Interestingly enough, extremely conservative (then) nominee Samuel Alito also extolled the virtues and necessity of empathy during his confirmation hearing I don't remember hearing much complaining from the right about it then.
I like your posts. We tend to spend a lot more posting on the disagreements than who we agree with.
I agree, but what is lacking in an all white or wealthy person court is just the kind of additional empathy the palate of the court is wanting and needs. You don't want always to rely on the empathy of monochromatic justices in a polycromatic country. The court needs to be polycromatic too. You will have, as minorities do, that she will have empathy for whites, no? Why does it have to be, that different kinds of Americans always wind up in a white man's court and have to rely on their empathy. People will feel more of a sense of justice of it's a two way street, no?
n yusef, you aren't unpopular with me, yet, hehe, and I agree with the double consciousness thingi.
eskimo, I think judges become popular or liked by the left or right by the quality of the empathy, the consistency and reliability expressed by the manifestation of their empathy in terms of whom that empathy seems to favor, no?
As judges judge so are they judged and pretty much, I think, by the same standards, how we feel about them with those feelings often rooted in the unconscious.
eskimo, I think judges become popular or liked by the left or right by the quality of the empathy, the consistency and reliability expressed by the manifestation of their empathy in terms of whom that empathy seems to favor, no?
As judges judge so are they judged and pretty much, I think, by the same standards, how we feel about them with those feelings often rooted in the unconscious.
OrByte
Diamond Member
- Jul 21, 2000
- 9,303
- 144
- 106
Moonbeam, I just wish you didn't drive LunarRay away with your insane ramblings!
I'm sure he would have a unique perspective to add to the discussion.
If SCOTUS acts based upon the interpretation of the law and precedence, why are we speaking about the immeasurable qualities of the Judges? Empathy, Subjective reasoning, political leanings...all of those are unknown qualities.
Why not simply analyze the judges performance? As it stands, I think any person that is up for a SCOTUS seat is going to say anything to get the nomination.
I know that I may be cynical, but I'm trying to weigh the intangibles (empathy) against the tangibles (Performance)
I'm sure he would have a unique perspective to add to the discussion.
If SCOTUS acts based upon the interpretation of the law and precedence, why are we speaking about the immeasurable qualities of the Judges? Empathy, Subjective reasoning, political leanings...all of those are unknown qualities.
Why not simply analyze the judges performance? As it stands, I think any person that is up for a SCOTUS seat is going to say anything to get the nomination.
I know that I may be cynical, but I'm trying to weigh the intangibles (empathy) against the tangibles (Performance)
Originally posted by: OrByte
Moonbeam, I just wish you didn't drive LunarRay away with your insane ramblings!
I'm sure he would have a unique perspective to add to the discussion.
If SCOTUS acts based upon the interpretation of the law and precedence, why are we speaking about the immeasurable qualities of the Judges? Empathy, Subjective reasoning, political leanings...all of those are unknown qualities.
Why not simply analyze the judges performance? As it stands, I think any person that is up for a SCOTUS seat is going to say anything to get the nomination.
I know that I may be cynical, but I'm trying to weigh the intangibles (empathy) against the tangibles (Performance)
How interesting, I am chatting with him right now in WOW and just mentioned I started this thread. Maybe he will stop by despite my insane ramblings. I just popped in to see what's cooking while I fly out of Dalaran.
Your question was just trolling, IMHO, sort of like "When did you stop molesting children?" You assumed I don't support Brown, but with no evidence to support that assumption. That's just trolling.
Jaskalas
Lifer
- Jun 23, 2004
- 36,295
- 10,597
- 136
That would be the role of Congress, a judge must uphold the law or else they destroy the law.
They destroyed the law when "necessary and proper" became both beginning and end of our constitution. The entire document includes protections against our government to empower our people. Look how that has turned out, it has been increasingly ignored and broken every decade since its creation.
We are no longer a nation of laws, we are now a nation of whims and on that we will destroy ourselves in short order.
Did you read my post above that suggested he was not trolling.? And why did you only quote a part of his reply to you, the part that suggested he didn't think he was trolling but not the part that explains why:
"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."
In these two paragraphs he clearly states the reasons for his first post that you took issue with and in my post I said essentially the same thing.
It seems to me that you are determined to maintain your position that he was trolling, contrary to solid evidence otherwise. 1. He asked you a question. To ask a question is not to imply. In fact, his question gains its power from the fact that he assumes you probably do support Brown, which makes his question not only logical to ask, but challenges you notion that the proper way to change is via amendment. That is why it would be curious if you didn't support Brown and important to ask if in fact you do not because if you do not, then your position that what is proper can't be challenged by any internal inconsistency in your thinking.
He is asking if the amendment process, which you call the proper way is the only proper way or is action by the court another effective way and therefore also proper? If you do not agree with the effectiveness of Brown and oppose that decision then your argument is logically consistent and we will have to find other arguments to challenge you, but if you approve of Brown it seems to challenge your assertion of what is exclusively proper.
So maybe you could address just the question and leave off with the feelings of being attacked. I just don't see that happening.
I do not really know what to make of your post. In the first place you have me originally quoting somebody else so I have no idea whom you are speaking to or whether in support of rebuttal.
So I have no idea what you are claiming is the role of congress.
I have no idea what you mean by a judge must uphold or destroy.
I have no idea to what you refer when you say look. I look, as it happens, with my eyes and see entirely different thing than you do our of yours.
I have no idea what you mean by necessary and proper or whim or empower the people or how anything is ignored each decade etc.
What you do is make a bunch of claims you never back up, never flesh out, never explain the relevancy of, and yet you seem to imagine you are saying something and that we should assume it is true.
We are no longer a nation of laws. Jesus Christ, I think most people think we have too damn many laws.
Seems to me you are a good example of what it means to judge without any judgment at all. You have all the answers and none of the reasoning to support your illogical positions it seems to me.
thats easy to answer. democrats will support a nominee that empathises with a cause they believe in, same with the republicans.
the only real balance the court can have is in having a group of justices with different views that hopefully result in 'justice' in regards to interpreting the constitution.
even if you or i dont agree with the empathy or views of a particular justice, the fact remains that the court needs to be populated with those that agree with different points of view. Your not goign to find one person that can really empathise with every group equally, thats just not going to happen.
In a perfect world, the supreme court should be a body that rules based on the constitution alone and is free from any external biases. Unfortunately that is impossible, so the next best thing is to fill the court with a mix of biases that hopefully cancel each other out. All we can hope for are justices with sound reasoning skills and the knowledge of the laws and constitution. After that, we are at the mercy (depending on your point of view) of personal views that justice uses to formulate decisions
Jaskalas
Lifer
- Jun 23, 2004
- 36,295
- 10,597
- 136
Moonbeam,
That you do not understand the relevance of empathy, a person?s whim, overriding the law makes me question whether you read your own OP, topic or summary. Personally attacking me does not make up for your befuddlement. Perhaps you can follow what I am saying if I quote this:
That you think a person?s whim is the only way to insure justice, is in itself truly frightening. Ruling as such would erase all laws by rendering them meaningless. Would you argue in favor of a Judge who is empathic to a President breaking the Bill of Rights?
I would always suggest the Judge reads the law. Would you suggest otherwise, that they judge based on feelings or personal agendas?
Justice should be blind, to have it any other way would erase the laws and destroy the nation. Yes, I will make that assertion no matter how much you disagree or demand I explain why. It should be self evident what would happen if you could abolish the constitution on a whim.
That you do not understand the relevance of empathy, a person?s whim, overriding the law makes me question whether you read your own OP, topic or summary. Personally attacking me does not make up for your befuddlement. Perhaps you can follow what I am saying if I quote this:
That you think a person?s whim is the only way to insure justice, is in itself truly frightening. Ruling as such would erase all laws by rendering them meaningless. Would you argue in favor of a Judge who is empathic to a President breaking the Bill of Rights?
I would always suggest the Judge reads the law. Would you suggest otherwise, that they judge based on feelings or personal agendas?
Justice should be blind, to have it any other way would erase the laws and destroy the nation. Yes, I will make that assertion no matter how much you disagree or demand I explain why. It should be self evident what would happen if you could abolish the constitution on a whim.
Not true. For example, if I asked, 'Moonie, when did you leave the Nazi Party?', that implies you joined it in the first place. One can't quit a group if one hasn't joined it first. N yusef implied I opposed Brown with no evidence to that effect. If he didn't want to be a troll, all he had to do was ask "What are your thoughts on Brown?" See, it's not hard to ask a simple question without being a wanker about it.
I don't see Brown as 'creating new rights' but merely enforcing existing ones as found within the 14th and 15th Amendments. If blacks were barred from the 'white' school for no reason other than they were black, that's clearly unconstitutional. It's hardly a stretch.
I understand what you are saying, justice can be fleeting in a botched case, or the small percent of cases that may require the judge "empathize". Empathy is antithetical to judgment rather than a necessary component of it. How can you judge what you can't imagine? Even Sam Alito understood that when he was a nominee. How can her "empathy" views possibly be distinguished from what Sam Alito said when he was confirmed?
Those who are concerned that a judge would consider empathy as a factor in the decision making process seem to have the view that all law is a rigid and immutable object. They are the type of judges that support "originalism" as if the law was totally pure, unchanging and that nothing has changed in the last 200 years.
We need to retire the meme that judges, especially appellate judges, should just "impartially apply the law?" Believe me, judges want applying the law to be a simple process because it makes their life easier and doesn't get their decisions review by higher courts. But guess what? It's often not that easy. In fact, the very reason that cases ascend to the appellate levels is because they defy a simple application of the law.
A quick example from my own practice. In planning and zoning decisions my state's supreme court has ruled that board members aren't allowed to exercise their own judgment in the face of expert testimony on a technically complex manner. Yet, they've also ruled that when it comes to matters involving public health, safety, and welfare the court should defer to board's decisions. I have a case right now that directly implicates both issues. Tell me, please, how is a court supposed to impartially apply the law in this case where the law is contradictory? Further, inherent in any decision the court makes is a policy determination. Decide one way and you are favoring developers who buy an expert, decide the other way and boards can do whatever they want and hide behind health, safety, and welfare. Well, you say, the court could craft a new standard that tries to strike a balance between both sides. But isn't that -gasp- "legislating from the bench?"
I could be wrong, but I don't think Moonbeam is saying that empathy should be the basis for judges rendering rulings. Empathy is required when those 2 - 5 % of cases read cannot be ruled upon under the constitution or strict rule of law. Read Judge Alito's conformation hearings for some clarity on empathy.
The degree of constitutional literalism exhibited by some would dictate that, in order to fulfill his oath to "protect, preserve and defend the Constitution," the president would be required personally to stand guard 24/7 at the National Archives to protect the document itself. Likewise, anyone familiar with the second amendment controversies, inter alia, would admit that often the placement of a comma in a document makes it subject to diverse interpretations. So I am astonished at the concept that an ideal Supreme Court justice is required to be a legal robot, a mere grammarian, divorced from any external experience or application of theory. We have recently seen the results of this concept when applied to economics.
I dont think a justice needs to be a legal robot. for one, thats impossible, but also becuase there are those few instances where thier ideology might come into play. But to be honest, if we are going to say that these justices need empathy, then we are going to have to admit that it will be tough for that to result in a truley 'fair' system. but maybe fair means that everyone has their opinion voiced via a justice and not striving for a singular result.
So I see this getting more and more obvious in supreme court justices going forward. Justices will be(are) selected becuase of the group they empathise with (along with the other usual qualifications). I just dont know if thats the goal we should have when selecting a justice. These people are given a great responsibility that they have to deal with for life. thats a long time that can pass where a justice's views might not be in popular favor 10 or 20 years down the road.
n yusef
Platinum Member
- Feb 20, 2005
- 2,158
- 1
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I would like to direct you to the dictionary. Empathy is the ability to put oneself in another's shoes. To "empathize" with only one group of people, is to not empathize at all.
yeah....thanks.
but my point is that we are appointing judges based on how they empathize with a certain group. What is a big point for the current nominee? The fact that she can empathize with a group's issues, not becuase she can empathize with everyone. Thats what everyone is talking about right?
But your right, you cant just empathize with one group, Im just saying thats what some people are trying to claim, when that is not the goal at all. the goal is appointing those that can empathize with any man or woman, regardless of race, creed, economic or social standing.
but i was also wrong in hwo i used the word for the line you pointed out. I should have said justices are sometimes selected becuase they have views that are in line with one group or another (i.e. democrat or republican talking points). that has nothing to do with empathy, sorry about that.
n yusef
Platinum Member
- Feb 20, 2005
- 2,158
- 1
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Sotomayor's "empathy" is being spun as a code word for "hates white men," and that's silly. Empathy is one of the greatest human characteristics; it should be called upon for any decision that will effect other people. This does not mean that rationality should be abandoned for emotions, just that a jurist ought to consider the perspectives of everyone who will be effected by her opinions. I would think that no one can disagree with this. Sotomayor never claimed to empathize with only certain people, and any characterization to that effect is baseless.
Yes, your right, she never said she could only empathise with one group.
I find it very difficult to find out how we can gauge a person's level of true empathy. If we throw out the idea that only someone of a certain race, etc can empathise with that group, then that should also mean that we have to come up with some scale. Who knows how you do that. Its still a subjective opinion. Even if you look at her decisions, people will undoubtedly make a conclusion based on thier own views. I just dont get the arguement, why are we even talking about it, its such an intangible quality.
Man, I dont see how any of this gets done lol.
What "group" are you talking about. In the overwhelming number of Court decisions, you read the statute. You look at the case law, and most of the time the law is pretty clear - 95% to 98% of the time. When the law is clear, the judges role is simply to faithfully apply it, as they should. Empathy comes into play in that 2 - 5% of difficult cases in which the law, or how to apply the law to a particular set of facts, is not clear.
Some excerpts from Sam Alito's confirmation hearings from Alito himself:
"when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position."
"And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
"When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."
These are all examples of putting oneself in another persons shoes. The point is that the people who are attacking Sotomayor are claiming that it's always wrong to allow considerations of fairness and empathy to affect a judicial decision.
At the same time, they're criticizing her decision in Ricci with the ultimate appeal to empathy: that what happened to the firefighters is "unfair."
You can't simultaneously (a) demand that empathy play no role in judicial decision-making and (b) protest a judicial decision on the grounds of "fairness."
I'm really not understanding the howling over Sotomayor especially from the Right.
We have a Democrat as president and pretty solid control of both Houses. When a vacancy on the court opens up the sitting President gets to pick his guy/gal and naturally favors someone who tends to side with that President's philosophies.
The Right has gotten Scalia and Alito and Thomas. That's how it works. That is how these things play out and have always. Now it is the other sides turn to get an appointment and frankly they are not even replacing a Conservative so the character of the court will not even change much (if at all).
The Right should be thrilled that Sotomayor is nowhere near an Anti-Scalia. Nevertheless they are howling like a scalded cat over a provably moderate judge who has more bench experience than anyone else nominated to the SCOTUS in what, a hundred years?
It's just theater really. The right has a large constituency that cares about keeping the "enemy" off the Court, so to keep them happy, they have to at least make a show of trying to stop Obama's nomination. I'm sure most Republican Senators realize its a lost cause, if for no other reason then even if they did sink Sotomayor, the end result would be Obama nominating someone who was just as left leaning, (in their minds) and the end result being the same. We saw the same thing play out with Alito, Dems knew that trying to filibuster his nomination wasn't going to change the final result, but they can go back to their constituencies and say they tried to do something.
When it comes to lefty-leaning judges Sotomayor is decidedly moderate. Just look at her judicial record. I heard a quote that on the Appellate bench she sided with the conservative justices there 95% of the time. Hardly a ringing endorsement of her true liberal colors.
Compare that to the conservatives who have appointed seven of the current nine SCOTUS justices. They gave us Scalia, Thomas, Roberts and Alito. Souter should have been one of theirs but they got a bit of a surprise there. Gnashing of teeth over such diehard conservatives is a bit more than just a pro-forma, "we don't like them because the other side nominated them."
If there were balance in the world, and considering a democrat controlled Senate, then a polar opposite of Scalia is in order and not some moderate. Conservatives, considering who the President is and the current Senate makeup, should be downright relieved. And as noted she will be replacing a liberal justice so the court balance isn't even really altered.
We have a Democrat as president and pretty solid control of both Houses. When a vacancy on the court opens up the sitting President gets to pick his guy/gal and naturally favors someone who tends to side with that President's philosophies.
The Right has gotten Scalia and Alito and Thomas. That's how it works. That is how these things play out and have always. Now it is the other sides turn to get an appointment and frankly they are not even replacing a Conservative so the character of the court will not even change much (if at all).
The Right should be thrilled that Sotomayor is nowhere near an Anti-Scalia. Nevertheless they are howling like a scalded cat over a provably moderate judge who has more bench experience than anyone else nominated to the SCOTUS in what, a hundred years?
It's just theater really. The right has a large constituency that cares about keeping the "enemy" off the Court, so to keep them happy, they have to at least make a show of trying to stop Obama's nomination. I'm sure most Republican Senators realize its a lost cause, if for no other reason then even if they did sink Sotomayor, the end result would be Obama nominating someone who was just as left leaning, (in their minds) and the end result being the same. We saw the same thing play out with Alito, Dems knew that trying to filibuster his nomination wasn't going to change the final result, but they can go back to their constituencies and say they tried to do something.
When it comes to lefty-leaning judges Sotomayor is decidedly moderate. Just look at her judicial record. I heard a quote that on the Appellate bench she sided with the conservative justices there 95% of the time. Hardly a ringing endorsement of her true liberal colors.
Compare that to the conservatives who have appointed seven of the current nine SCOTUS justices. They gave us Scalia, Thomas, Roberts and Alito. Souter should have been one of theirs but they got a bit of a surprise there. Gnashing of teeth over such diehard conservatives is a bit more than just a pro-forma, "we don't like them because the other side nominated them."
If there were balance in the world, and considering a democrat controlled Senate, then a polar opposite of Scalia is in order and not some moderate. Conservatives, considering who the President is and the current Senate makeup, should be downright relieved. And as noted she will be replacing a liberal justice so the court balance isn't even really altered.
The answer to your question is, politics, because the Republicans' strategy is to complain about pretty much anything Obama does to try to generate 'outrage'.
I agree with your points generally (but you left the quietly radical Roberts off the list), and your phrase about the Justices being viewed as mere grammarians was good.
This 'outrage' isn't really particularly large and lets face it, the Republicans would find a reason to attack Obama's nominee no matter who they were. Like I said before, expect token opposition followed by 70+ votes in the Senate for her.
Somin debating with Chemerinsky
Brief debate between two law professors. Both make strong points with Somin being against the use of empathy and Chemerinsky being for empathy.
Brief debate between two law professors. Both make strong points with Somin being against the use of empathy and Chemerinsky being for empathy.
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