of foreign laws has noting to do with empathy and more to do with the practice of common law. What are the precedents, what are the principles in application, is the case relevant, etc.

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.

Re: What's Wrong With Empathy?

a Duoist — Fri, 15 May 2009 20:30:12 -0000

What 'empathy' gives to jurisprudence is unlimited subjectivity. If as a jurist I am empathetic to Buddhism's life suffering or Marx's eternal class struggle or Hitler's quest for purification of the Aryan race, then my decisions will track my empathy, NOT the intent of the Framers. Justice Kennedy's citation of foreign laws for American decisions is a case of empathy at work.

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.

Re: What's Wrong With Empathy?

John Markley — Fri, 15 May 2009 19:37:12 -0000

This post seems either astonishingly naive or breathtakingly cynical. It reads like something written by an alien who has been given an English dictionary but has been denied any knowledge of what American political factions are like or how they use language. When John McCain was attacking self-interest and material prosperity and carrying on about "sacrifice," "service," and "a cause larger then yourself," and so on, did you think he just meant that you should give a few bucks to the local soup kitchen?

Re: What's Wrong With Empathy?

nobody.really — Fri, 15 May 2009 15:17:27 -0000

Uh, you may want to check the update....

http://www.halfsigma.com/20...

Re: What's Wrong With Empathy?

nobody.really — Fri, 15 May 2009 15:08:31 -0000

"[E]mpathy" 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....

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.

Re: What's Wrong With Empathy?

IOZ — Fri, 15 May 2009 13:30:07 -0000

Will, your comments section is the cat's pajamas. Seems like you've managed to collect a fine cross-section of followers who put in the bookmark just before Article 3 and switched off the lamp for the night.

Re: What's Wrong With Empathy?

PMP — Fri, 15 May 2009 11:54:49 -0000

Will, your comment goes wrong in the very first paragraph and then you proceed at 1000 miles an hour on the wrong track. Let me see if I can help.

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.

Re: What's Wrong With Empathy?

Alz — Fri, 15 May 2009 00:02:59 -0000

We don't need empathy, we need people who will strive to interpret and judge the issue at hand according to the Constitution - no more, no less.

Otherwise, why bother looking at the Constitution?

Re: What's Wrong With Empathy?

Susan — Thu, 14 May 2009 22:15:44 -0000

We need to keep Will honest, though he may be sleeping on the couch a few nights a week...

Re: What's Wrong With Empathy?

Mark G — Thu, 14 May 2009 13:17:29 -0000

Man, Will -- Tough audience you have here!

Re: What's Wrong With Empathy?

Falsh Farmer — Thu, 14 May 2009 08:05:27 -0000

You don't have to do this. You're already married.

Re: What's Wrong With Empathy?

Mike Rappaport — Thu, 14 May 2009 03:33:07 -0000

I really like your blog, but your post here is pretty weak in my view. Your first paragraph asserts, with no evidence whatsoever, that emphathy is short for more diversity on the court. The rest of the post goes off on justifying diversity.

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?