Professor Bainbridge...on law, politics, religion, culture & food

Reagan wrote in his diary on July 6, 1981: “Called Judge O’Connor and told her she was my nominee for supreme court. Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She says abortion is personally repugnant to her. I think she’ll make a good justice.”

http://en.wikipedia.org/wiki/Sandra_Day_O'Connor#Appointment

Can you imagine the logical conclusion?

“In ABC Corp. v Marsha Williams, the Supreme Court held contractual provisions unenforceable if one party is a multinational corporation and the other makes less than three-times minimum wage.”

Saying that one ought to have empathy for the disadvantaged is hardly equivalent to saying that that disadvantaged person automatically wins a legal dispute.

Cornellian, I’ll bite.  Although Obama didn’t say it, I do recall a lot of debate about the Roberts nomination to the Supreme Court included Senators mentioning how many of his rulings favored corporations versus individuals.  One ruling in particular involved a girl who had been arrested for eating a french fry on a bus with a no-eating policy.  The fact that Roberts was part of a unanimous decision upholding the law in that case (although also criticizing it “the question before us ... is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution").

So again, although Obama didn’t say it, there is a general belief among some people that the courts should disregard the law in cases that would give a favorable outcome.  Say, when people in New Orleans have insurance on their house but the policy explicitly does not cover flood damage, there is a large group of people who believe the insurance companies should still pay out for flood damage.  So, yes, I will stand by my statement that giving the courts such free reign would lead to precedent based not on what the law says but on who the two parties to the lawsuit are.

Cornellian’s point makes perfect sense to me. I’d like my judges to apply the law. But I’d also like them to have some understanding of what and who they are applying the law to.

John: Even if Reagan picked O’Connor because he expected her to make policy based on what she found repugnant, two wrongs don;t make a right.

Cornellian: I think the quote in the update is even clearer that Obama wants judges with a thumb on the scale on the side of whatever group the judge perceives to be disadvantaged.

It might not be “right” for Obama, Reagan, FDR or anybody else to choose judges based on their positions on specific issues, but I don’t think it’s “odd” that they do so since there’s been a long history of executives doing so.

Professor Bainbridge,

I don’t think the quote in the update is particularly damning. In fact, Terence Jaffrey seems to have an unrealistic notion of what the “rule of law” involves. Appellate courts select for cases that can’t just be decided by reference to legal sources. Saying that 5% of cases in the SCOTUS are such cases is hardly endorsing critical legal studies.

While, as a matter of principle, I don’t think judges should be in the role of “Empathetic Defenders of the Have-Nots”, mostly because of the implications with respect to the rule of law, it must be noted that Obama and his ilk recognize the overwhelming influence of the corporatocracy in the passing of our laws, and though courts are not always the best fora for pursuing economic justice, desperate people (and the elected officials who identify with them) will seek out any avenue to pursue those ends, especially when the normal avenue (the legislature) is blocked by the monied interests.

Shorter Bainbridge:

Waaaaaaaaaaaaaaaahhhhhhhhhhhh.

Classical example of a “strawman” by Mr. Bainbridge. To suggest that empathy for disdvantaged groups is somehow contradictory to judges being “neutral arbitrators” is ridiculous. This line of thinking can only lead to the conclusion that judges need to be supplanted by computers.

The reality is that the judicial system is not a computer game, where one can consistently find algorithmic solution to every case. The process is imperfect, human, prone to errors, subjected to influences.

Anyone who has had any involvement in the judicial system knows that it is not neutral but is in fact skewed against the disadvantaged. Money can buy the best lawyers - the ones who can take full advantages of the process with all its kinks and ambiguities, and spin the most polished presentation of the fact. Power and celebrity can overcome fact and evidence in making impression on jurrors. Same for prejudices against minorities.

Empathy towards disadvantaged groups is, in fact, a powerful weapon to make the judicial system fair and neutral by neutralizing the inherent advantages that money, power, celebrity, and conformance to a majority-held cultural norms have - exactly the opposite of Mr. Bainbridge’s thesis.

As long as we’re quoting Supreme Court Justices, let’s not forget Oliver Wendell Holmes. He is known for the idea of legal realism, which holds that law is made by human beings, and subject to their foibles, mistakes, emotions and prejudices. Any judge who assumes he/she can “apply the law” divorced from their own humanity makes a critical error. Everyone has their biases. A judge who says “I just apply the law” strikes me as unwilling to acknowledge the simple fact that any human endeavor is bound to be tainted by human imperfections. The best we can do is watch out for our own biases, not pretend we don’t have them.

John, hopefully the point of being aware of one’s biases is to weed them out; it should be in the service to fidelity to the law, rather than a pro forma declaration of orientation before one ignores the law.

IMHO, though, the court took heat - rightfully, again IMHO - over its recent opinion on statutes of limitations and discrimination claims for failing to understand how discrimination operates in the real world.  Importantly, in that case there was a lacuna in the law that could have been filled through a presumption for the little guy (legal realism as gap filling).  It could well be that BHO’s comment was in response to something like that.

Or, alternately, it was just pandering, something that BHO has gotten increasingly good at.  Either way, I don’t think his comments should be read absent context (whether that context is gap-filling legal realism or political pandering isn’t clear from the post)

Justice Harlan said that in his famous dissent in Plessy v. Ferguson.

Two paragraphs later he said this: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.”

jpe: My point exactly. It is impossible to weed out one’s biases if one does not acknowledge that they exist in the first place.

Conservatives should be demanding the creation of a supercomputer to replace all human judges immediately.  If they can play championship chess, they can rule for corporations 100% of the time just like Alito does.

So Obama wants judges who are decent, well-rounded human beings, and wingnuts interpret this as saying that he wants judges who won’t base their opinions on sound legal reasoning?  Where does he actually say that?

Apparently the right is now so essentially dishonest that it believes all sound legal decisions will have right-wing results.  But then dishonesty has been the dominant right-wing trait for a couple of decades now, so why should this surprise anyone? 

I hope President Obama gets 5 Supreme Court nominations through.  May they all make conservative pundits cry themselves to sleep at night.

This is baffling stuff.  How you get to the conclusions you draw from the quote you post is beyond me.  You will concede, I’m sure, that, at least sometimes, precedent in a legal matter is not dispositive.  And you will further concede, I suspect, that it is for just this reason that we need competent judges.  Now, if a judge sometimes has to interpret the law in cases where precedent is not dispositive, surely it’s better for the judge to be sympathetic than otherwise.  It really seems more emotional than logical to insist that sympathy and respect for precedent can’t coexist.

"You see, he knew his own laws just as other people so often know the laws: by words, not by effects. They take a meaning, and get to be very vivid, when you come to apply them to yourself.”

- Mark Twain, “A Connecticut Yankee in King Arthur’s Court”

Impartiality is the death of law.  For when one cannot see the effects of the law - in personal measure - it ceases to fulfill its purpose.

This puerile argument against Mr. Obama’s statements is made by those with nothing to fear from the law.  This is not the case for many.  It is not surprising that it has been forgotten.  It is the first thing they teach you to un-learn in Law School.

Perhaps Professor Bainbridge could show my tired eyes the aspect of the Constitution that engenders the attendant rights and protections of human-ness on corporations.

"Judges are supposed to be neutral arbitrators, not having a thumb on the scale in favor of one side or the other.”

This view is terribly naive.  There is more to being a judge than “calling balls and strikes” as Roberts claimed in his confirmation hearing. 
For the most part, the “originalism” of a Scalia is a stalking horse for a conservative political ideology.  Originalism or judicial restraint or judicial minimalism do not result in a clinical analysis that produce a neutral arbitration of disputes.  Rather, even judges that adhere to such judicial philosophies, apply them selectively in order to reach outcomes that they happen to find politically agreeable.  Scalia or Roberts or Thomas or Alito will reach decisions that consistently favor free markets and business interests, preserving the death penalty, gun rights, states rights, etc.  They may claim it is because of their “judicial philosophy,” but I doubt they reach many results that they find politically objectionable.

I have no doubt that liberal judges adopt similar mechanisms ("philosophies") to effect their poltical beliefs.  To suggest that conservative judges are any less results-oriented than liberal judges is simply wrong.  You can predict the outcome of practically every case based solely on the political issues involved and the make-up of the Court.  Bush v. Gore is a prime example of ex post legal rationalization for political decision-making.  All of a sudden, the conservatives became fans of the equal protection clause.  Sure.

If Obama wins, he should appoint judges who will reach results that he finds polticially agreeable.  That is what all presidents try to do.  It’s time for a little more balance on the Court.

The idea that a judge can be completely blind to race, class or social status is myopic.  Decisions are not made according to some laboratory ingredient list.  They are an aggregate of answers to questions like “who is responsible,” “who is harmed,” “is it reasonable,” and “how does this situation follow precedent?” Any judge is informed by their own beliefs, attitudes, assumptions, and backgrounds and answers accordingly.  There is simply no way around it, nor should we attempt to find one.  The human element is vital, it’s what makes “justice” out of “law.” Our best bet would be to recognize it and try to “balance the humors” so to speak, so the broadest range of our experience is accounted for when it comes time to deliver a verdict.  That’s why I agree with Obama’s sentiment.

Your “gem” is disingenous to say the least. Obama’s comment—or rather, the excerpt of the comment you’ve cherrypicked—was misrepresented by MSNBC’s Carrie Dann as Obama’s opinion on “judicial philosophy,” when, if one reviews the text of Obama’s *actual* quote [1]—Obama was clearly and simply expanding his criteria for assessments of judicial “character”.

Obama, quoted: “[John Roberts] loves his wife. He’s good to his dog, ... [however,] We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the [character] criteria by which I’m going to be selecting my judges.”

[1] http://www.barackobama.com/2007/07/17/obama_on_judges_supreme_court.php

Is Alito’s or Scalia’s extreme deference to law enforcement officers some form of neutrality? I think not.

Obama is talking about empathy only.  He’s not talking about looking the other way and ignoring the law.  There’s obviously plenty of ‘judging’ (and law) with the intent only of preserving the status quo of the rich and connected.  I’d toss corporations, in general, into this category too, and force some added accountability because I empathize with the individual over the ability of money to buy legislation.

Bainbridge has lost it.  Let me extend Robert’s baseball umpire metaphor.  Anyone who knows baseball knows that how the judge calls balls and strikes depends, in part, on how upright he stands (high strikes or low strikes) and which side of the plate he shades depending on the batter (wide right and tight left, or vice versa).  Roberts, obviously, shades right and stands “high” . . . which is why Bush picked him, of course!

Obama is not stupid and the 15 years at U Chicago have undoubtably rubbed off on him.  He will select some of the smartest, dedicated liberals he can find, and do not be surprised if there is a heavy Chicago and Yale influence.  Obama judges, in contrast to Roberts, will add intellectual diversity to the court by shading left and standing low.  Lastly, cons, one thing is clear: the desperation in your wacked conclusions from too little information shows me that there is real fear of the Obamanator!

"How you get to the conclusions you draw from the quote you post is beyond me.”

It’s genetic.

The idea that a judge can be completely blind to race, class or social status is myopic.  Decisions are not made according to some laboratory ingredient list.

It does not in any way follow that we should reject the attempt to be impartial and just give in to our biases.  Even if imperfect it is still possible, I think true, that the honest attempt to be impartial helps reduce them and produce better long-term results than the alternative.

"Judges are supposed to be neutral arbitrators, not having a thumb on the scale in favor of one side or the other.”

...

“Whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
http://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.

The law applies equally to all. I would hope I’d get pulled over in my Honda Civic just as much as a guy driving a Ferrari. BUT our punishment—the sentence—may be different, based on our different circumstances.

In the last 30 years, 1/6 black men went to prison largely because of crack and its extraordinary long sentences as compared to cocaine (a “white” drug). Is more “searching” inquiry necessary here by judges?

Judges need to apply the law, but reasonable leeway is necessary to determine what “punishment” actually means to the convicted.

The ghost of Oliver Wendell Holmes asked me to point out that the aseptic notion of legal purity in judicial thinking expired well before you were born, junior.  If you think that Scalia, Roberts or Alito have no internal biases concerning class and race then I have a complicated Nigerian bank transaction that will surely interest you.

Apparently the right is now so essentially dishonest that it believes all sound legal decisions will have right-wing results.  But then dishonesty has been the dominant right-wing trait for a couple of decades now, so why should this surprise anyone?

Not really.  Republicans believe that once they’ve finally won a legal battle in Congress—assuming that the law is not actually unconstitutional—judges should not be able to overturn it because they would have voted differently had they actually been elected to Congress themselves.

[Obama] will select some of the smartest, dedicated liberals he can find, and do not be surprised if there is a heavy Chicago and Yale influence.  Obama judges, in contrast to Roberts, will add intellectual diversity to the court by shading left and standing low.

And in ten years you will see precedents like “when a bank offers a mortgage, calls out the fact that the interest rate will adjust over time according to an index that may go up or down, offers to refinance to a fixed rate, offers financial counseling to the client, has the client sign several legal documents, and the client becomes unemployed through no fault of the bank, the bank cannot legally foreclose on the client even though the law does not include any such prohibition; after all we’ve ‘got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.’”

This is surely one of the best threads I’ve ever read. But, Max Lybbert, while it may be true that Republicans believe that once *Republicans* have finally won a legal battle in Congress, judges should not be able to overturn it, they surely do not feel that way when *Democrats* have won a legal battle in Congress.  By any measure, judges appointed by Republicans have overturned by an order of magnitude far more statutes than have judges appointed by Democrats.

I think you are making the assumption that to judge with a sense of empathy and morality implies that one must contravene the Constitution.  I believe the opposite may be true: empathy in this case means that one can feel in their bones the spirit behind our Constitution.  There are many, many instances in which a rational jurist could reasonably come to multiple conclusions; if this wasn’t the case, there would never been dissenting opinions on the Court (unless you believe that at least 4 Justices aren’t rational jurists).  It is perfectly reasonable for a sitting President with a popular mandate to seek to appoint judges whom they feel would lean in their “preferred” direction in these cases.  Obama said his much in his defense of Senator Feingold during the Roberts confirmation hearings:

http://www.dailykos.com/story/2005/9/30/102745/165

The current President has done so, the next President will do so, regardless of who wins.

"There are many, many instances in which a rational jurist could reasonably come to multiple conclusions; if this wasn’t the case, there would never been dissenting opinions on the Court”

While i’d probably agree w/ where you’re coming from, there have been many, many irrational decisions by the court (discrimination against “pregnant persons,” anyone?). The fact that there’s dissenting opinions doesn’t prove that the “multiple conclusions” are rational.

"We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom.”

I read that far differently. It should be a minimum requirement of anyone with the power of a judge to have full empathy for everyone who comes before the law. It is presumed that a judge will at least have empathy for those of the judge’s own background. If that’s the breadth of the judge’s empathy, the judge cannot be fair. A judge who cannot be fair shouldn’t be a judge. Cleverness without humanity is insufficient qualification.

Thinking more about it, if corporations (or others) start to feel that the courts are stacked against them, then they will simply look to self-help solutions; whether that’s the repo man, binding arbitration agreements, or a decision to stop writing insurance policies in particular states.  If you think the little guy has it bad today, just wait a few years.

While it may be true that Republicans believe that once *Republicans* have finally won a legal battle in Congress, judges should not be able to overturn it, they surely do not feel that way when *Democrats* have won a legal battle in Congress.  By any measure, judges appointed by Republicans have overturned by an order of magnitude far more statutes than have judges appointed by Democrats.

I was just trying to be honest as to why this is currently considered a conservative issue, and why I believe in a few years it will also become a liberal cause.  However I hope I will be honest enough with myself at that time to have a consistent opinion.

I’m having trouble thinking up a good federal example.  However the state I live in (North Carolina) recently started requiring that kindergartners have eye exams before starting school.  The state Speaker of the House eventually admitted to accepting bribes in order to get that law passed.  And while I definitely want the state government to overturn the law both because of the corruption involved in creating it and because it’s a silly law, I do not want it overturned as unconstitutional because I don’t see any clause in the federal or state constitution that this law conflicts with.  I would much rather see the state legislature grow a backbone and repeal the law.

By any measure, judges appointed by Republicans have overturned by an order of magnitude far more statutes than have judges appointed by Democrats.

I’m not aware of any comparative studies on that.  In fact, I’m not even sure if there are more Republican-appointed judges than Democrat-appointed judges on either the state or federal levels.

although i am bracing for a “of course the nytimes would say that!” response, here is that study:

http://www.nytimes.com/2006/09/11/opinion/11mon2.html?_r=1&th;&emc;=th&oref=slogin

or here is the actual paper

What Obama said is actually subtle and true; and it’s true of both sides. If Scalia and Thomas can always be predicted to fall on one side of a question, and Ginsberg and Souter on the other, then the only explanation is not the law itself but one’s predispostion. Call it “emotion,” or bias or political philosophy. Bush’s appointee were predictably of a persuasion. So might be Obama’s. He just phrased it carefully, honestly, and accurately.

"Judges are supposed to be neutral arbitrators, not having a thumb on the scale in favor of one side or the other.”

Only a law professor could be so clueless or pretend to be so naive. Or does Joseph Flom require this when he funds a chair. Skadden marches on. The little guy takes it up the butt. Hurrah.

Thanks for the links.  However the New York Times’ description makes the paper sound simplistic and wrong:

Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to 2005. Because judicial activism is a vague concept, she applied a reasonable, objective standard. In the study, ... justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.

The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress.

I have a hard time accepting the idea that “activist” really just means “overturning a law or a precedent” instead of “inventing legal theories out of whole cloth.” But that’s not my main problem with the study.  The problem I see is that the study only covered ‘94-’05.  If the judges were overturning newly-passed laws, those laws had been passed by a Republican-controlled Congress.  It’s odd to suggest that the Rhenquist Court was therefore activists of a conservative bent because they kept overturning Republican laws.

It also leaves out all judges in the country not lucky enough to have one of the nine seats on the Supreme Court.  Additionally the Times article at least does not say whether Swingin’ Sandra Day O’Conner was counted as a conservative or liberal, nor does it say anything about the other swing votes (still) on the court.

I’ll read the paper later when I have more time.

Let’s have the Supremes decide whether John McCain - born in the Canal Zone - qualifies as a “natural born” citizen or not.  Let’s have them do it without offending so-called “strict constructionist” values.

I’m guessing that would make all of the usual con suspects STFU on this topic… until the next decision was due.

Gimme a break. That was a political statement. Everybody plays politics with saying what kind of judges he’d nominate to the courts. Republicans do it too. Obama knows that thats not the criteria you use to pick judges.

Youre taking political rhetoric waaay too seriously.

*Logan Rappaport* hits the bulls-eye, dead center.

The problem is that the monied interests own & operate the lawmaking process.

Ideally, the judiciary would simply enforce the laws as written, but when those laws are written so as to screw 90% of the country for the benefit of a few selfish @$$holes, something has to restore the balance.

If we could flush the bloodsucking fascists out of the GOP, I could probably go back to voting for them. As it is, I’m voting Obama because my first choice, Ron Paul, is an old white guy and was too easily destroyed by the MSM.

All we need is a female Black libertarian to run for president next time, and we just might get our friggin’ country back.

It’s sad to see how little regard some of the commenters have for basics principles of a liberal democracy like the rule of law, neutral principles, and equality before the law. It’s even sadder to see how quickly so many resort to vulgarity instead of argument.

Prof B writes: “It’s even sadder to see how quickly so many resort to vulgarity instead of argument.”

It’s even sadder how so many ignore real obscenities like torture and pointless war but will instantly complain about harmless curse words.  And it’s a very fair point that you deliberately misinterpret Obama’s comments in a way you would never do with those of a conservative candidate promising to appoint judges with “traditional values.” Why aren’t compassion (the genuine kind) and empathy values you cherish, anyway?

"We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

And we’re to have no empathy at all for the teenage father, who has been denied all legal say in his child’s life. And no empathy for the hard-working middle class person who was just mugged, raped, robbed or beaten by the poor person. And no empathy for the wealthy person, say a doctor, who is being fleeced and ruined by Edward’s-like scam artist trial lawyers. And no empathy for the middle class neighborhood ruined by a low income housing project which is forced down its throat in the name of “equality” and “diversity.” And no empathy for the straight person who is fired and their career ruined for making a silly gay joke. And no empathy for Euro-Americans for anything, ever. And no empathy for the young who are denied entrance into elite colleges in lieu of far less qualified minorities. Yes, our judges are never to have any empathy at all for the people who are routinely screwed over and denied rights to their own thoughts and property because of Big Brother style “hate crime” statutes and speech codes.

In other words, judges are to be like College Presidents, feckless destroyers of the status quo, and dreamers of the New Man.

MoeLarryAndJesus writes:

It’s even sadder how so many ignore real obscenities like torture and pointless war but will instantly complain about harmless curse words.

It would be nice if Moe had bothered to find out something about his host before spewing criticisms.

E.g., Bainbridge on torture:

The moral principles on torture in Anglo-American thought are not new. To the contrary, the Anglo-American tradition, according to the great Eighteenth Century English jurist William Blackstone, includes a “prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers).” For a conservative the question thus is easy: We thus ought to abstain from torture simply because a prohibition of torture is part of the moral and legal heritage we are fighting to defend.

All of which strikes me as yet another data point for the case that Bush and his neo-con advisors are not true conservatives.

But I guess that’s asking too much.

It’s even sadder how so many ignore real obscenities like torture and pointless war but will instantly complain about harmless curse words.

It’s still sadder how so many have been afflicted by Bush Derangement Syndrome to the point that they’ll fold, spindle, and mutilate words like “torture” in order to beat up a Republican president in ways they’d never have done when the Clenis was occupying the Oval Orifice; and that they regard overthrowing a genocidal dictator who’d openly defied the terms of a 1991 ceasefire agreement with the United States as “pointless”.

And it’s a very fair point that you deliberately misinterpret Obama’s comments in a way you would never do with those of a conservative candidate promising to appoint judges with “traditional values.”

I see no misinterpretation by the Professor. I see weenies like you desperately spinning to the effect that of course Obama’s first criterion for judicial appointments is fealty to the law; he just wants his judges to be swell people, too.

Why aren’t compassion (the genuine kind) and empathy values you cherish, anyway?

When did you stop beating your wife?

Here, have a free clue: The job of a judge is not to show compassion and empathy. It’s to apply the law to the facts of a case.

Professor Bainbridge,

Several people, correctly and civilly, have pointed out that there is nothing in Obama’s quote, as you yourself have excepted it, that even slightly suggests a wish for judges that would abandon fundamental judicial principle in favor of preferred outcome. As such, it amounts to little more than a tiresomely paritsan talking point that has nothing itself to do with principle, judicial or otherwise.

If rather than defend your presumption, for that it certainly is, all you can do is harrumph about the Vulgar Unwashed, it seems to me then that their point has been quite clearly and definitively conceded.

Civilly,
G

G: I don’t generally don’t respond to arguments that are self-evidently wrong. But here goes.

“In those difficult cases,” Obama said, “the critical ingredient is supplied by what is in the judge’s heart.” Roberts and Alito were bad judges, he decided, because their hearts weren’t in the right place.

Obama votes on judges based on their heart and I said that’s wrong. I did not take him out of context. I took him at his word.

His defenders have tried spinning those words, but they can’t change the basic fact that Obama wants people who make decisions on the basis of what’s in their heart and I want them to make those decisions without “fear or favor.”

Even if Reagan picked O’Connor because he expected her to make policy based on what she found repugnant, two wrongs don;t make a right

Steve, that is one of the more spectacular examples of completely missing the point I’ve seen this month.  And I read a lot of blogs.  Clearly, conservative critics thought she was pro-abortion based on her rules; Reagan said she personally found it repugnant.  In combination he was clearly saying that he thought she would, as he apparently wanted, make decisions based on her best attempt at figuring out what the law was.  Now, one might argue that she was too much the politician in trying to do this, or ven that Reagan was mistaken, but your reply just doesn’t make sense.

"We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

And we’re to have no empathy at all for the teenage father, who has been denied all legal say in his child’s life. And no empathy for the hard-working middle class person who was just mugged, raped, robbed or beaten by the poor person. And no empathy for the wealthy person, say a doctor, who is being fleeced and ruined by Edward’s-like scam artist trial lawyers. And no empathy for the middle class neighborhood ruined by a low income housing project which is forced down its throat in the name of “equality” and “diversity.” And no empathy for the straight person who is fired and their career ruined for making a silly gay joke. And no empathy for Euro-Americans for anything, ever. And no empathy for the young who are denied entrance into elite colleges in lieu of far less qualified minorities. Yes, our judges are never to have any empathy at all for the people who are routinely screwed over and denied rights to their own thoughts and property because of Big Brother style “hate crime” statutes and speech codes.

In other words, judges are to be like College Presidents, feckless destroyers of the status quo, and dreamers of the New Man.

Well said, peterike.

Why, precisely, ought one “to have empathy for the disadvantaged?”

“Disadvantaged” people --- drunk at the wheel, stoned in an altercation, violently angered over the perceived crumminess of their lot in life --- assault, rob, rape and murder, and probably do so at rates that surpass those deemed by many to be “advantaged.” (Indeed, remaining out of the criminal justice system is a tremendous advantage.)

I guess it’s all in whether you have empathy as an individual value judgment made on the basis of someone’s overall situation, or consider it some sort of knee-jerk emotional entitlement that people are owed on the basis of inclusion or “victimhood,” the way we dole out Food Stamps and Medicare.

Re. the “G: I don’t generally don’t respond to arguments that are self-evidently wrong.” comment.

I find your quoting Terence Jeffrey’s out-of-context analysis and treating it as if it were part of Obama’s quotation itself as rather unconvincing, certainly when you’ve set the bar up at “self-evidently wrong.” This is sloppy.

I must confess additionally that I see nothing damning in any of Obama’s direct quotations, in any of these posts. Nothing implies he is depreciating the fundamental requirement of following the law. As others have pointed out, Obama’s desire for people who ALSO understand the average American is in no way something that excludes the importance of following the law. Justice Thomas is an excellent example of someone who both understands the law and a variety of socioeconomic strata. To argue or assume that these must be mutually exclusive is a simplistic logical mistake.

As others have pointed out, Obama’s desire for people who ALSO understand the average American is in no way something that excludes the importance of following the law.

I keep hearing that Obama is a gifted speaker. If he meant that empathy/compassion was a non-mutually-exclusive criterion for judicial appointments in addition to fealty to the law, then he’s certainly free to say so.

Until he does, then you and he are going to have to live with the criticism that he’s apparently interested in vetting nominees on the basis of their empathy/compassion rather than on the basis of their fealty to the law—which, it must be noted, is a results-oriented conception of the judicial role that is well within the Democratic mainstream, and thus perfectly in character for the guy.

In short, it’s up to him to explain that he’ll nominate people who reason, rather than emote, from the bench.

"Youre taking political rhetoric waaay too seriously.”

Given that Obamas’ utterances are almost entirely substance-free, and composed uniformly of rhetoric, what other choice is there aside from taking them seriously?

John wrote “Ideally, the judiciary would simply enforce the laws as written, but when those laws are written so as to screw 90% of the country for the benefit of a few selfish @$$holes, something has to restore the balance.”

A constructionist can do this as well as someone who wishes to legislate with the Constitution, as that document clearly was written to promote democracy while protecting the rights of the individual.

It is foolish to think that a court is too far to the right; that’s the only place a court should be. The legislative or executive branches have the option to sway, but the judicial branch was clearly created to interpret, not “feel”.

Barry O., who I’m sure loves his wife and treats his dog well, says:

“[John Roberts] loves his wife. He’s good to his dog, ... [however,] We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the [character] criteria by which I’m going to be selecting my judges.”

This is rather an astonishing bit of base-stealing, isn’t it?  Or is every political figure such a caricature in the deranged minds of the masses that we can presume to know whether they have any feeling for their less-fortunate or otherwise situated fellows simply by looking at their party affiliation? 

I mean c’mon; Mr. Obama’s the one living in a $3 million mansion in Chicago’s toney Hyde Park neighborhood, after all.  Pot, meet Kettle; didn’t Mr. Roberts participate in some pro bono work during his time in private practice, after all? 

Obama’s pandering, but in a very divisive way that only reinforces the shibboleths of Democratic cynicism.  This isn’t any newer, better, or more unifying than when Republicans do the same thing to reinforce their own partisans’ cynical assumptions about the other side of the aisle. 

If that’s what the new era of “hope” and “bringing the country together” is shaping up to be, cue up that song by the Who already… “here comes the new boss, same as the old boss” and all that.

What’s even more pathetic is that so many people don’t expect more from their leaders.  There’s a minimum level of honesty, decency and courtesy one would expect a potential president to extend to the chief justice.  And the politicians wonder why citizens are losing all respect for government and authority? 

Idiots.

"We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

If the above criteria are what Obama plans to use in selecting judges, then, if he gets elected, listen for the sound of popping champagne corks at a white supremacist compound near you. I can’t think of anything that could radicalize white America more.

I daresay Obama’s thumb-on-the-scale sense of judicial impartiality is nothing less than a recipe for civil strife of the most vicious kind. The $64k Question that Obama can’t, or won’t, ask himself is “If minorities all think of themselves as being victims, what happens if majority citizens starts thinking of themselves as victims too?”

Someone above said that the decisions of Thomas and Scalia can always be predicted as can the decisions of Ginsberg and Souter.

However, it seems to me that Thomas and Scalia can best be predicted by narrowly reading the law.  Ginsberg and Souter can best be predicted by picking the most liberal outcome. 

This does not make them both equal.

Seems to me Obama is referring to a tie-breaker. What would you suggest, if not empathy?

Professor Bainbridge,

What is self-evident is that even if this quote was the one you originally extrapolated from, it still doesn’t begin to support the contention that Obama would, in betrayal of fundamental morality, to say nothing of legality, “thumb the scales” of justice in order to conduct “class warfare” in the courts as has been repeatedly and exhaustively pointed out above. I see only an acknowledgement of the obvious: that judges’ characters will inform occasionally inform their decisions, are therefor at some (small, actually) issue, and that empathy would be a desirable trait.

You still have yet to offer any evidence to support your rather wild eyed “Obama Hates America” conclusions from this simple statement and I wonder again that you sniff at the temerity of the question rather than simply answer it.

As for Principles, well Sir, I will not myself jump to a conclusion but if it is as well your contention that you and those on the right would and do not make an identical test of ‘heart’ in evaluating potential jurors, then vulgar I suppose I will be in saying that is a laughably obvious falsehood and indeed we need waste no more time.

Is it?

Thank you.

G

As site owner, I’m giving myself the last word.

G: Here’s what Obama has said in the past taken from his own website:

‘’While adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court—so that both a Scalia and a Ginsburg will arrive at the same place most of the time,’’ said Obama, ‘’what matters on the Supreme Court are those 5 percent of truly difficult cases. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. And the last mile can only be determined on the basis of one’s deepest values—one’s core concerns—one’s broader perspective on how the world works and the depth and breadth of one’s empathy.”

“In those 5 percent of really hard cases,” Obama continues, “the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.”

This is precisely what I’ve been saying. Obama thinks it is okay for a judge to rely on personal policy preferences. Of course, I suspect he wants to appoint judges who share his preferences, which is probably why he told the NWLC that he would be scrutinizing Alito’s record on abortion. But my main point has been that Obama thinks its okay to decide hard cases on the basis of “one’s” values.

And I say no. Personal values should be irrelevant. In the hard cases, you can rely on analogy, tradition, original intent, norms and policies that have wide social support. But not “one’s” own personal values.

I think we’ve pretty much exhausted the topic for now. So I’m closing comments. But Julian Sanchez has an interesting post on the issue. I plan to respond to it tomorrow, so we can pick up in the new post then.