Friday, May 09, 2008

Empathy is not Justice

David Harsanyi notes Obama's take on how justices should be appointed:

After a recent Supreme Court death penalty case, Obama said he would nominate justices who shared "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

Relying on such extraordinarily subjective views undercuts the idea of blind justice. It implies that justices should be free to follow their own broader perspectives rather than the law.


Empathy is defined as "Identification with and understanding of another's situation, feelings, and motives." Empathy might be important when one is a therapist, but one is to be impartial when in the role of a forensic psychologist where the goal is to be objective and follow the rule of law. Shouldn't justices be held to an even higher standard, given the responsibility they have and the oath that they take?

Update: Protein Wisdom: But then, what’s the use of being a Messiah if you can’t rewrite the metaphysics of meaning, right?

41 Comments:

Blogger Bugs said...

It's the core weakness of liberalism: belief that things like law and tradition should never stand in the way of doing the right thing. That sounds noble, but it's also short-sighted. In the real world, doing the right thing is often the wrong thing.

11:35 AM, May 09, 2008  
Blogger Carol Minjares said...

It's because they can't get what they want through the messy democracy of legislature.

1:00 PM, May 09, 2008  
Blogger Oligonicella said...

bugs --

You of course neglected to mention that the right thing was what they want, not what someone else wants.

1:01 PM, May 09, 2008  
Blogger Todd said...

That is also why liberals would rather give someone a fish (they both immediately feel better and it is easy) rather than force that man through necessity to learn how to fish for himself (he never wants for fish again).

1:13 PM, May 09, 2008  
Blogger BobH said...

Or is the "Right Thing" what benefits liberals and their clients, causing those clients to continue voting for liberals and thereby keeping those liberals in power? And at the same time, these liberals proclaim themselves to be wonderfully caring and giving and ever so altruistic.

1:36 PM, May 09, 2008  
Blogger Francis W. Porretto said...

This is no real surprise from the Great Democrat Hope. Facts are anathema to one who demands Utopia by Wednesday. The Democrats are inherently susceptible to feelings-based approaches anyway; their belief system privileges feelings, particularly those that support their vision of themselves as morally superior to those who disagree with them.

To be fair, GOP loyalists are demanding that the very conservatives John McCain has treated with contempt must support him anyway -- because he's the GOP nominee.

We have truly entered the era of Zero-Issue Politics.

4:06 PM, May 09, 2008  
Blogger Mark said...

First, let me say, I am an independent. I live in Colorado, a notoriously Purple state. But I call B.S. on all sides of the aisle. In this case, I declare Shenanigans.

I read this column this morning in my Denver Post. It looked like a partial quote. I know how lazy commentators like Harsanyi are apt to simply lift junk from the blogs he's reading, and I know partisan blogs are notorious for taking those quotes out of context in a way that, if repeated, simply become conventional wisdom regardless of truth.

So I looked it up. And [SHOCK] of course Harsanyi's quote is completely out of context. When it's put into context, Harsanyi's "analysis" (if one could call it that) completely loses its meaning.

The original quote was from a statement by Obama after the appointment of John Roberts to the Supreme Court in 2005, explaining why he didn't vote for Roberts.

(Full text of Barack Obama's statement available here: http://www.barackobama.com/2005/09/22/remarks_of_senator_barack_obam_10.php)

Obama states "…adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court." In that respect, Obama goes on to say he believes Roberts would do a fine job. However, Obama explains that 5 percent of the cases are truly difficult, that "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." In those cases, Obama states, "that last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

I doubt there is a thoughtful person who would disagree with this statement. Conservative judges likely approach tough cases in this way. You can't tell me with a straight face that in cases where there is no clear cut constitutional precedent or the language is not clear, that Alito or Roberts or Thomas do not call upon their deepest values, core concerns, or broad perspective to render a decision.

Of course, this explanation won't convince liberal haters or Obama bashers. They will find reasons, legitimate or not, to demonize him. In this case, the real problem is not that empathy is replacing justice, as Dr. Helen supposes, but when in context, it becomes obvious those who disagree are doing so because they assume their own "core concerns", "deepest values" and "broad perspectives" are in opposition to Barack's. But it certainly has nothing to do with preferring "empathy" to "justice".

Harsanyi's claims seem obtuse and borderline libelous. But the lies about Obama have only begun, and Harsanyi has already exposed himself as one who can't be trusted. In proper context, there is nothing radical about this statement at all. Just one more parroted lie by the right-wing gearing up to smear Obama. Conservatives could woo my vote much easier if they weren't so deceptive in their propaganda. I'd also suggest Dr. Helen read the original quote before jumping on the bandwagon. Just makes you look as unreliable as Harsanyi.

11:27 PM, May 09, 2008  
Blogger Oligonicella said...

mark --

"You can't tell me ... Alito or Roberts or Thomas do not call upon their deepest values, core concerns, or broad perspective to render a decision."

I note you left out empathy.

That's the point of the phrase "faithfully and impartially discharge and perform all the duties".

I don't want judges using empathy at all, liberal or conservative. I do not want a judge identifying with either plaintiff or defendant and values, concerns and perspectives need not depend from such identification.

You have mischaracterized Harsanyi, I believe. And yes, I read the originals. You also mischaracterize conservatives when you believe they wish to woo your vote. They already know that can't happen.

7:15 AM, May 10, 2008  
Blogger Helen said...

Mark,

Given your remarks, I doubt you have ever voted "independently" in your life. You obviously have an issue with people disagreeing with Obama's liberal rhetoric. Get used to it.

8:21 AM, May 10, 2008  
Blogger SGT Ted said...

Obamas remark is typical boilerplate for those who prefer to ignore the Constitution to get the "correct" ideological result.

9:53 AM, May 10, 2008  
Blogger Mark said...

This comment has been removed by the author.

10:00 AM, May 10, 2008  
Blogger Mark said...

I noticed you didn't address any of the issues I brought forth. I addressed the "empathy" part of it through my entire post.

To assume "conservative" judges don't use empathy in unclear cases is absurd. It's just that they may "empathize" with a side on a case for different reasons based on their core concerns, broad perspective and deepest values. THAT'S where you have a problem- not that empathy is used, but rather empathy not rooted in conservative bias. Conservatives don't mind judges using empathy at all to render decisions, so long as that empathy leads them to conservative decisions or side with the conservative plaintiff or defense.

So in your rhetoric you may claim to WANT a judge to partake in impartiality, but in the case of the law impartiality is not some lofty goal. It's simply a plea to approach the law equitably, fairly and reasonably.

To claim that in difficult cases where the law is not clear, that an attempt to identify with the plaintiff and defense is not a part of the process of finding an equitable solution in a murky case- you must not have a clue as to the human mind or the law.

In a case where the law is not clear cut, and the consitutional text is not obvious, it is impossible for a judge to NOT make a decision based on the side they identify with. Conservative judges have turned this into a science.

It's obvious to me that you don't mind a judge using empathy, as long as their empathy extends only to conservative values and concerns.

Helen- you didn't point to a single "remark" that would allow you to simply dismiss my comments as not "independent". I simply call it as I see it. I see hypocrisy, stupidity and shenanigans on all sides of the aisle. In this case, the hypocrisy is in your court.

In the end, I may not vote for Obama, but to misuse a quote out of context to mischaracterize his views and then simply dismiss me without regard is certainly not a way to win me over.

And Helen, may I throw the ball back into your court by stating my point is that YOU obviously have an issue with those who disagree with your rhetoric. Get used to it.

10:04 AM, May 10, 2008  
Blogger Oligonicella said...

Your screed was that anyone carping on Obama for his statement was taking it out of context. I plainly wasn't.

"... you may claim to WANT a judge to partake in impartiality ..."

True. And Obama says he does NOT want that. That was my point.

"... you must not have a clue as to the human mind or the law."

And, you drop into ad hominem, the resort of the failed argument.

"It's obvious to me that you don't mind a judge using empathy, as long as their empathy extends only to conservative values and concerns."

Apparently you cannot decipher "liberal or conservative".

11:31 AM, May 10, 2008  
Blogger DvntWriter said...

Francis W. Porretto said "This is no real surprise from the Great Democrat Hope. Facts are anathema to one who demands Utopia by Wednesday. The Democrats are inherently susceptible to feelings-based approaches anyway; their belief system privileges feelings, particularly those that support their vision of themselves as morally superior to those who disagree with them."

I agree with you to a point. Those Democrats who can afford to vote their feelings - those in higher income brackets and uninformed recent voting age kids who have yet to distinguish between an idyllic fantasy and unfortunate reality - vote their feelings.

I am neither, and there are many out there who are neither.

Believe it or not, but there are Democrats out there who haven't fallen for this rhetorical ambush on our emotions that Obama is so good at.

Many out there (but not enough) see through to his lack of substance. We vote not with feelings, but with logic formed formed from engagement in political, policy, etc. matters.

Naturally, there are the extremes on both ends in both parties. They tend to vote with emotion I think.

12:11 PM, May 10, 2008  
Blogger Mark said...

Your screed was that anyone carping on Obama for his statement was taking it out of context. I plainly wasn't.

Wrong. Sigh. This is always the argument I hear when people who aren’t paying attention.”Well you just claim anyone who criticizes Obama is taking what he said out of context.” Incorrect. You don’t know me, you don’t know where my allegiances. I told you I was an independent, and I am. Early in the primaries, my first choice for a presidential nominee was definitely NOT in the Democratic column. There are plenty of things that Obama has said that, IN CONTEXT, I disagree with. This is not one of them.

Harsanyi’s original post took the statements completely out of context, which was that in the tiny percentage of times when constitutional text is not forthright and the law is too vague, one must identify with the problem at hand and those involved (i.e. empathy) and using ones core values and perspective to render a judgment. This was the context of the original quote, and Harsanyi deleted such context and rendered a partial quote, misusing it to make a summary judgment about Obama’s viewpoint on ALL decisions a judge he appointed might render. Thus, the context was incorrect. By the way, Harsanyi totally mislabeled the quote as a response to a “death penalty case”- did he even read the original quote? Hmmmm. I'm suspecting not. Probably got it from the notoriously unreliable Jonah Goldberg

"... you may claim to WANT a judge to partake in impartiality ..."
True. And Obama says he does NOT want that. That was my point.


I think you are misperceiving an out-of-context, partial quote, coupled with an acute misunderstanding of what it means to be “impartial” as a sitting judge. In this case of the original context of Obama’s quote, my reading of his meaning was to mean “empathy” as the “intellectual identification and understanding of one’s feelings, thoughts or attitudes.” To deny that one’s concerns, values, perspective and empathy towards those involved do not shade the way in which judges will render a decision when the law is vague and does not allow appropriation of an obvious answer is a jump that the historical evidence of the judiciary from all political strips simply doesn’t support.

Contrary to your supposition, you fail to define impartiality in such a way where any level of empathy for those involved is not possible. In fact, taken within the original context, Obama is only referring to the “depth and breadth” of the judge’s empathy; he is talking from the perspective that ALL judges, liberal, moderate, conservative, have some kind of empathy involved in decisions when the scope is outside the realm of clear-cut constitutional text, and is only referring to the LEVEL of that empathy. You can disagree with this claim, but it is different from Harsanyi’s or Dr. Helen’s hackneyed analysis. As defined, you have failed to make that case at all.

You as well as Dr. Helen, as well as those in the links have failed to show how, in the context Obama stated, when the constitutional text isn’t directly on point or the language of the statute is not clear, and a decision cannot be rendered upon simple application of the law, how the “identification with and understanding of another's situation, feelings, and motives” (American Heritage) of those involved would disallow an equitable decision.

You have also failed to address my contention that such activity has been regularly performed by conservative-minded judges as a matter of practice. Which would put my view squarely in an area where I believe that in tough, ambiguous, unclear cases, empathy HAS been used by conservative judges, and good decisions HAVE been reached. But perhaps such nuance is lost in an election year.

"... you must not have a clue as to the human mind or the law."
And, you drop into ad hominem, the resort of the failed argument.


Avoiding my entire argument while focusing in on an ad hominem as your “proof” of a failed argument shows how failed your own argument truly is. And if the mere presence of an ad hominem is proof of a failed argument, then many nationally renowned conservative commentators are in big trouble.

I’m still undecided as to how I will vote in November. If McCain can show me that he’d be smarter in choosing judges than he would in keeping the differences between Sunni and Shia straight, I might be inclined to vote for him. But this thread has definitely not built any confidence in the veracity of arguments being built against Obama. I don’t know who anyone on this blog supports, nor what their political affiliations are. But if such weak arguments as set forth in the original post here as well as Harsanyi’s original editorial are indicative of what passes around here for lucid thought, I certainly would have second thoughts about throwing my support behind someone in that same arena.

2:21 PM, May 10, 2008  
Blogger Oligonicella said...

mark --

Obama:
"That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

I disagree with that last phrase. I want impartiality. Your harping on what sitting judges (Conservative and Liberal) do or don't do is moot. Barack is expressing what he believes and wants in a future judge and I disagree with him.

identification with and understanding of another's situation, feelings, and motives”

How about that? Exactly what I said I didn't want.

"...keeping the differences between Sunni and Shia straight..."

Or knowing how many friggin' states we have.

"... I certainly would have second thoughts about throwing my support behind someone in that same arena."

Please. As if there were doubts, your area of purported residence aside.

3:05 PM, May 10, 2008  
Blogger br549 said...

I wouldn't mind a little empathy out of a judge in divorce court. It would take a lot of empathy for males (by a judge) just to swing things to back toward impartiality.

6:11 PM, May 10, 2008  
Blogger Mark said...

It never fails to amaze me that I can repeat the same thing over and over and over and people like oligonicella only hear what they want to hear.

You say:

Barack is expressing what he believes and wants in a future judge and I disagree with him.

You're AGAIN LEAVING OUT THE CONTEXT, because it seems the only way you can create a coherent thought is to latch onto the original distortion and just pretend as though I haven't corrected you SEVERAL TIMES. I will say it AGAIN. The context Obama was referring to, which Harsanyi egregiously omitted, and Dr. Helen ignored, was he was talking about the tiny percentage of cases where judgment based upon constitutional text or the law is not available because the texts don't address the issue or the law is vague.

To apply this specific criteria for one specific instance judges may face, and falsely apply it as a summary criterion Obama looks for in all judges is FALSE and LIBELOUS. Period. There's no getting around it.

You want to disagree with Obama, fine. Then say, in the specific instance of when a judge cannot render a decision because the constitutional text isn't on point or the statute isn't clear, I do not agree with Obama that a judge should rule based on their values, concerns, perspective, or breadth and depth of their empathy.

But what you lack is a legitimate level of discourse where you would successfully explicate what you would have judges rely on during difficult cases where constitutional text isn't on point and the language of the statute is not perfectly clear since that's the context of Obama's statements. What would it be then? Tarot Cards? What the donors to his pals' campaign coffers want? His political bias? A Magic 8-Ball? The tingly feeling under his robe? What specifically?

If, when dealing with the SPECIFIC situation of the CONTEXT of Obama's statement, of having a difficult case where the law isn't clear, the constitutional text doesn't direct,
if not their values, their core concerns, their perspective, their empathy what the hell criteria would you prefer a judge use to direct their judgment? Tea Leaves? Hidden messages in their lattes from aliens? The president's whims?

To claim this quote is a general criteria Obama looks for in candidates is simply FALSE. Doesn't matter that Harsanyi said it- he didn't even know where the partial quote he misrepresented came from. Not surprising, coming from our lazy and incoherent media. Doesn't matter that this Dr. Helen latched onto Harsanyi's incorrect analysis and blindly repeated it. Once it's put in proper context we can have a valid discussion. When you simply repeat the lie of the context over and again, you look like a fool.

You can disagree with Obama all you want. As I said, I disagree with him on many issues. But I also have integrity. Just don't lie about Obama's statements, then disagree with the lie that you fabricated and put in Obama's mouth, and think that's some kind of impressive feat. That reinforces ignorance, rather than reveals any inherent truth.

7:36 PM, May 10, 2008  
Blogger JG said...

Mark,

There is a larger chunk of context that you should also consider: Left-wing, liberal types have a history of pushing / wanting / promoting / appointing (if the Prez) Supreme Court justices who take that whole Constitution thing, and that Marbury vs. Madison thing, with a huge grain of salt.

Strict constructionists are on the right. "Living document" people seem to be on the left (with Ted Kennedy).

People who take a close look at the Griswold vs. Conn. line ending in Roe vs. Wade would rightfully ask, "Why isn't this an usurpation of the legislative powers?". Yeah, I'd ask that too, since it's all made up of whole cloth. The left-wing justices at the time didn't even put up much of a pretense of basing their decision on anything in the Constitution (like they are BOUND to do by the Constitution itself and by Marbury vs. Madison).

You seem to be on a mission with your intense point-making, but have a little understanding for people who believe that the Constitution should either be followed or amended - but the Supreme Court shouldn't make it up as they go along.

Regardless of the precise words that Obama used - people are (rightfully?) suspicious of people like him. You really can't understand that point?

7:51 PM, May 10, 2008  
Blogger Mark said...

Regardless of the precise words that Obama used - people are (rightfully?) suspicious of people like him. You really can't understand that point?

It's easy to shrug off my points with a turn of the phrase "regardless of the precise words that Obama used" when the law is all about precise words.

I can see coming from a rigid ideological perspective how one would be wary of Obama, because they perceive him as not promising to render the perceiver's ideological perspective into the legislative dogma of that land. Sure, if I were looking to stack the courts to favor my partisan viewpoint, in that sense, I can understand that.

But I'm no less worried about McCain appointing judges than Obama. I can't point to a single Supreme Court Justice that hasn't been "activist" in some way, who has gone beyond Constitutional grounds in some fashion, who has interpreted the Constitution in such a way never intended by the Founding Fathers, who has made a decision down partisan lines, or has selectively applied one Consitutional interpretation in one decision, then rendered an opposite interpretation to please a decision in another. Especially the conservative ones, the ones pretending to be strict constructionists, then turning around and obliterating any sensible definition of the term. I'm not happy with any recent choices, especially after their absurd decisions started coming down from on high.

On a different note, I believe it is absolutely necessary for the preservation of our nation to install C-Span like coverage of the Supreme Court. Only then will people become familiar enough with what's going on to do something about it. Until then, the mis-characterizations and lies can just mount up.

8:14 PM, May 10, 2008  
Blogger Oligonicella said...

mark --

I am not ignoring the context, chum. I disagree with his view. I want those few cases decided by rational thought and logic, not emotion or "identifying" with one or the other.

Your court. Just which side of those cases is the judge supposed to empathize with?

"But what you lack..."

Um, screw you. You just don't like my answer. Everything but their empathy. See post 3:05PM, paras 1&2.

"To claim this quote is a general criteria..."

He was listing criteria. Empathy was on his list of the "only" criteria that can determine "that last mile".

Quoting him and highlighting the parts I disagree with is not lying, regardless of your assertion.

"the law is all about precise words"

Yeah. Words like empathy.

8:21 PM, May 10, 2008  
Blogger retireniwnelgyroc said...

Face it Mark, they like people who wouldn't violate a "keep off the grass" sign if their own mother fell off the sidewalk in front of them having a seizure.

They equate justice with stupidity.

9:51 PM, May 10, 2008  
Blogger Mark said...

Oligonicella, I’ve had about enough of you.

You haven’t a clue what “empathy” is, so arguing with you about it is like arguing quantum mechanics with the Amish.

You don’t care a bit about rational thought, as though to be rational about a judgment couldn't include an identification or understanding of the feelings, thoughts and attitudes of those involved. Which is what empathy is, you twit. Rational simply means sensible, reasonable, of sound judgment. To make the claim empathy is devoid of sound judgment, that empathy can’t be reasonable, that empathy isn’t sensible, well you certainly haven’t proven that in the slightest.

It would be logical to search for a human element within a tough case, i.e. understanding where those involved are coming from. If you think deciding rationally about a complex issue in an ambiguous case can be done without having an understanding of the feelings, thoughts and attitudes of those involved, then kudos to you for living in an alternate dimension.

If you don’t think that one can simultaneously identify with those involved in the case AND make a sound judgment, then you’ve created an impossible plateau that NO judge could possibly attain, least of all conservatives, who seem to be the most likely to shoot from the hip when making decisions.

You DID ignore the context until I pointed out Harnasyi’s fatal error. Now that I’ve pounded it into your head, you simply state you didn’t, but only to state otherwise would reveal your inanity.

Your court. Just which side of those cases is the judge supposed to empathize with?

Wrong question. That’s a “when did you stop beating your wife?” question. I reject it outright. Empathy isn’t about “sides”. It’s about understanding the people involved, whoever they may be. Identifying with the human element involved and letting one’s values and perspective lead the way. That’s empathy. And conservative judges render verdicts ALL THE TIME in tough cases based on their own level of empathy. To claim otherwise is just outside the realm of reality.

Quoting him and highlighting the parts I disagree with is not lying, regardless of your assertion.

True. And quoting him out of context and highlighting the parts in the incorrect out-of-context quote that you don’t like due to your misunderstanding of them based on the out-of-context nature that allows for misinterpretation of the original statement, and then continuing to do so long after having it pointed out to you over and again…that’s lying. Or maybe just stupidity. Oh, and trying to pretend that you knew the context of the quote all along in your last post, even though Harnasyi and Dr. Helen both got it wrong, just makes you look even more the fool.

I'm done with you. There's only so many times you can hear a broken record before the repetition becomes monotonous.

11:25 PM, May 10, 2008  
Blogger Helen said...

br549,

"It would take a lot of empathy for males (by a judge) just to swing things to back toward impartiality."

And there's the problem with "empathy." It often only swings one way for certain groups.

5:49 AM, May 11, 2008  
Blogger JG said...

Mark sez:

"It's easy to shrug off my points with a turn of the phrase "regardless of the precise words that Obama used" when the law is all about precise words."

---

Yes, but this isn't a legal argument here. I'll restate what I'm trying to say: People (strict constructionists) are rightfully suspicious of Obama because his prior voting record puts him on the side of the Liberal Democrat / Ted Kennedy / "Living Document"-type people.

As to your point that EVERY justice goes outside of Constitutional principles to make decisions, that's more or less nonsense. Most decisions OTHER than the line of Griswold vs. Conn. to Roe vs. Wade are within constitutional boundaries. The Constitution doesn't prescribe how you come to certain decisions, it prescribes the area in which you should be making decisions. Roe vs. Wade is not a proper area because it is not based on any prohibition or the like in the Constitution - so it's legislating.

If you remember Robert Bork, the left was afraid of him not because he was against abortion but because he believed in interpreting the Constitution as it was meant to be interpreted, meaning the prohibition against abortion would be jettisoned because there's nothing remotely on point in the Constitution to merit that decision.

And he got "Borked" by the left. That's the kind of crap that strict constructionists are worried about.

-----

Now in general, you seem to be all hepped up, almost hysterical, about "winning" here. To such an extent that you can't even take a deep breath and look at the statement I'm trying to make. You have to flip it with quick rhetoric and then go back to calling other people names ("twit") in your manic quest to prove that you're right.

Either you are a heavy Obama supporter, or your individual personality is the "always have to be right" type.

This is just a message board. Getting a stroke over it is not worth it.

I'm not even willing to take the time to closely look at your argument or at the argument of Oligonicella because in the overall scheme of things, Obama MAY WELL really think like the "living document" crowd. If he is being misquoted here OK, but if further statements like that follow on his part, I would get more suspicious of what he thinks of the Constitution.

6:17 AM, May 11, 2008  
Blogger JG said...

Correction:

"prohibition against abortion" => maybe "prohibition against abortion laws" -- that was poorly phrased, but you know what I mean.

6:20 AM, May 11, 2008  
Blogger JG said...

Here's an example of making decisions within the framework of the Constitution (or not):

Most people would consider the "time, place and manner" restrictions on the 1st amendment to be a valid interpretation of the 1st amendment within the boundaries of what the Constitution calls for. They weren't specifically listed in the Constitution, but the interpretation is based on common sense and is something that most people (even the drafters of the Constitution) would agree with. The drafters of the Constitution didn't intend for the 1st amendment to mean that you have a right to stand anywhere you want, any time you want and say anything you want. Obviously.

But contrast that with Roe vs. Wade:

According to the Constitution itself, and Marbury vs. Madison, the legislature is supposed to make the laws. The Supreme Court is supposed to look at those laws and invalidate them IF the Constitution prohibits that kind of law. So if the Congress passes a law forbidding Green Party members from giving their political opinion, that would be a no-no. The Supreme Court says the law doesn't fly.

But the Supreme Court is not supposed to legislate itself. It is not supposed to come up with a mythical prohibition against making abortion laws when there is nothing at all in the Constitution about that. Even the foundation for that - family privacy - is made up out of whole cloth in Griswold and other contraceptive cases.

Most people looking at THOSE decisions would probably agree that the Supreme Court was making it up. The court got away with it because most people don't understand or care about these issues.

The left-wing / liberal Supreme Court at that time did it because they didn't think that an amendment of the Constitution to include that prohibition would go through. They put one over on the people. Nasty stuff.

Strict constructionists simply think that the Constitution should be followed or amended if the people no longer want to follow it. That's pretty clear. The Left, on the other hand, seems to think it's spiffy to get things in through the back door. I don't think that's cool, and they would flip around if the Right started doing the same thing. That HASN'T been the case up to now, despite anything that Mark says.

6:36 AM, May 11, 2008  
Blogger br549 said...

Dr. Helen

That's kind of what I meant. Thanks for drawing it out better.

mark: Just imagine then, what "W" has been putting up with for about 8 years now.

I haven't heard him complain, though.
You?

8:45 AM, May 11, 2008  
Blogger Oligonicella said...

mark --

You haven’t a clue what “empathy” is...
As I quoted your definition back to you and bolded the portion I believe does not apply to law, I obviously do, your assertion to the contrary aside.

Wrong question. That’s a “when did you stop beating your wife?” question. I reject it outright.
It's not a you're already doing it question, it's a which side would you pick question. You reject it because your answer would explicitly betray your leanings.

kudos to you for living in an alternate dimension.
Thanks. I think I wouldn't be comfortable in your odd one.

It’s about understanding the people involved
You can understand them without identifying with them.

...that’s lying.
Yet again, you simply don't like that I disagree with his admiration for empathy in legal decision making.

To claim otherwise is just outside the realm of reality.
There we have the crux of your skewed reality. I never claimed such a thing. Please provide the timestamp of when I did.

jg --

Dammit, don't give him a heads up. This has been fun. I keep imagining the holes he pounding in his keys.

10:18 AM, May 11, 2008  
Blogger br549 said...

In order to keep it simple, I looked up empathy on dictionary.com

It took me a minute, I admit, but there is no place for empathy in a ruling by the justices. In any court proceeding for that matter. Truth is in the Bible. Facts are presented and argued in the court room, weighed against the law of the land.

The only constant in life is change. Many things change. But there are areas where right and wrong, fair and equitable, must forever stand firm.

Although not perfect, those rascally colonials hanging out in Philadelphia new what they were doing. How I wish I could have been there, a fly on the wall.

9:48 PM, May 11, 2008  
Blogger serket said...

If his connections to terrorists and radical preachers isn't enough, now you have this. I guess as long as you pretend to be a decent person, then nothing else matters.

Francis: To be fair, GOP loyalists are demanding that the very conservatives John McCain has treated with contempt must support him anyway -- because he's the GOP nominee.

At least he has done more more conservatism than Romney ever did. Vote your conscience. For the most part, I don't mind voting for McCain.

Mark: To assume "conservative" judges

Do you assume that there aren't any conservatives?

Oligonicella: Or knowing how many friggin' states we have.

Did he get the actual number wrong or was it about the rights allowed in a territory?

If Congress hasn't addressed an issue and it isn't in the Constitution, then ambiguous questions should probably stay in the hands of the people. Mark, perhaps you could give us an example of when a conservative judge would need to use empathy to decide a case.

Here is a statement from Obama about empathy:

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.

Also, here is a transcript from a Democratic Debate in November (on page 40):

And part of what I want to find in a Supreme Court justice -- and Joe's exactly right, sometimes we're only looking at academics or people who've been in the court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court. (Applause.)

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Serket,

Thanks for the links.

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