Obama's court nominee: 'Code words?'

Solomon prayed for wisdom, and when it was granted him, he had the empathy to know a mother would rather give up her child to another woman than see it killed before her eyes. Those who say empathy has place in the judgments of a court might do well to reflect upon that.

Right wing code:

"will not legislate from the bench"

"strict construction"

"original intent"

See? Our cryptographers broke their code a long time ago.

Looks like another Chicago machine related democrat.

The above article, on Supreme Court picks, quotes one Republican (labeled twice as a "Republican") a total of 41 words, while quoting 2 Democrats (by amazing coincidence, neither is labeled as a "Democrat") a total of 293 words. A 7 to 1 Dem imbalance.

Wouldn't it be great to have a journalist with some "empathy" towards points of view different from his own?

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Posted by: ornery | May 3, 2009 11:32 AM
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That’s funny if one considers that none of the justices on the Supreme Court are strict constructionists. The other two “code” phrases you cite are standard expectations of people who wear black robes. Original intent is the basis for all canons of statutory construction applied by liberals and conservatives alike. To “not legislate from the bench” is merely to recognition that our federal government has three co-equal and coordinate branches, and that the judiciary is not part of the legislature.
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It’s even funnier when one considers that Obama has not been speaking in code words. He has been very explicit in explaining the qualities he seeks in a replacement for Souter. He already said he wants another Earl Warren. That’s not code for judicial activism. Warren was the embodiment of judicial activism.

"Code words" is the latest GOP talking point. Is "empathy" a code word for "activist" judge? According to Conservatives, Obama is obviously part Navaho; he speaks in code. Conservatives don't even try to disguise the official talking points anymore. On every Sunday morning show, the Republican and/or conservative guest used the term "code word" in regard to Souter's replacement on the Supreme Court. Guests included insufferable George Will who described the images of James Madison on his tie as "code" to fellow Republicans. It would seem that the poor Karl Rovian Republicans have been hoisted on their own paranoid petards.

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Posted by: ducdebrabant | May 3, 2009 11:24 AM
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When Solomon prayed for wisdom, he got what he asked for: wisdom. You have mistaken empathy for wisdom. The ability to intuit another’s propensities from the unstated rules of human nature is part of wisdom. Empathy, in contrast, is the ability to identify and understand another person’s feelings or hardships.
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The problem here is that Obama is seeking someone who will use “empathy” as a means, if not a rule, for decision-making. This is not a matter of conjecture. He has said so. He believes the socio-economic status of the parties before the court should, in some instances, be outcome determinative. A judge, he said, should have content of “heart” in a limited number of cases, where the rule of law is perhaps non-existent or not exactly on point, to put his or her finger on the scales and tip them in favor of a party because of the party’s status as disenfranchised or powerless.
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I have a big problem with that point of view. The absence of an applicable rule of law is not a reason for a judge to make one on the spot. The absence of a rule is often intentional, and often serves as the basis for decision. If, for instance, a law creates a right or entitlement similar to the one sought to be enforced by a litigant, the only two possible outcomes are: (a) the litigant wins because the right or entitlement sought is actually comprehended within existing law; or (b) the litigant loses. If, in the second case, a judge instead votes to make the litigant win by extending the law beyond its intended reach, that judge has gone outside of his or her proper role. He or she is no longer acting as a judge, but as a legislator without any political accountability.
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Value judgments concerning the law are supposed to be made by those whom the people have elected to make laws. Then, if people don’t like the content of the law, they can change it by electing a new representative. Legislators are also better equipped than judges to comprehend the entire problem addressed in legislation, and to make fine adjustments and compromises when necessary to do justice. Judges presiding over an adversarial proceeding only know the evidence in the particular case, and can only comprehend the impact of the law on the interests of the parties to the suit. That is a perspective often too narrow to do justice when announcing broad policy decisions that impact everyone.
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It should also be mentioned that deciding cases based on the status of a party undermines society’s legitimate interest in stability and certainty in the law. The law applied in a court of law to the rich and powerful should always be the same as the law applied to the poor and powerless. If two cases are factually identical in all respects except for the socio-economic status of the parties in one of the suits, why would it be fair to apply different legal rules based on the difference in the parties’ status? How does one, then, limit or rationalize the difference? This can only foster an “oracle” like role in the courts, in which judges alone make fine and finer distinctions without any legitimate policy basis. One should not wonder that this kind of judicial activism has legislatures throughout the country constantly amending their laws to undo the unintended gloss the courts have placed upon them.
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So, yes, I have reflected upon the question as you have suggested. I respectfully disagree with you because, as I see it, the very characteristics that Obama is looking for in a replacement for Justice Souter are just as likely to cause a miscarriage of justice as they are to bring justice to fruition.

Please people..let us start acting like adults instead of party politicos. Can we please have a good discussion instead of political barbs? Please? "Code words" is the worst I have heard from the newest pundits trotted out this weekend from the left. Don't think the left gets off so fast...we have yet to see what they will come up with.

"Usually those are code words for an activist judge... who is going to be partisan on the bench,'' said Sen. Orrin Hatch

These republican's need to stop this silly name calling. If anything, it is Roberts, Alito, Thomas and especially Scalia who are the activist ideologues. Spitting on the founders true meaning of the constitution for years.

syj is correct.

Listen to the oral argument on CSpan, which was brdcst over the weekend, in the Title V voting rights act case.

Uncle Thomas, as usual, sat mute.

Roberts, Scalito, Nino---pushing to invalidate Title V.

"Sovereignty" of Georgia, Alasssippi is being devalued , they imply.

100 years of voting rights denial in the deep south states must be ignored; Congress has to let them off the hook now.

Roberts, Nino, Scalito and the silent one: 4 solid votes to undermine Congress.

As long as they are going to spew their essentially anti-
Congress (and anti-democratic) screeds in dissents and 5/4 opinions, a strong corrective voice is in order.

Larry Tribe, for example.

Not some "centrist" who can't make the arguments.

The job is simple. Determine if the current federal laws of the land have been violated or not. The job of the judge is NOT to legislate from the bench. The job of the judge is to be fair in their decision while not breaking the ethics of law. It is up to the legislative branch to write laws and not the job of a judge.

Empathy is just that..."Well it does violate the law, however, I feel sorry for Jane Doe and as such I will say the law was unfair in her case even though the law was clear." That's an empathetic judge and as such has no right being on the bench where empathy is not the rule. The rule is simple. Like I said before, losing Souter does not tip the scales inasmuch as conservative or liberal decisions. The next one made by Obama (Ginsburg) will damage the way the Supreme Court functions since he looks for emathetic and "folksy" kind of judges. A judge should come in non-empathetic and impartial plain and simple. Once again, here is a president who has no idea what he is doing and the pied piper of politics reeled in a load of followers to vote him in.

Wanting a judge who has empathy for poor and working class people is not a bad thing, no matter how many twisted republicans say that it is. We've already got four judges who don't. We don't need another one.

Joe the Plumber also has a law degree??

Anyway, looking back at the great 20th century justices, most of them had experiences in the trenchs.

One problem with the appellate courts is: too many of the judges have never tried a case, have never represented an individual, meaning a natural person, a real human being, as a client.

Have never had to interact with the public in any meaningful way, e.g., by getting elected to some office.

Too many have only worked for government or 1000 man law firms, or are academics, and have had no hands on experience with the interface between law and actual people.

Earl Warren was tough on prosecutors because he knew all their dirty tricks, having been a prosecutor himself. (Incidentally, Souter had experience as a prosecutor, which was a plus for him.)

Justice Black was a Senator.

Thurgood Marshall had most of his career represented individuals, sometimes where even his personal safety was in issue.

The Prez has done it all. He did represent individuals. He was out in the field trying to help those laid off steelworkers. But was also an academic...

Can he appoint himself?

That would be the ideal appointment.

It's obvious, Joe, that you got your law degree in a lunchbox, because it's NOT the job of the Supreme Court to "[d]etermine if the current federal laws of the land have been violated or not".

It's the job of the Supreme Court to determine whether a particular federal or state law violates the CONSTITUTION.

"Once again, here is a president who has no idea what he is doing and the pied piper of politics reeled in a load of followers to vote him in. "

All politicians need to "reel-in" voters to a certain extent or they don't get elected. So your statement is quite silly.

Now, I agree that judges need to come into each case completely "color-blind", if you will. But I think you confuse the word "empathy" with "sympathy". As many in this blog are doing.

There is nothing wrong with justices who show "empathy" towards someone. That doesn't mean they are baseing a decision on that.

Sympathy, on the other hand, would be a problem, since the definition actually invovles "A relationship or an affinity between people or things in which whatever affects one correspondingly affects the other". (American Heritage Dictionary)

A judge could vote against a case but still show "empathy" in so doing. The problem I've seen for some time now, both left and right, is justices take their rulings too personally.

Just to use the "abortion" case as an example, if there are LAWS prohibiting certain aggressive protesting tactics that violate the rights of someone entering an abortion clinic, Scalia or Thomas (etc.) woud have NO CHOICE but to side with the person seeking the abortion. They could "empathise" with what the abortion opponents were trying to accomplish, but could not allow their "sympathies" towards their cause to cloud the law.

How about "empathy" for the Constitution? For the Law? For Democracy? For paying their taxes?

Is that too much too ask of Obama?

Bruce, I would like to attempt to answer the five questions that you have very properly raised.

- For the Constitution
No, that thing is only about 222 years old.

- For the Law
No. The Legislative branch writes the law, the Executive signs off on it, and an enlightened Judiciary re-writes it.

- For Democracy
No. Democracy can be a very inconvenient kind of thing.

- For Payment of Taxes
No, see Democracy, above.

Too Much To Ask
Not just too much to ask but waaaaaay too much to ask

Thanx. No Revelations there, I’m sure, but answers we pretty much already have.

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Posted by: David J | May 4, 2009 11:52 AM
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Everything you said is absolutely true, David. A judge can feel empathy or sympathy for a litigant and still do his or her job properly. However, this does not explain what Barack Obama has openly stated concerning his views. For instance, in opposing the confirmation of Chief Justice Roberts, Obama said:
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“ . . . what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point.... In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, ... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.... The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”
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Notice that Obama doesn’t fault Roberts for being an advocate. He faults him for being an advocate for the wrong side too often. Overall, the quote shows that he appears to believe that it is appropriate for a justice to function as an advocate rather than an impartial arbiter of the law. He says he wants a justice who will be inclined to advocate for the legal position of a particular litigant in “difficult cases.” How does that square with your correct view of sympathy and empathy and the decision-making process? Put differently, if he thinks empathy is supposed to translate into advocacy, isn’t he asking for the kind of decision making that amounts to judicial activism?

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Posted by: jlp | May 4, 2009 11:37 AM
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If I had to choose between the two of you, I would say that Joe Lunchbox Lawyer’s definition of the role of the Supreme Court was more correct than yours. The Constitution is not the only concern that occupies the U.S. Supreme Court’s time. The Supreme Court also decide cases, for example, that involve the interpretation of federal statutes and regulations, federal jurisdiction over maritime law, state laws that conflict with federal statutes and treaties, and from suits in federal court where jurisdiction is invoked based on diversity of citizenship - all of which may have nothing to do with the Constitution. The Court also has original jurisdiction in certain lawsuits involving foreign ministers, suits in which one state sues another, and so on. In fact, cases involving these other issues probably take up more of the U.S. Supreme Court’s docket than do cases involving the Constitution. While Joe’s standard of: “[d]etermine if the current federal laws of the land have been violated” may also be a bit under-inclusive for the reasons stated, his view of Supreme Court jurisdiction wasn’t as under-inclusive as yours.

John W,

That's why I said, "The problem I've seen for some time now, both left and right, is justices take their rulings too personally."

Our presidents, for quite some time now, have tried to stack the courts with Judges who are "activist" (either way) who have shown they WILL side with their causes before the facts. Of Bush's appointments, I must say I don't mind Robert's too, much. He seems reasonable and "fairly" impartial. Alito is a part of this growing problem, however. The partisanship that has infiltrated politics over the last 15-20 years, is also poisoning the bench. And I think both parties are at fault.

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Posted by: David J | May 4, 2009 5:01 PM
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I think you are absolutely correct. Playing partisan politics with the Supreme Court undermines certainty and stability in the law.