Empathy = ovary?
May 21, 2009 11:32 AM   Subscribe

When President Obama says he's looking for a judge with the "quality of empathy" to replace retiring Supreme Court Justice David Souter, is it code for a female judge? In the two decades since Bertha Wilson famously asked Will Women Judges Really Make A Difference? (mms), the answer has come back as a resounding yes (studies: 1 (pdf), 2) -- and no (studies: 1 (pdf), 2). But either way, is choosing judges based on supposed gender qualities ever a good idea?
posted by hayvac (64 comments total) 3 users marked this as a favorite

 
Or is "quality of empathy" code for "quality of empathy, which females may happen to be more likely to possess?"
posted by cmoj at 11:37 AM on May 21, 2009


Does Obama speak in dog whistles?
posted by Astro Zombie at 11:37 AM on May 21, 2009 [1 favorite]


Empathy = ovary?

This bit failed for Letterman.
posted by aswego at 11:38 AM on May 21, 2009 [2 favorites]


Isn't "quality of empathy" a codeword for "has their priorities in the right place re: the rights of women and minorities"? For example, the recent Supreme Court case where a teenager was strip-searched because she was suspected of hiding a tablet of IB Prophin. A "measure of empathy" might recognize that a teenager should have a certain right to privacy, even in a situation where they are violating a school rule.
posted by muddgirl at 11:42 AM on May 21, 2009 [6 favorites]


The question at the end pretty much reduces to whatever your default stance is on affirmative action and quotas. Yes, this is a high-powered special case of political importance. It's still the same old argument, no matter how you might feel about that argument.
posted by adipocere at 11:45 AM on May 21, 2009


Empathy and ovary
Live together in perfect harmony
Side by side on the Supreme Court
Oh lord
Why can't we

posted by Faint of Butt at 11:46 AM on May 21, 2009 [10 favorites]


The question at the end pretty much reduces to whatever your default stance is on affirmative action and quotas.

The difference in my opinion is that "affirmative action" usually connotes hiring to improve the lot of the group you're hiring from. In the case of judges, the argument is more about women judges doing the job in a new, arguably better way.
posted by hayvac at 11:54 AM on May 21, 2009


women judges doing the job in a new, arguably better way.

Yeah. Furthermore, I don't think Obama was trying to argue that women are more "empathetic" or emotional than men are - if you look at the rumored short lists, I would not describe those women as soft or empathic. It's the idea that ingroups (ie, white men) can only really identify with the needs of the ingroup, while outgroups of various sorts can identify with both the ingroup (by virtue of growing up where Ingroup = dominant culture) and with their own outgroup. A more diverse court would cover more outgroups while still ensuring coverage of the ingroup.
posted by muddgirl at 12:03 PM on May 21, 2009 [1 favorite]


Is it really that horrible to suggest that having at least two women on the Supreme Court is a worthy goal in and of itself? Are those who say, "Pick the best qualified!" arguing that the best qualified is a man by default? I'd answer that with a resounding "Yes!" If there is more than one qualified candidate, and Obama makes the deliberate choice to advance the woman rather than the man, what harm does this do? I really don't understand the thinking. Whether or not women rule differently from men because of their gender, they are sorely underrepresented in our government.

Or is this a reaction to Justice Thomas's reputation as Scalia's lapdog, which in some minds perhaps confirms the fear that only white men can truly be great Justices?
posted by dellsolace at 12:03 PM on May 21, 2009 [2 favorites]


The best judge on television is Marilyn Milian. Although, for sheer entertainment, give me Judge Judy, Judge Joe Brown, and Judge Greg Mathis, who is arguably the worst judge on teevee. Seriously, if Mathis thinks he's caught you in a lie, it's all over, even if you just tripped over your words. But he has the best Baliff, Doyle. My girlfriend once wrote a love letter to Doyle. She cut a bell-shape out of paper and wrote rhymed couplets about how much she adored him, and she worked in a bell theme, somehow. She must have got the address right, because the letter was returned to us, or, rather, to a PO Box I was renting for a blog I did on cocktails. One of the other guys from the blog, Steve, was the one to get the letter, and, of course, he didn't know Coco had written the letter, and couldn't figure out how me had wound up getting a rhyming love letter to the Baliff on Greg Mathis's show. He hung it from his refrigerator. I still regret telling him who wrote it, because it sort of ruined the fun for him.

Wow. This weed is amazing.

Anyway, what were we talking about?
posted by Astro Zombie at 12:06 PM on May 21, 2009 [9 favorites]


I don't care whether or not a Supreme Court justice has "empathy". What I want a Supreme Court justice to have is knowledge of the Constitution and the strength of character to apply that knowledge regardless of what any given mob may want at any given time (even if I happen to be a member of one of those mobs - I make mistakes.)
posted by DWRoelands at 12:07 PM on May 21, 2009 [2 favorites]


I would have thought the "will he pick a WOMAN??" thing would have been more worthy of comment before there had been any women on the court. We've had women on the court for decades.

What's the big deal?

If the only remaining male judge were retiring I guess it might be shocking, but it's not like women are well represented in the court, even in recent history. Even if he appointed two or three women over his presidency, women would still be a tiny fraction of all the supreme court judges in our lifetimes, much less US history, so it's not like the court would be "feminized" or anything. If anything, we could say that the customary excess of testosterone might be diluted somewhat.
posted by edheil at 12:12 PM on May 21, 2009


"I don't care whether or not a Supreme Court justice has "empathy". What I want a Supreme Court justice to have is knowledge of the Constitution and the strength of character to apply that knowledge regardless of what any given mob may want at any given time (even if I happen to be a member of one of those mobs - I make mistakes.)"

Who says you have to pick one or the other? I'd rather have both.

The opposite of empathy is sociopathy.* I'd like my judges to be as non-sociopathic as possible, thank you very much, and there's no reason that is something you have to choose rather than them being good judges. As far as I can tell degree of empathy and capacity for jurisprudence are either orthogonal or positively correlated. If they were negatively correlated, that would for me call into question the value of the judicial as a human institution.

(*that is to say, sociopathy appears to be a congenital incapacity for empathy)
posted by edheil at 12:17 PM on May 21, 2009 [4 favorites]


Is it written that they must be lawyers? For the sake of outside perspective, why not give a slot to, say, a novelist, an historian, a classicist - someone to whom the Legal Giants can explain the finer points of The Law, but who might in turn offer perspectives that might not otherwise have occurred to them?
posted by IndigoJones at 12:17 PM on May 21, 2009


someone to whom the Legal Giants can explain the finer points of The Law

Err.. what?

The Supreme Court has a couple hundred years of jurisprudence that these justices are responsible for understanding, as well as a lot of circuit court and state supreme court decisions which help inform their decisions. Not to mention the necessity of having a fairly deep understanding of American history for the past 300 years or so, and perhaps even some English history from 300-500 years ago, as well as how all that impacts the laws that we have today.

Why not just suggest we let a hairdresser pilot the space shuttle, while everyone else explains the finer points of the endeavor?

It's wildly unfortunate that the candidates are reduced to a one or two question survey, because the job of Supreme Court justice is at least as important as the job of president, and easily more important than the job of House representative, but those jobs require election campaigns running months.
posted by TypographicalError at 12:26 PM on May 21, 2009 [2 favorites]


When you said X I know you really meant Y and I am outraged that you said Y.
posted by Free word order! at 12:27 PM on May 21, 2009 [1 favorite]


What's wrong with a gay space shuttle pilot?
posted by 445supermag at 12:33 PM on May 21, 2009


445supermag: "What's wrong with a gay space shuttle pilot?"

I feel like there's a shuttlecock joke here, but I'm not that witty.
posted by TypographicalError at 12:34 PM on May 21, 2009


I don't care whether or not a Supreme Court justice has "empathy".

Yes, you do. You just don't know it.

Empathy, in the judicial sense, isn't about being touchy-feely and big-hearted. It's about recognizing one's limits as a judge to understand the perspectives of everyone affected by the outcome and how that might tie into the question of subjective harms suffered. That's important.

Non-lawyers sometimes think the law is a hard-and-fast set of rules, as evidenced by your "he has to know the Constitution and apply it regardless of the outcome" opinion. But it isn't - the Constitution, as per most statutes, is at best a fairly firm guideline. (And very often not that firm, as differing interpretations of the Second Amendment have been demonstrating for, oh, your entire life.) Legal argument is ultimately about fairness, and reasonableness, and quite often it's about making it up as you go along. Whenever someone refers to a legal test created by a case or a groundbreaking precedent, that's law being made by justices. It happens all the time so you need judges who really A) know the law and B) know how to work with it for the best possible outcome for all parties.

That's why it's important to have a judge who can understand when a given outcome or legal process has the potential to be dramatically unfair to a given party.
posted by mightygodking at 12:42 PM on May 21, 2009 [12 favorites]


What's the big deal? ... Even if he appointed two or three women over his presidency, women would still be a tiny fraction of all the supreme court judges in our lifetimes, much less US history...

But that's not what matters. What matters is the composition of the Supreme Court at any one time. If he appoints three women (and Ginsburg stays on), the Court will be 4 women to 5 men -- about half and half, a big difference from now. If Ginsburg leaves, then Obama's appointments can make the difference between an all-male court and a reasonably balanced court (3 women to 6 men).

Now, if you want to argue that gender balance on a court simply isn't very important, then fine, make that argument directly. But unless you take that extreme stance, Obama's choices are going to matter.
posted by Jaltcoh at 12:46 PM on May 21, 2009


Is it written that they must be lawyers? For the sake of outside perspective, why not give a slot to, say, a novelist, an historian, a classicist - someone to whom the Legal Giants can explain the finer points of The Law, but who might in turn offer perspectives that might not otherwise have occurred to them?

Have you seen how bad lawyers fuck up the law? Have you seen how bad lay people fuck up the law? For every true stinker of a court decision made by a federal judge with a legal background, there are at least 5 peoplei in other lines of work that think "innocent until proven guilty" is a type of tort claim. I'll pass on this idea.
posted by Inspector.Gadget at 12:48 PM on May 21, 2009 [1 favorite]


Obama shouldn't choose a woman. He shouldn't get to choose anyone. We should be bringing Cheney in to make this decision for our President. Cheney uses the media to tell him what to do, anyway.
posted by Blazecock Pileon at 12:53 PM on May 21, 2009


"empathy" is a just a rhetorical smokescreen. I defy you to describe a method for determining which judges have the most empathy that does not boil down to "I agree with their decisions."

Show me a ruling in which you could not claim the judge was showing "empathy" for someone on the winning side.

What if I claim I have more empathy than you? That I understand what other people are *really* feeling better than you do?

I think what Obama should come out and say is that he wants a judge who recognizes that the rich and powerful have many ways of influencing the law, shielding themselves from the power of the law, etc. But for women, the poor, and minorities, the judicial system is often the only recourse they have when the letter of the law seems to violate some more basic constitutional right. That impartiality needs to be balanced against the court's role as protector of the minority from the majority.

Then we could have a genuine argument about whether these are, in fact, the right criteria for choosing judges for the Supreme Court, and if so, which judges best exemplify these values.
posted by straight at 12:59 PM on May 21, 2009


Is it written that they must be lawyers?

No. But, even though it is not required, all Supreme Court justices to date have been lawyers. Not all have had prior judicial experience, though. Earl Warren, for example, had never before been a judge.
posted by The World Famous at 1:00 PM on May 21, 2009


What's wrong with a gay space shuttle pilot?

Joystick abuse.
posted by Brandon Blatcher at 1:01 PM on May 21, 2009


The whole idea that there is a single "best qualified" supreme court judge is idiotic. I think men can be empathetic, but it's clear that female Supreme court judges have viewed some issues differently. There is only one female judge on the court and she's pretty old.
posted by delmoi at 1:04 PM on May 21, 2009


Empathy, in the judicial sense, isn't about being touchy-feely and big-hearted. It's about recognizing one's limits as a judge to understand the perspectives of everyone affected by the outcome and how that might tie into the question of subjective harms suffered. That's important.

Hear, hear.

I read Obama's statement and I cringe at the fact that any coverage focuses on the question "Is this code for 'woman'?" instead of something like mightygodking's interpretation. Although it's laughably easy to see how if you've got a conservative worldview (you know, where women are the empathetic sex, and men are... I don't know, Vulcans with normal ears or something, and where conservatives speak in dog whistles all the time) you might not be intellectually capable of seeing it in any other way. Anybody not operating under those handicaps, though, might do well to take a little bit of shame in deciding to make an interest ball-game narrative out of this instead of something more philosophical.

Or, maybe I'm wrong and it really is all about identity politics and dog whistles, but I sure don't want to believe it.

(And this isn't to say that I don't think a woman couldn't bring greater degree of empathy to the court in general. While I'm not at fan of identity politics, and I don't think a man is inherently constrained in empathetic capacity any more than a woman is... sometimes, ease of identification matters on a practical level, and sometimes greater diversity really adds up to a broader perspective.)
posted by namespan at 1:07 PM on May 21, 2009 [2 favorites]


What's wrong with a gay space shuttle pilot?

NASA probably doesn't want to convey the message to the space aliens that all humans like being sucked up and then probed.

Plus, NASA gets its pilots from the military, and there's that whole rational, scientific "don't ask, don't tell" thing that makes so much sense.
posted by Blazecock Pileon at 1:12 PM on May 21, 2009


I think the "best qualified" argument is a red herring, at best. Leaving aside the fact that so many of the people advancing that argument seem to have an unspoken "and we all know the best qualified are white men" conclusion, its still spurious.

We have a population of 555,770 lawyers in America, around 30% are women (mainly due to historic factors, currently women account for remarkably close to 50% of law school graduates).

While there is, theoretically, a single "best person" for the job, the reality is that you're more likely to be looking at a pool of several people who are all more or less equally suited for the job, and you can't really differentiate which of that relatively large group are objectively better than any other members of the group.

Out of that pool surely there's not merely one or two, but hundreds of qualified women. Once you've got a pool of people who are able to do the job well, the question becomes one of "in addition to doing the job well, what other benefits might there be for these candidates".

Given that women account for 50.84% of the US population, while the current SCOTUS has a female population of 11%, I'd say that, simply in the interests of redressing problems caused by history, it'd be worthwhile for Obama to limit his picks from the pool of qualified candidates to women until they account for at least 4/9 of the SCOTUS, and possibly 5/9. All things being equal we should have between 4 and 5 women sitting on the SCOTUS.

There is value in actually having a body that is representative of America, and while men can certainly be aware of the issues facing women, there's value (I'd argue) in having people who actually are women on the Court.

And, of course, not to say that Obama shouldn't try for the best he can get, but really the bar isn't set all that high. Thomas, Roberts, Scalia, and Alito hardly strike me as the cream of the crop, unless you define "crop" as "graduates of Liberty University", and "cream" as "scum".

And finally, am I the only one who is bloody tired of the President being treated as some sort of obscure oracle who's every utterance and gesture must be raked over seeking deeper, secret, meaning? Maybe, just maybe, he meant he wanted a judge with empathy (as opposed to sociopaths like Thomas or Scalia), and there's no hidden meaning for the oracular interpreters to seek after.
posted by sotonohito at 1:18 PM on May 21, 2009 [4 favorites]


and sometimes greater diversity really adds up to a broader perspective.

Try "almost always."

Look, the whining about the idea that Obama might be pre-emptively disqualifying white males? Really needs to stop. Like, right now. 98 percent of all Supreme Court justices have been old white guys. A country's legal and political institutions should, to some extent, mirror its populace; if it doesn't, members of subgroups get the (entirely valid) idea that law and politics aren't "for them," and the entire system just degrades.

Obama should nominate a woman to replace Souter. Then he should replace a woman to replace whoever retires next (probably Ginsburg or Stevens). Then he should replace a woman to replace whoever retires after that. There are no shortage of talented and female potential nominees to the Supreme Court who would all be stunning in the job, and there are no UberJustices-In-The-Making who are white males who would be done a disservice by being passed over on the basis of their race and gender.

There is literally no reason to nominate another white guy.
posted by mightygodking at 1:21 PM on May 21, 2009 [7 favorites]


I came in here to make this joke. Now I don't have anything to contribute other than this prediction:

The next Supreme Court Justice of the USA will be a mammal.
posted by Mister_A at 1:26 PM on May 21, 2009


The next Supreme Court Justice of the USA will be a mammal.

Good. That'll help balance Scalia's tentacles.
posted by rokusan at 1:35 PM on May 21, 2009 [2 favorites]


RNC Chairman Michael Steele had an eloquent response to this. "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind. Craziness!" I am not making this up.
posted by desjardins at 1:52 PM on May 21, 2009 [2 favorites]


"Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind. Craziness!"

He's just being street. It's the FreshGOP™.
posted by Blazecock Pileon at 1:56 PM on May 21, 2009 [1 favorite]


Scalia is a great example of why some crazy folks think that lizard-people secretly control our government. His name is a blatant dewclawing of the two-recessed-slits-in-the-face at us: Scale-ia.
posted by adipocere at 1:57 PM on May 21, 2009 [1 favorite]


Empathy, in the judicial sense, isn't about being touchy-feely and big-hearted. It's about recognizing one's limits as a judge to understand the perspectives of everyone affected by the outcome and how that might tie into the question of subjective harms suffered. That's important.

No. It's not a correct definition. And it is not important. The Court should not be subjective at all or be concerned with subjective harms. It's not its function.

The call for empathy is a call for judges who believe in and want to advance undefined notions of social justice. But social justice is not related in any way to legal justice. And calls for social justice should be directed to the legislature, not the Courts. Because that is not the "justice" they are there to be dispensing.

Of course, it perhaps would be too obvious that those who want to judges to rule on social justice only want that when they like the subjective social views of that judge. I'm certain you would not want certain other judges dispensing their beliefs about social justice or empathy.

The only proper way that avoids tyranny is to have judges dispense with their subjective emotions and beliefs and apply the law as it is and leave it to the legislature to pass the laws necessary to enforce social justice.

It happens all the time so you need judges who really A) know the law and B) know how to work with it for the best possible outcome for all parties.

A judge's job is not to "work the law" for the "best possible outcome." That is not the province of the jurist. A judge is only suppose to adjudicaate cases neutrally. Legal principles should be neutrally derived, neutrally defined, and neutrally applied. If that results in the worst possible outcome for all parties, then so be it. Courts sitting at law are there to apply the law. Courts sitting in equity are there to "fair." But those courts are rare. The vast majority courts are courts at law, and judges of those Courts have no business attempting to "work" the law in order to achieve what they subjectively believe to be "the best possible outcome."

Aristotle defined law as reason without passion. Cicero said that law is the mind of god. Legal realist Jerome Frank said that the outcome of adjudication may well depend upon what a judge has had for breakfast.

These are extremes, but somewhere in between is a workable definition of what law is, and it should not include what a judge "feels" about a circumstance, just as it should not be based on what the judge has had for breakfast. That it may occur that way does not mean that it should be that way. It should not depend at all on the subjective beliefs of the judge because then you are ceding your democratic perogative to the tyranny of one robed-king.

A "measure of empathy" might recognize that a teenager should have a certain right to privacy, even in a situation where they are violating a school rule.


So many users on this website need a 3rd grade-level civics lesson, like this one.

You want someone to decide that a young girl has a right to privacy? Talk to the Legislature. It's not the Court's position to determine rights and give them substantive content.



________
I would highly recommend the book Democracy and Distrust by Dean John Hart Ely to many of the people commenting in this thread. It outlines the only legally principled view of how to address the advancement of the social justice you seek.
posted by dios at 2:10 PM on May 21, 2009 [3 favorites]


Have you seen how bad lawyers fuck up the law? Have you seen how bad lay people fuck up the law? For every true stinker of a court decision made by a federal judge with a legal background, there are at least 5 peoplei in other lines of work that think "innocent until proven guilty" is a type of tort claim.

Yes to the first, which is one reason I suggested it. As to lay people, I did just say that the other eight justices would be on hand to point out these legal niceties. Which should cut down a bit on the up fuckery.

I'm not advocating this for all courts, by the way, just the top one. I note also that the congress, which actually writes the laws*, is not comprised solely of lawyers.

*(Yeah, yeah, I know, it's really lobbyists and staffers- but ditto the SC, where it's really clerks)
posted by IndigoJones at 2:14 PM on May 21, 2009


I did just say that the other eight justices would be on hand to point out these legal niceties.

We need nine functioning justices, not eight. Your point about other perspectives is well taken, but in practicality means that such people ought to be elected to the legislature.
posted by Inspector.Gadget at 2:17 PM on May 21, 2009


dios, this isn't meant as a troll at all, I'm genuinely curious, having just read the case myself in ConLaw... what was your take on Scalia's opinion in Heller?
posted by saladin at 2:18 PM on May 21, 2009


What's bizarre to me is that anyone would think that a judge *without* empathy-- AKA a sociopath-- would be a good idea.

If you have any understanding of neuroscience at all, you'll know that emotion and cognition are not distinct-- that in fact, without emotion, no one could make any decisions because emotion tells you what's "good" and "bad" and if one thing is not better than another, how could you maky any choices? A real Vulcan would be similar to people with severe frontal lobe damage-- unable to decide whether or not to get out of bed. And, possibly, if he did so, sociopathic.

Empathy is the foundation of the moral values the right likes to go on about-- you can't have the "golden rule" without empathy. Empathy is about perspective-taking-- so it doesn't necessarily lean right or left: if you empathize with the crime victim, you may be quite harsh on criminals, for example.

It is true that in most measures of empathy, women in general do tend to be more empathetic than men. But that's statistical-- there are plenty of unempathetic women and empathetic men.

And it's not a codeword for Obama-- it is something he has considered and written about and spoken about for a long time.

Given that people are more likely to empathize accurately with people they are more similar to, it makes sense to appoint a woman, given their underrepresentation on the court.

And you know what? Obama won! The dems have a majority in both houses of congress. The republicans are just going to have to deal with it the way the dems have done for years. If they want to try to scare people talking about how Obama might appoint the left wing equivalent of Scalia, what's their argument against that? That they shouldn't have put Scalia in themselves?

They lost. If they don't like what being on the bottom feels like, they should learn some empathy!
posted by Maias at 2:18 PM on May 21, 2009 [1 favorite]


Sorry, should have provided a link: DC v. Heller. [Warning: PDF]
posted by saladin at 2:20 PM on May 21, 2009


So many users on this website need a 3rd grade-level civics lesson, like this one.

I apologize, oh wise one, only for casually using vocabulary in an internet discussion.
posted by muddgirl at 2:24 PM on May 21, 2009


dios While I agree, in principle, I can't help but observe that what you describe has never existed, and certainly doesn't exist under Thomas/Scalia/Alito/Roberts.

Given that robot justices don't exist, and the terrible foursome are ruling based on seances to discover that the "original intent" of the Founders perfectly matches their own religious superstitions, I'd like to see someone who isn't a sociopath appointed to the Court.

The courts don't exist to rubberstamp what the legislature says, sometimes the legislature passes laws that are unconstitutional and we need a court that will say so, even if it offends delicate Catholic and other fanatic right wing sensibilities. Absent Loving v Virgina, one of those textbook examples of the "judicial activism" the right so hates [1], I doubt I'd have been able to marry my wife back in 2004.

[1] I'm puzzled by the phrase myself, as near as I can tell it refers to any judge who actually applies the lofty and often broad and sweeping freedoms outlined in various Constitutions (state, federal) to a despised and discriminated against minority.
posted by sotonohito at 2:27 PM on May 21, 2009 [3 favorites]


dios, this isn't meant as a troll at all, I'm genuinely curious, having just read the case myself in ConLaw... what was your take on Scalia's opinion in Heller?
posted by saladin at 4:18 PM on May 21


Scalia wrote for the majority in that case; You can read my general thoughts on that on the Metafilter thread (1, 2, 3). I also commented in the thread about the oral argument (and called the decision correctly) here. If you would like anything further, let me know.

What's bizarre to me is that anyone would think that a judge *without* empathy-- AKA a sociopath-- would be a good idea.

It is not the case that a judge should not be capable of empathy like a sociopath. That's a red herring.

The point is that they are not supposed to rule upon cases on the basis of their subjective emotions and belief. In executing their function, they are supposed to do so dispassionately and neutrally.

If Judges ruled based on emotions, then concepts like statutes of limitations would be meaningless because people would always request empathy for their mistake and claims.

Ruling based on empathy is incongruous with the rule of law and our Madisonian Constitutional structure.
posted by dios at 2:31 PM on May 21, 2009


And you know what? Obama won! The dems have a majority in both houses of congress. The republicans are just going to have to deal with it the way the dems have done for years.

This is a terrible description of how one ought to go about appointing judges, regardless of which group occupies which position.
posted by Inspector.Gadget at 2:32 PM on May 21, 2009


Thomas, Roberts, Scalia, and Alito hardly strike me as the cream of the crop, unless you define "crop" as "graduates of Liberty University", and "cream" as "scum".

The four people you mention have six Ivy League degrees between them. Also, I don't think deciding cases in ways that conflict with Democratic policy objectives makes a judge "scum."
posted by Bizurke at 2:35 PM on May 21, 2009 [1 favorite]


And you know what? Obama won! The dems have a majority in both houses of congress. The republicans are just going to have to deal with it the way the dems have done for years. If they want to try to scare people talking about how Obama might appoint the left wing equivalent of Scalia, what's their argument against that? That they shouldn't have put Scalia in themselves?

I think that was Dios's point, though. The courts (and in this case, USSC), shouldn't be a political branch or a means for the parties to have control over a 3rd branch of the government. Granted, it is arguable the USSC is already at that point so why not continue the trend, but I tend to agree with Dios that it shouldn't be about politics, and rather about enforcing law derived from elsewhere such as the legislature.
posted by jmd82 at 2:40 PM on May 21, 2009


sotonohito, I'll respond to your post based on the points I hope you are intending to make and ignore the petty partisan sniping parts which cloud these issues.

I can't help but observe that what you describe has never existed.

Perfect justice has never existed. Neither has universal peace. So should we abandon those pursuits, too? What I am describing is the goal of judges and appointing the judiciary. We should aim to the lofty heights and criticize where they are not met.

The courts don't exist to rubberstamp what the legislature says, sometimes the legislature passes laws that are unconstitutional

Which is, but of course, applying the law. Only in that case they are saying that the superior law (the Constitution) prohibits the inferior law (the statute). It is a process issue, not a substantive legal one. In every case where the Court has struck down the law as unconstitutional, the Legislature is free to go back and pass the law appropriately (by Amendment). And it is still the Legislature's preogative.

Absent Loving v Virgina, one of those textbook examples of the "judicial activism"... I doubt I'd have been able to marry my wife back in 2004.

Loving v. Virginia is not a "textbook example of judicial activism." But besides that point, you almost certainly would have been able to marry your wife back in 2004, unless you honestly believe that society itself would have been incapable of seating legislatures allowing that. The vast majority of civil rights have been legislative mandates, not judicial proclamations.
posted by dios at 2:41 PM on May 21, 2009


dios - Yeah, sorry, I had read what you'd written in the original thread(s). My question is with specific respect to the judicial creation of rights that you're warning against upthread. Scalia's opinion in that case strikes me as just the sort of judicial rights-creation that you're worried about; specifically, the creation of a fairly potent right to bear arms predicated on self-defense, which he can only manage to read into the Constitution via a careful excision of the prefatory clause and a reliance on historical evidence (much of it post-Civil War, oddly enough) that's flimsy at best (his retort to Breyer's evidence on historical bans on weapons in city limits: "Well, violation only resulted in fines, so no big deal.").

Whether or not you agree that we should have a strong right to bear arms based on a broader right of self-defense, I think it's hard to argue that the Constitution unambiguously grants us that right in that manner (unlike many of the state constitutions drafted during that same time period, which explicitly included self-defense language in their right-to-bear-arms clauses). Instead, the Constitution clearly seems to grant the right to bear arms to prevent the imposition of tyrannical governmental authority, a right which Scalia seems to foreclose in the opinion, carefully denying that regular citizens could reasonably possess the kind of sophisticated major weaponry required to fight against the tyrannical influence of the modern U.S. military. In this way, the unambiguous right granted by the 2nd Amendment seems to have been flipped on its head by Heller, and replaced by a new right created by the court, but one that you seem to unequivocally support. I'm curious how you can reconcile this, because I'll be damned if I can.
posted by saladin at 3:00 PM on May 21, 2009


dios, this isn't meant as a troll at all, I'm genuinely curious, having just read the case myself in ConLaw... what was your take on Scalia's opinion in Heller?

I'm guessing that he thought it was just skippy.
posted by goethean at 3:04 PM on May 21, 2009


Inescapably, SCOTUS appointments are political statements. Whatever the candidates or dios themselves may feel about it, justices do "lean" one way or the other, and are commonly discussed in that light; potential decisions are gamed based on how each justice is likely to lean. Often quite accurately.

Perfect impartiality may be admirable, but it has never existed in human beings, and certainly not in the Supreme Court, now or ever. And given that we can only appoint justices based on the actual pool of human beings at hand, then we are forced to deal with the fact that they will have some amount of ideological bias in how they rule. And that emotions also play a part, however suppressed or denied.

"Empathy" bugs some people because we tend to define it as almost feeling the same emotions as another person. When all that is actually needed is the ability to see things from another person's (or group's) perspective and to perceive the effects of a decision on them, in terms of their legal rights--which doesn't necessarily mean ruling in their favor.
posted by emjaybee at 3:13 PM on May 21, 2009 [1 favorite]


the creation of a fairly potent right to bear arms predicated on self-defense, which he can only manage to read into the Constitution via a careful excision of the prefatory clause and a reliance on historical evidence (much of it post-Civil War, oddly enough) that's flimsy at best

saladin, I think you are misreading the opinion (or the 2nd Amendment).

The right to arms was not created. It quite clearly is in the Constitution. Thus, and to that extent, there was no creation of any right to bear arms.

Nor do they say the right exists only to the extent of self-defense. That is one reason, but not the only limitation.

I suppose you are going on about the militia clause issue. I explained it before:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The operative clause is the bolded section. It states that the right to bear arms shall not be infringed. That is the instruction to the government. The prior clause about the militia is merely a re-affirmation of the importance of the militia clause.

So if you wanted to unpack the clause, it could be read something like this:

Congress shall make no law infringing on the right of the people to keep and bear arms because, as we noted in Article I section 8, militias are very important to protect the country and to provide for the security of a free State.

That is a textual reading of the Constitution which is consistent with the text and the historical record. I fail to see how it even remotely constitutes "the creation of a new right." Please explain further what right you believe was created.

Coming back to your point that it seems judicial activism, I would disagree. It actually is a good case of judicial restraint because they made their opinion very limited to the narrow issue before the Court. They chose to not go further and make broad policy pronouncements or expand the holding. They answered a very narrow legal question with a textual reading of the Constitution. They ignored policy arguments.
posted by dios at 3:21 PM on May 21, 2009


President Bush tried to put a woman on the Supreme Court, and she "stood out as exceptionally well-suited to sit on the highest court of our nation." Since she was the best possible female candidate and was a flop, clearly women aren't up to Supreme Courtin'.
/sarcasm
posted by kirkaracha at 3:22 PM on May 21, 2009


Inescapably, SCOTUS appointments are political statements.

I like the hypocritical outrage over the idea — just the idea, not even a nomination — that Obama might appoint a woman, given how much outrage there was over Reagan not being able to appoint Robert Bork, which was just about as blunt a political statement as one can make.
posted by Blazecock Pileon at 3:24 PM on May 21, 2009


saladin: to follow-up on my last post. I do think that Breyer and Stevens made good points in their dissents. And they may very well be correct. But what makes that opinion a good opinion is that all sides were engaged in textual analysis and attempts at neutrally defining, deriving and applying the neutral principles. Ultimately they disagreed, but that's fine. They were both engaged in narrow and appropriate judicial analysis.

You give me a narrow holding based on a neutral reading of a statute or provision that is neutrally applied, and I'll think it is a good opinion. When either side departs from the text and application of interpretivist principles, then we get this problem. And that's the problem here. Using "empathy" is not an interpretivist principle. Nor is it a function of a Court.

And as the opinion rests, gun control is still possible. The narrow holding does not eliminate gun control laws; it just eliminates that particular law. So the Legislature still maintains its prerogative.
posted by dios at 3:31 PM on May 21, 2009


is choosing judges based on supposed gender qualities ever a good idea?

I don't know. Is it ever a good idea to put your decisions in the hands of nine old white guys?
posted by jonp72 at 3:36 PM on May 21, 2009


The vast majority of civil rights have been legislative mandates, not judicial proclamations.

I feel a bit uneasy arguing this with a lawyer but looking back over the civil rights movement this seems to be a bit of a hyperbole.

The 14th amendment was ratified on the July 9, 1868. In theory, the rights it gave everyone should have been recognized immediately but nobody in the southern states seemed to take notice until supreme court decisions like Shelley v. Kraemer, Brown v. Board of Education and Loving v. Virginia. In this context my understanding is that the Civil Rights Act (in theory) mopped up the rest of the bullshit Jim Crow laws on state books saving everyone the hassle of taking every law (which still wouldn't be repealed to the southern legislatures still hostile to the concept of equal rights) to the supreme court to be struck down.

If anything the enforcement of the letter and spirit of the 14th amendment by the judiciary gave us most of the civil rights everyone enjoys today. Although you could argue that the 14th amendment created the rights and the supreme court just enforced them. Which I suspect is the point you may be trying to make but people like me overlook.
posted by Talez at 4:01 PM on May 21, 2009 [1 favorite]


So, would people even blink if the language was hinting at another white dude? Would we be saying, "well is it ever a good idea to pick a judge based on gender" if Obama had said, the fellow I intend to select as next SCOTUS judge has to have XYZ qualities.

(incidentally the empathy qualification was only one small part of the package Obama is talking about so everyone who comes along and says I want a judge to know the law is just repeating what Obama has said, minus the empathy part)

Ru Paul for Chief Justice. Now, there's a choice we can all agree on eh?
posted by edgeways at 5:17 PM on May 21, 2009


If Ginsburg leaves, then Obama's appointments can make the difference between an all-male court and a reasonably balanced court (3 women to 6 men).

Ginsburg won't leave the Supreme Court. She'll be toe-tagged out of there.
posted by CountSpatula at 5:38 PM on May 21, 2009


The rather surreal debate that has spun off over Obama's brief comments on his desiderata for a Supreme Court justice would make one think that he had walked to the podium clutching a copy of Robin West's "Caring for Justice" and said "the sole criterion I have is empathy: thank you, that is all."

Just to remind you, here's some of the other criteria he laid out:

"I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.

I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time."

Oh, and while you're fretting about whether "empathy" will mean the end of the world as you know it, you might want to go to Amazon.com and search around in noted conservative legal scholar Richard Posner's book "The Problems of Jurisprudence" where he notes "empathy" on several occasions as part of the essential attributes of an ideal judge (at the same time insisting that a jurisprudence founded on empathy would be impractical). The claim that a judge requires empathy as well as many other attributes was an unremarkable commonplace on both the left and the right before Obama advanced it.
posted by yoink at 6:23 PM on May 21, 2009 [4 favorites]


"When President Obama says he's looking for a judge with the "quality of empathy" . . . is it code for a female judge?"

I'm willing to grant this one to Republicans, so long as they're willing to admit that when they say they support "state rights", it's code for supporting the Klan, lynchings, and overt racism.
posted by markkraft at 7:06 PM on May 21, 2009 [3 favorites]


Of course, sometimes when Republicans say they support "state's rights", they do it in such a way that the inference is nearly impossible not to draw... as opposed to Obama saying he wants an empathetic judge at a press conference.

Really, is the quality of emathy something we *don't* want in a jodge? Should all legal decisions be a situation where the letter of the law and the basic meaning of words are twisted accordingly to fit a given ideology, as opposed to what would be fair, equal, and just under real world conditions?
posted by markkraft at 7:19 PM on May 21, 2009


Ginsburg won't leave the Supreme Court. She'll be toe-tagged out of there.

If she's not dead by next summer, she'll announce her retirement. This is easy money for me if anybody wants to bet with me on this.
posted by mightygodking at 8:43 PM on May 21, 2009


dios wrote you almost certainly would have been able to marry your wife back in 2004, unless you honestly believe that society itself would have been incapable of seating legislatures allowing that.

Actually, I do believe that. At least here in Texas where we got married, possibly it'd be legal in a few states, but I do not think it would be legal in all 50 states.

I'm not a lawyer, but I am a historian, and the polling on interracial marriage was stable at around 80%-90% disapproving for decades before Loving. Post loving we saw a few backlash years of increased opposition, followed by a rapid drop off in opposition. Obviously there's no proof that Loving was the decisive factor, but I think the correlation is indeed causation in this case. Loving allowed interracial marriage to exist, and after a few years people noticed that, hey, the world hasn't ended so it must not really be a big deal.

We see the same thing today in nations and states where same sex marriage is allowed. There's an initial period of backlash, indicated by higher polling opposing same sex marriage, followed quickly by a steep decline in opposition.

A judicial ruling in favor of equality can directly lead to society changing.

Absent Loving, I see no reason to believe that in the states more dominated by bigotry that interracial marriage would currently be legal.

As for empathy and judicial decisions, I obviously don't have your legal expertise, but I do think its fairly obvious that many supreme court decisions are not particularly cut and dried, that is, there is no single, objectively right, constitutional answer. At some point the judge's personal outlook comes into play.

In those instances I'd rather have a person with empathy, that is the ability to put themselves in the other person's shoes and consider the problem from their POV, than a person like Scalia, or Alito who appear to work from the standpoint of "in any case where there is ambiguity it should be resolved to cause the maximum harm to the weak, powerless, or minorities", the very opposite of empathy.

Or are you arguing that there is never any legitimate disagreement WRT Constitutional interpretation and that there is no ambiguity in the document?

I agree that we don't want judges fabricating law by themselves. But in instances of ambiguity, I want a judge who won't (as the conservative four routinely do) see that ambiguity as an opportunity to inflict the most harm on the weakest parties.
posted by sotonohito at 6:47 AM on May 22, 2009 [3 favorites]


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