Your views on Judicial temperament and how Justices decide issues.

[Moonbeam]

I believe that the normal view of a Justice is of a person who dispassionately looks at the law to render a decision. I certainly think this would need to be the case in a court room trying criminal cases, but I question whether it is is cases say in the Supreme Court where, if I man say so, policy is made by how laws are interpreted in view of the Constitution.

We know, for example, that 9 impartial and objective Justices who only judge by the law divide up 5 4 or 4 5 on a large number of issues which, of course, is a logical absurdity is impartiality and objectivity really mean what one might expect, a single result or answer.

Now we say the Justices rule according to law but they come up with different results, which is why we have multiple people on the court.

I think this idea that people rule by the law and interpret the law and apply it to various decisions is only a superficial feature. I think what really happens is that each Justice feels differently about different things and those feelings determine what he sees in the law.

This is why I think Obama correctly is looking for a Justice who has empathy for common people. Such a justice will see in the law how the law supports the notions of equality that will favor such an individual is say, some contest with a corporation, that a corporate lawyer on the Supreme court might not have sympathy for and de-emphasize in his own analysis.

The question is justice but it matters to whom you want to bring justice. I don't think empathy there is any other way to insure justice than to have empathy.

A conservative justice will have empathy for one kind of interpretation and a liberal justice another, but both have empathy. It is absurd to call one empathetic and the other objective and objective. That, to me is a fiction and a political lie.

Doing justice is for some doing what is in the law, but the law is only our feeble attempt to codify what is right. So doing justice is really doing what is right. This is why the law evolves. What is right can only be seen in the constantly evolving context that informs our American life.

Do you believe the claim that justice based on the past, as in an original interpretation of the Constitution, which is itself, ultimately subjective, the proper foundation for a Justice to rule by, or do you think that Justice is always based on how people's feelings evolve over time, how our conscious awareness of what Justice is evolves and develops?

 

[dphantom]

Originalist. Otherwise, our Constitution can be anything to anyone meaning nothing to no one.

 

[BMW540I6speed]

Empathy is the ability to put yourself in someone else's shoes and consider things from their perspective. That's all it is. It doesn't entail that you take that other perspective to be privileged in any sense, or biased towards it. Merely that you're capable of considering it.

A point explicitly made by Sotomayer herself:

"We should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

I'm not sure how being able to consider other points of view necessarily entails bias towards one side of a legal dispute. Problems arise when people's argument relies on conflating "empathy" and "sympathy".

 

[JeffreyLebowski]

Originally posted by: Moonbeam
I believe that the normal view of a Justice is of a person who dispassionately looks at the law to render a decision. I certainly think this would need to be the case in a court room trying criminal cases, but I question whether it is is cases say in the Supreme Court where, if I man say so, policy is made by how laws are interpreted in view of the Constitution.

We know, for example, that 9 impartial and objective Justices who only judge by the law divide up 5 4 or 4 5 on a large number of issues which, of course, is a logical absurdity is impartiality and objectivity really mean what one might expect, a single result or answer.

Now we say the Justices rule according to law but they come up with different results, which is why we have multiple people on the court.

I think this idea that people rule by the law and interpret the law and apply it to various decisions is only a superficial feature. I think what really happens is that each Justice feels differently about different things and those feelings determine what he sees in the law.

This is why I think Obama correctly is looking for a Justice who has empathy for common people. Such a justice will see in the law how the law supports the notions of equality that will favor such an individual is say, some contest with a corporation, that a corporate lawyer on the Supreme court might not have sympathy for and de-emphasize in his own analysis.

The question is justice but it matters to whom you want to bring justice. I don't think empathy there is any other way to insure justice than to have empathy.

A conservative justice will have empathy for one kind of interpretation and a liberal justice another, but both have empathy. It is absurd to call one empathetic and the other objective and objective. That, to me is a fiction and a political lie.

Doing justice is for some doing what is in the law, but the law is only our feeble attempt to codify what is right. So doing justice is really doing what is right. This is why the law evolves. What is right can only be seen in the constantly evolving context that informs our American life.

Do you believe the claim that justice based on the past, as in an original interpretation of the Constitution, which is itself, ultimately subjective, the proper foundation for a Justice to rule by, or do you think that Justice is always based on how people's feelings evolve over time, how our conscious awareness of what Justice is evolves and develops?

Do you have empathy for people that pass a test to determin if they will get a promotion, but are then denied that promotion because the results didn't turn out the way they wanted so they could promote "minorities" This lady ruled that it was fair to discriminate, And there's no denying that it was partially biased on her views of "racial equality". WE have a woman who said that Hispanic women would make better choices than white men. That's racist, pure and simple. Had Alito said White men would make better choices than black women he wouldn't haven't even been considered.

 

[Mursilis]

My problem with empathy as a judical requirement is this: empathy for whom? I'm reminded of the many criminal procedure cases the Supreme Court has considered in which evidence which clearly establishes guilt was obtained unconstitutionally, and is therefore ruled inadmissable. Sure, civil libertarians will justly rejoice at the Court's rebuke of the powers of the State to act with impunity, but what about the victim and his/her family? Where is the empathy for the mother told her son's killer won't face justice because the agents of the state botched the prosecution of the crime? Has justice been done? It's not an easy balance.

 

[Moonbeam]

Originally posted by: dphantom
Originalist. Otherwise, our Constitution can be anything to anyone meaning nothing to no one.

Nobody knows what Originality means or how an Original would rule today. Any interpretation of the Constitution is an interpretation. Calling it original is a smoke screen designed to lend legitimacy to a point of view as subjective an any other. Every liberal interpretation is also Original in the eyes of the judge rendering such an opinion. And a tremendous body of our law deals with things that were undreamed of by the Founding Fathers.

 

[Moonbeam]

JL: Do you have empathy for people that pass a test to determin if they will get a promotion, but are then denied that promotion because the results didn't turn out the way they wanted so they could promote "minorities" This lady ruled that it was fair to discriminate, And there's no denying that it was partially biased on her views of "racial equality". WE have a woman who said that Hispanic women would make better choices than white men. That's racist, pure and simple. Had Alito said White men would make better choices than black women he wouldn't haven't even been considered.

Yes I have empathy for the people who pass a test. I have empathy for the fact that tests are often culture based. I have empathy for the notion that Hispanic women can make better choices that white men. I have empathy for white men. I am here, however, not focused on any one case or individual but on how we see what is at the core of a generic Judge.

 

[Moonbeam]

BMW: Empathy is the ability to put yourself in someone else's shoes and consider things from their perspective. That's all it is. It doesn't entail that you take that other perspective to be privileged in any sense, or biased towards it. Merely that you're capable of considering it.

M: Yes and the ability to put yourself is somebody else's shoes effectively is helped by having real experience with being in their shoes. The capacity to for Empathy can vary from one person to another, no?

BMW: A point explicitly made by Sotomayer herself:

"We should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

M: I agree. And the law is most helpful with our equality provisions.

BMW: I'm not sure how being able to consider other points of view necessarily entails bias towards one side of a legal dispute. Problems arise when people's argument relies on conflating "empathy" and "sympathy".

M: Bias is one thing, empathy another, I think. It is, in my opinion, again, a matter of the degree of empathy. It is more difficult to empathize with a basket ball than a lost kitten though people might vary on each. People, I think vary in their capacity to emphasize and on what they most emphasize with. Personally I see no need to impute bias into sympathy and more than empathy. They go hand in hand it seems to me. I don't see having sympathy for a criminal, for example, affecting one realization he may need to be separated from other people so he doesn't harm anyone.

 

[Moonbeam]

Originally posted by: Mursilis
My problem with empathy as a judical requirement is this: empathy for whom? I'm reminded of the many criminal procedure cases the Supreme Court has considered in which evidence which clearly establishes guilt was obtained unconstitutionally, and is therefore ruled inadmissable. Sure, civil libertarians will justly rejoice at the Court's rebuke of the powers of the State to act with impunity, but what about the victim and his/her family? Where is the empathy for the mother told her son's killer won't face justice because the agents of the state botched the prosecution of the crime? Has justice been done? It's not an easy balance.

Exactly so because there is gravitas on both sides. I think this is why judges with prosecutorial and defense experience are desirable, no?

 

[Mursilis]

Originally posted by: Moonbeam

Originally posted by: dphantom
Originalist. Otherwise, our Constitution can be anything to anyone meaning nothing to no one.

Nobody knows what Originality means or how an Original would rule today. Any interpretation of the Constitution is an interpretation. Calling it original is a smoke screen designed to lend legitimacy to a point of view as subjective an any other.

Hopefully we can agree that while Constitutional interpretation is indeed subjective, some views are going to be more legitimate than others. For example, if the 19th Amendment says:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. "

and yet Colorado passes a law banning women from the vote, somebody somewhere could probably concoct an argument that this law isn't unconstitutional; however, we'd all probably be hard-pressed to find that viewpoint even slightly legitimate.

And a tremendous body of our law deals with things that were undreamed of by the Founding Fathers.

Then the Court should (but rarely does) beg off offering a ruling on that subject. Even some pro-choice legal scholars have found Roe v. Wade to be a bad precedent.

 

[Mursilis]

Originally posted by: Moonbeam

Originally posted by: Mursilis
My problem with empathy as a judical requirement is this: empathy for whom? I'm reminded of the many criminal procedure cases the Supreme Court has considered in which evidence which clearly establishes guilt was obtained unconstitutionally, and is therefore ruled inadmissable. Sure, civil libertarians will justly rejoice at the Court's rebuke of the powers of the State to act with impunity, but what about the victim and his/her family? Where is the empathy for the mother told her son's killer won't face justice because the agents of the state botched the prosecution of the crime? Has justice been done? It's not an easy balance.

Exactly so because there is gravitas on both sides. I think this is why judges with prosecutorial and defense experience are desirable, no?

Most experience is desirable, but my example, at least to me, suggests that judges should concern themselves with interpreting the law in a reasonable fashion, and not worry so much about the result, at least not first and foremost.

 

[Gonad the Barbarian]

There is a problem with any judge where clearly race matters and influences their decisions. Race shouldn't matter. Period. This isn't empathy or sympathy, it's bigotry.

 

[Moonbeam]

Mu: Hopefully we can agree that while Constitutional interpretation is indeed subjective, some views are going to be more legitimate than others. For example, if the 19th Amendment says:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. "

and yet Colorado passes a law banning women from the vote, somebody somewhere could probably concoct an argument that this law isn't unconstitutional; however, we'd all probably be hard-pressed to find that viewpoint even slightly legitimate.

Mo: I agree. But what is legitimate and what is not is exactly what is subjective. The issue goes to what becomes ingrained in one's understanding, it seems to me. The founding fathers, I think would have ruled against women, but that view has largely disappeared today. Legitimate includes more people today.

-------

Mo: "And a tremendous body of our law deals with things that were undreamed of by the Founding Fathers."

Mu: Then the Court should (but rarely does) beg off offering a ruling on that subject. Even some pro-choice legal scholars have found Roe v. Wade to be a bad precedent.

Mo: I think time and change need to be addressed. We can't stay in the 16th century.

-------

Mu: Most experience is desirable, but my example, at least to me, suggests that judges should concern themselves with interpreting the law in a reasonable fashion, and not worry so much about the result, at least not first and foremost.

Mo: I don't see how you can have justice without an eye to outcome. It is, after all, the outcome that you want to be just, no?

 

[Mursilis]

Originally posted by: Moonbeam
Mu:Hopefully we can agree that while Constitutional interpretation is indeed subjective, some views are going to be more legitimate than others. For example, if the 19th Amendment says:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. "

and yet Colorado passes a law banning women from the vote, somebody somewhere could probably concoct an argument that this law isn't unconstitutional; however, we'd all probably be hard-pressed to find that viewpoint even slightly legitimate.

Mo: I agree. But what is legitimate and what is not is exactly what is subjective. The issue goes to what becomes ingrained in one's understanding, it seems to me. The founding fathers, I think would have ruled against women, but that view has largely disappeared today. Legitimate includes more people today.

Well, yes, that view has (largely) disappeared today, but what made woman's sufferage legitimate was not a Court decision, but an actual Constitutional Amendment - that's the way to handle such issues, so it doesn't fester for years and call into question the rest of the Court's body of work. And that's the process the Founding Fathers intended.

Mo: "And a tremendous body of our law deals with things that were undreamed of by the Founding Fathers."

Mu: Then the Court should (but rarely does) beg off offering a ruling on that subject. Even some pro-choice legal scholars have found Roe v. Wade to be a bad precedent.

Mo: I think time and change need to be addressed. We can't stay in the 16th century.

Clearly, but see above. The Constitution has a recognized amendment process. It's certainly a more democratic and representative process than having a group of nine unelected lifetime appointees decide what new rights need to be created every year.

 

[n yusef]

Originally posted by: Mursilis

Originally posted by: Moonbeam
Mu:Hopefully we can agree that while Constitutional interpretation is indeed subjective, some views are going to be more legitimate than others. For example, if the 19th Amendment says:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. "

and yet Colorado passes a law banning women from the vote, somebody somewhere could probably concoct an argument that this law isn't unconstitutional; however, we'd all probably be hard-pressed to find that viewpoint even slightly legitimate.

Mo: I agree. But what is legitimate and what is not is exactly what is subjective. The issue goes to what becomes ingrained in one's understanding, it seems to me. The founding fathers, I think would have ruled against women, but that view has largely disappeared today. Legitimate includes more people today.

Well, yes, that view has (largely) disappeared today, but what made woman's sufferage legitimate was not a Court decision, but an actual Constitutional Amendment - that's the way to handle such issues, so it doesn't fester for years and call into question the rest of the Court's body of work. And that's the process the Founding Fathers intended.

Mo: "And a tremendous body of our law deals with things that were undreamed of by the Founding Fathers."

Mu: Then the Court should (but rarely does) beg off offering a ruling on that subject. Even some pro-choice legal scholars have found Roe v. Wade to be a bad precedent.

Mo: I think time and change need to be addressed. We can't stay in the 16th century.

Clearly, but see above. The Constitution has a recognized amendment process. It's certainly a more democratic and representative process than having a group of nine unelected lifetime appointees decide what new rights need to be created every year.

So you don't support Brown v. Board of Education?

 

[Mursilis]

Originally posted by: n yusef
So you don't support Brown v. Board of Education?

This thread was going great until someone let in the trolls.

 

[sandorski]

Good thread Moonie. Spot on observations. Can a Court be Just if it has no Experience or Knowledge of those it seeks to bring Justice to? I say No. If it was all Cut/Dry Claer as Day, we might as well just whip something up in Excel and dispense Justice at 3ghz. The Human Element and all that it entails is what makes Justice, Just. Justice may be "Blind", but that does not entail all aspects of Justice, it merely means that Justice seeks to treat all as Equals. It does not mean that Circumstances and other Factors have no influence on Decisions, because Humans do not act in ways that can be Mathematically ascertained. This is why Laws for Murder make distinctions between just "Murder" and Murder caused by other circumstances(Self Defence, Aggravation, longterm Abuse, etc)

 

[Fern]

Originally posted by: Moonbeam
I believe that the normal view of a Justice is of a person who dispassionately looks at the law to render a decision. I certainly think this would need to be the case in a court room trying criminal cases, but I question whether it is is cases say in the Supreme Court where, if I man say so, policy is made by how laws are interpreted in view of the Constitution.
-snip-

I think you have it exactly opposite Moonie.

IMO, "empathy" belongs at the lower courts where it can be 'used' effectively. Those judges try case-by-case, showing empathy to a defenant deserving of it doesn't automatically translate into everyone else getting it. IMO, all this talk of empathy, sex and ethnicity is misplaced at the SCOTUS level. If there is any benefit to those intangibles it must done in a discretionary manner - SCOTUS ain't discretionary, it's mandatory for everyone for forever (at least until they overturn themselves)

So, the SCOTUS is about precedent. When they are deciding a case, it isn't really about that specific one; it's more about an interpretation of the Constitution that apllies to everyone. So, everybody gets the benefit (or harm) of whatever ruling they make. When you're doing that, stick with the law and objective reasoning.

In any case, the true correct place for empathy and the like is when creating laws.

Fern

 

[Moonbeam]

Originally posted by: Mursilis

Originally posted by: n yusef
So you don't support Brown v. Board of Education?

This thread was going great until someone let in the trolls.

I don't see that as a troll post, actually. You made a good case as to how our laws should evolve, by a vote of the people, but that is a very unusual and difficult thing to accomplish and would mean that we are always decades behind evolutionary trends. He countered by pointing out an area where most folk agree the court acted in a proper and good evolutionary way.

 

[Moonbeam]

Originally posted by: sandorski
Good thread Moonie. Spot on observations. Can a Court be Just if it has no Experience or Knowledge of those it seeks to bring Justice to? I say No. If it was all Cut/Dry Claer as Day, we might as well just whip something up in Excel and dispense Justice at 3ghz. The Human Element and all that it entails is what makes Justice, Just. Justice may be "Blind", but that does not entail all aspects of Justice, it merely means that Justice seeks to treat all as Equals. It does not mean that Circumstances and other Factors have no influence on Decisions, because Humans do not act in ways that can be Mathematically ascertained. This is why Laws for Murder make distinctions between just "Murder" and Murder caused by other circumstances(Self Defence, Aggravation, longterm Abuse, etc)

Thank you.

 

[Moonbeam]

F: IMO, "empathy" belongs at the lower courts where it can be 'used' effectively. Those judges try case-by-case, showing empathy to a defenant deserving of it doesn't automatically translate into everyone else getting it. IMO, all this talk of empathy, sex and ethnicity is misplaced at the SCOTUS level. If there is any benefit to those intangibles it must done in a discretionary manner - SCOTUS ain't discretionary, it's mandatory for everyone for forever (at least until they overturn themselves)

M: You chose to focus on how a lack of empathy can lead to legal sentences that are too harsh for the real person and his real crime. I chose to focus on how empathy can impair ones good judgment and lead to too soft a sentence the criminal will abuse. It depends on the kind of empathy, I guess and where it goes.

F: So, the SCOTUS is about precedent. When they are deciding a case, it isn't really about that specific one; it's more about an interpretation of the Constitution that apllies to everyone. So, everybody gets the benefit (or harm) of whatever ruling they make. When you're doing that, stick with the law and objective reasoning.

M: Well see, when you are dealing with everybody you need to be able to be in everybody's shoes and need lots of empathy, in my opinion.

F: In any case, the true correct place for empathy and the like is when creating laws.

M: Makers of law should use more judgment, in my opinion. Too often laws are based on reactionary feelings and have too many unintended consequences, lapses in critical thinking and judgment, if you ask me.

 

[Fern]

Originally posted by: Moonbeam
-snip-
F: So, the SCOTUS is about precedent. When they are deciding a case, it isn't really about that specific one; it's more about an interpretation of the Constitution that apllies to everyone. So, everybody gets the benefit (or harm) of whatever ruling they make. When you're doing that, stick with the law and objective reasoning.

M: Well see, when you are dealing with everybody you need to be able to be in everybody's shoes and need lots of empathy, in my opinion.

IMO, the whole "sex and ethnic' thingy is counter to your above remark. I hope I'm wrong but what her remarks sound like it's not "everybody's shoes" she's representing, but only certain groups 'shoes".

As a lower court judge I think that's OK. But as a SCOTUS judge your perspective needs to be for everybody, not a select class(es).

Fern

 

[n yusef]

Originally posted by: Mursilis

Originally posted by: n yusef
So you don't support Brown v. Board of Education?

This thread was going great until someone let in the trolls.

Are you calling my question a troll, or was that a personal attack? I realize that I am unpopular on this forum, I would hope that any dissenting opinion is not considered a troll.

You posted an argument against "a group of nine unelected lifetime appointees decide what new rights need to be created." Civil Rights cases like Brown and Loving are examples of that kind of nondemocratic decisions. I think it is a fair to ask, are you against these decisions?

It is generally agreeable that Civil Rights are Good. To be against the granting of Civil Rights, one should provide mitigating factors that are a greater Bad than the Good of Civil Rights. Some political philosophies value the democratic process over its consequences, in this case civil rights. If you hold such a philosophy, then I would appreciate if you could clarify it, and describe why you believe it.

 

[n yusef]

Originally posted by: Fern

Originally posted by: Moonbeam
-snip-
F: So, the SCOTUS is about precedent. When they are deciding a case, it isn't really about that specific one; it's more about an interpretation of the Constitution that apllies to everyone. So, everybody gets the benefit (or harm) of whatever ruling they make. When you're doing that, stick with the law and objective reasoning.

M: Well see, when you are dealing with everybody you need to be able to be in everybody's shoes and need lots of empathy, in my opinion.

IMO, the whole "sex and ethnic' thingy is counter to your above remark. I hope I'm wrong but what her remarks sound like it's not "everybody's shoes" she's representing, but only certain groups 'shoes".

As a lower court judge I think that's OK. But as a SCOTUS judge your perspective needs to be for everybody, not a select class(es).

Fern

Everyone understands the perspective of the mainstream/dominant culture (i.e. the perspective of politically moderate heterosexual middle class white men). When one lives in this country and is surrounded by and inundated with media made by this demographic, it is impossible not to understand. This perspective is not replaced by a lower class, women's, racial minority's or sexual minority's perspective, it is augmented by them. Du Bois called this double consciousness.

Sotomayor has lived in this society for 54 years. She understands the perspective of the dominant culture, and that of her own subculture. So do all people who are members of a non-dominant/marginalized group. To be successful, one has to understand the dominant perspective.

 

[Craig234]

Originally posted by: Mursilis

Originally posted by: Moonbeam

Originally posted by: dphantom
Originalist. Otherwise, our Constitution can be anything to anyone meaning nothing to no one.

Nobody knows what Originality means or how an Original would rule today. Any interpretation of the Constitution is an interpretation. Calling it original is a smoke screen designed to lend legitimacy to a point of view as subjective an any other.

Hopefully we can agree that while Constitutional interpretation is indeed subjective, some views are going to be more legitimate than others. For example, if the 19th Amendment says:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. "

and yet Colorado passes a law banning women from the vote, somebody somewhere could probably concoct an argument that this law isn't unconstitutional; however, we'd all probably be hard-pressed to find that viewpoint even slightly legitimate.

And a tremendous body of our law deals with things that were undreamed of by the Founding Fathers.

Then the Court should (but rarely does) beg off offering a ruling on that subject. Even some pro-choice legal scholars have found Roe v. Wade to be a bad precedent.

Perhaps a better hypothetical would be that a state wanted to ban women from voting, and so it passes a height requirement for voting - say, 5'8", some value which includes a few taller women and excludes a few shorter men but by and large which excludes most women and includes most men (or any other such requirement that has the same type of result).

In that case, the court would have to rule whether the measure was unconstitutional because they *believe* its 'real intent' is to exclude many women and that makes it unconstitutional; or whether they're more literal, more 'strict constructionists' who say 'there are many restrictions that might affect the sexes unequally. The states who restrict felons' voting rights exclude far more men than women. The constitution only says sex may not directly be a discriminatory factor, therefore height is constitutionally allowed.'

If you rule against the law, you can be attacked as an 'activist judge' 'making law from the bench' who 'pretends to say what the lawmakers were motivated by, second guessing the people's elected representatives'. If you rule for the law, you can be attacked as failing to defend the spirit of the amendment, failing to defend justice, lacking common sense, etc.

Of course this is a fairly simple and clear example; the real laws can be a lot more subtle.