The Washington Monthly (here; here) is all over the right-wing’s insane attacks on Obama’s notion of an empathetic judge. Here’s a pretty good summation from Dahlia Lithwick:
Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
And, remarkably enough, John Yoo is one of the foot soldiers in the Global War On Empathy, in his new role as a opinion columnist at the Philadelphia Inquirer:
In his 2005 confirmation hearings, Roberts compared judges to neutral umpires in a baseball game. Sen. Obama did not vote to confirm Roberts or Alito, but now proposes to appoint a Great Empathizer who will call balls and strikes with a strike zone that depends on the sex, race, and social and economic background of the players. Nothing could be more damaging to the fairness of the game, or to the idea of a rule of law that is blind to the identity of the parties before it.
Here’s hoping that this war is administered with the same ruthlessness as the Global War On Terror. I say we start by replacing those outdated judicial confirmation hearings with several sessions of waterboarding. There’s no way we’ll really know what nominees think about Roe v. Wade until we’ve subjected them to extreme interrogation.
Stooleo
John Yoo, against empathy….I’m shocked, I tell you, just shocked..
John Cole
You know, while I’m just generally not in favor of trying all these guys with war crimes because I think it will rip the country apart and I’m not sure what it would accomplish, but if charging them will get John Yoo and Dick Cheney out of the public sphere, I will become a supporter.
And since this is the Philly Inquirer, can we charge Santorum with anything, too?
Punchy
How does “Burkean Bells” possibly fit under a posting dealing with judges?
John Cole
I think the only categories DougJ knows are “assholes” and “Burkean Bells.” That is ok, it gives our wingnut fans something to get the vapors about every morning- “OMG, they said assholes!”
Xenos
@Punchy: Because it is privilege masquerading as some sort of principled philosophical position.
TR
Michael Steele is insisting that Obama’s model empathetic judge is Perez Hilton.
It’s like he’s trying to destroy his own party.
TR
And you know, if I were John Yoo and currently in the crosshairs of Obama’s DOJ, I’d probably refrain from publicly giving the administration the finger like this.
Ron Beasley
The associate editor of my local paper, The Oregonian, had a good op-ed this weekend.
Incertus
I understand that the real reason newspapers are having financial trouble is because of the complete collapse of their revenue structure, but damn, hiring people like John Yoo to write for you can’t be helping matters.
schrodinger's cat
DougJ:
There is another candidate for a Burkean Bells post, on the op-ed pg on NYT this morning. I quickly glanced at it but it did not make much sense to me. It is by the affirmative action for wingers candidate on the NYT.
C Nelson Reilly
Please empathize with poor Miss California. Satan with a combover is tempting her right now on my TV. On the day of that fateful photo shoot the wind caused a wardrobe malfunction.
Short Bus Bully
Macho posturing works for picking judicial nominees as well. Who knew?
BTW, interpretting christian scripture on the bench to help make your decision isn’t being an activist judge, no way no how.
This is going to be an ugly and shitty fight.
Argive
Goddamnit. First Rick Santorum and now John Yoo? Philadelphia Inquirer: I grew up reading your paper. Do you remember the days when you published a high-quality newspaper that won a long string of Pulitzers? Those days are long gone, sadly, and my once beloved Inky is now a repository for AP articles and right-wing hacks.
Englischlehrer
Am I such a radical-thinking American to think that someone who helped institutionalize torture with tortured logic has gotten a highly desired column in one of America’s biggest newspapers, newspapers which are dying by the month because they aren’t making a profit to satisfy shareholders. There must be other people on the right side of the spectrum (which somehow now seems dislodged from it’s actual place with respect to voters) whose hands aren’t dripping with the blood and torment that Yoo ivory-towered onto us. You gotta be shitting me. I don’t think there is a left enough space for me on the Beltway’s spectrum to be allowed into polite discussion because I think that people who sat around in expensive suits deciding how to legalize the illegal are just as guilty if not more than the little brown people who scamper across a river and through a jarringly large hole in our “border defenses”. I have become shrill. Today it is a badge of honor, though not one you satisfyingly collect out of shame for the honor’s mere existence.
schrodinger's cat
Regarding John Yoo and Dick Cheney, have these people had their sense of shame surgically removed? Chutzpah they has it.
DougJ
Sometimes I use “media” and “politics”.
The Moar You Know
Fuck John Yoo. Fuck him with a chainsaw.
How that for empathy?
John Yoo’s existence is one of the worst things that has happened to this nation.
RSA
If Congress starts crushing the testicles of nominees’ children, though, I’m going to change the channel.
wasabi gasp
Empathy? Empathy! Get back to me when you can taste the tears of a zygote.
MattF
It’s too much– Yoo is impaired in so many ways that I can’t keep track.
wasabi gasp
@The Moar You Know: Yeah, what you said. Fuck Yoo John. Fuck Yoo.
The Grand Panjandrum
It is the disingenuous nature of the crticism from people like Yoo that I find the most reprehensible. Yoo, who is a very smart fellow, knows what Obama means when using the word empathy. This reminds me of the argument the Creationist use when they say the “evolution is only a theory.” Jesus. Tiresome willful ignorance is the trademark of a good portion of the Right these days.
JL
Meanwhile the MSM covers affairs and Miss California. If they had a hearing on torture would reporters show up?
Al-Libi gave interrogators information about the connection between Saddam and Al Qaeda after being tortured. Torture might give you information that you want but it doesn’t mean it’s true. Now al-Libi committed suicide and MSM spends more time on Carrie Prejean.
Dennis-SGMM
This points out the clear need for someone to develop The Robot Judge.
“Empathy and bias free! Nothing can go wrong…go wrong…go wrong…”
Zifnab
@DougJ: If you used all four, you’d be redundant.
:-p Viewed in the context of the Ledbetter decision and the Meredith v. Jefferson County Board of Education verdict, it’s interesting to hear him say that.
Roberts – in his role as “neutral umpire” – ruled against desegregation and in favor of pay discrimination. Yoo seems concerned that an Obama justice would uphold a “strike zone” that unfairly favors a person on sex by demanding said person receive equal compensation for equal work. He’s worried a person’s race, social, or economic standing may influence a judge to reintegrate a school with the same intensity as it influences a school board to segregate it.
So I can see where a conservative legal scholar might get worried.
jrg
You all clearly don’t remember the outrage from the right when Bush sold himself as a “compassionate conservative”.
Ecks
@John Cole: Going soft on crime John? I remember when that was supposed to be the democrat’s job.
etoipi
– Robert H. Bork
(kudos to Luis of Blog from Another Dimension for finding that quote…
blogd.com/wp/index.php/archives/5972 )
jrosen
The basis of morality as preached by Jesus, Hillel, Confucius, and a lot of others is empathy. “Do unto others” presumes that you can put yourself imaginatively in the other’s place; every parent who is trying to socialize a child does the same asking “How would you feel if….”
Rigid ideological systems that claim to have a single key to the world’s workings (e. g. race, class, “the invisible hand”, “God’s will”, the Flying Spaghetti Monster’s appendages) have no room for this notion; things always get fuzzy around the edges when you consider things from an adversary’s position. Hobbesian capitalism (i. e. the untrammeled “free market”), using the creation and accumulation of wealth as the sole valid human activity, can’t be bothered with messy things like “quality of life”, “happiness”, or “the common good”,all soft-headed, bleeding-heart liberal illusions that just gum up the precise workings of the system. Likewise the law which should hum along with the binary logic of a digital computer, assuring that the system stays on course no matter how many squishy human values get chewed up in the machinery. The interesting question is…where does that course end?
I wonder if people like the “Club for Growth” ever think about the natural limit of growth and what happens when those limits are reached, even if it takes a century to get there.
And what does it augur for our mental health that the values we supposedly learn as we grow up in hopefully loving families…sharing, mutual concern, selfless caring, and empathy…must be totally abandoned and reversed when we enter the “adult” world outside the door?
burnspbesq
@The Moar You Know:
Not very empathetic. What about the poor chainsaw’s feelings at being so cruelly misused?
scav
Neutral, empathy deficient judges wouldn’t fail to apply legal standards “when it would tear the country apart” or fail to apply it in the “too big to fail” cases, but tough on crime isn’t always the same thing apparently. Sometimes it gets all tangled into class warfare and then things Just. Do. Get. Ever. So. Tricky.
The Grand Panjandrum
Here is some push back from Will Bunch also at the Philadelphia Inquirer:
Sullivan has a post up about this as well.
Cris
I’m sick of people pretending that perfectly normal words are secret dogwhistles. Saying that “empathy” means favoring one class of people over another is up there with saying “racist” is a code-word for “Jewish.”
Ecks
Hopefully they just hired Yoo because they thought that having someone “controversial” writing for them, who’s name has been in the news would raise their profile. That only makes them marketing idiots, instead of people who deserve a good waterboarding.
And the reason the repubs don’t understand the need for empathy, is they are authoritarians. Ethics, to them, are all about “our authorities are right, everyone else is wrong, logic and consistency be damned.” Empathy doesn’t really enter into it, it’s just all about us vs. them, with us being de facto and de jure right, regardless of what it is that us actually say.
Slugger
The political climate is so toxic that any benign and ultimately nondescriptive term such as “empathic” becomes a battleground. I am sure that if Obama’s eventual nominee reports that he/she brushes after every meal, Newt Gingrich will come out with a opinion in favor of tooth decay. And realistically if roles were reversed the Democrats would do the same.
I know that snark is fun, but is there anything we can do to elevate the level of discourse in this country other than mocking them?
As far as Mr. Yoo’s opinions, is he being paid by the Philadelphia Inquirer? Would they be interested in a financial advise column from Bernie Madoff?
scav
well, if reality itself bends to what they wish it to be, mere words are equally abject to their decrees. On the upside, that first was Humpty Dumpty’s precept and look what happened to him.
superking
The baseball analogy really angries up the blood. Let’s take the analogy a few steps further. Baseball fans are aware the MLB has been using a camera system, questec, to track how umpires call balls and strikes. Why? Well because the strike zone is actually variable based on the player (that means that different people are treated differently, a clear violation of simplistic notions of equal protection!). Moreover, umpires have different standards for pitches that are in an out of the strike zone. One umpire, for example, may call a strike if the ball passes over the black edge of the plate while another will only call it if the ball passes over the white area.
But in baseball, the strike zone is theoretically stable and balls and strikes could be called by a computer that actually determines the location of the ball when it crosses the plate. That’s what the cameras are set up to do. If the analogy holds, then judges could simply be replaced by law computers. And if so, then there would be no reason to overturn precedent–Roe v. Wade would be safe and secure for eternity.
Does anyone think republicans want that to happen? The fact is that judges aren’t just computers, no matter which side you’re on. The analogy is absurd, and being a good judge requires judgment.
DougJ
Not that I know of.
Karmakin
A lack of empathy means that you’ve already prejudged every case that comes before you. What Yoo says couldn’t be further from the truth.
scav
Insisting that there is a conversation be had (on torture, pre-emptive war, blah blah blah) is almost elevating the level of discourse in this country.
Ecks
@The Grand Panjandrum: Thanks for the addy. I wrote them a letter:
.
Sarcastro
This points out the clear need for someone to develop The Robot Judge.
Elementary chaos theory tells us that all robots will eventually turn against their masters and run amok in an orgy of blood and the kicking and the biting with the metal teeth and the hurting and shoving.
See Antonin Scalia for proof.
Indie Tarheel
@TR:
Expect this to be the epitaph on Steele’s tenure once he’s given the boot. Good enough for Powell, good enough for Steele…
BDeevDad
John Yoo automatically gets the Bill Kristol method of read what he says and do the exact opposite.
Batocchio
What’s funny is that some conservatives clamor about victim’s rights and such. The conservative position seems to be, as always, fight to the death to protect corporations, and put to death racial minorities.
Graeme Frost is probably the most glaring example, but it’s not exactly news that conservatives have been waging a war on compassion for a very long time. It’s the depth and breadth of the pathology that’s new.
Cris
@Sarcastro: As long as the robots eat Jeff Goldblum, I’m okay.
Tax Analyst
Great letter, Ecks.
Ecks
@Tax Analyst: Thanks!
Sinister eyebrow
Yoo should be a pariah. He’s culpable as a war criminal. Why he and his partners in crime are still tolerated by the ABA and the California bar is a complete mystery to me, and a stain on my profession. That he’s given the platform of the Inky to spout nonsense as an authority on anything is a disgrace to journalism.
He is a war criminal and he should be treated as such by civil society regardless of whether he’s prosecuted. As for chutzpah, it a shining example. Any normal person would have retreated from the public eye and attempt to remain unnoticed. Yoo is so lacking in self-awareness and moral compass that he appears to see nothing wrong with anything he’s done and continues to believe that his opinion is respected.
JasonF
A little legal history on this fine Tuesday morning:
Way back in Ye Olden Days, England had Courts of Law, which were charged with hearing legal disputes. Back then, the law was very rigidly applied, and if a plaintiff didn’t meet all of the particular criteria of the law, his claim was denied. As these rules ossified, it became increasingly difficult for aggreived individuals to obtain judicial relief.
So around about the 14th-15th centuries, a workaround was developed. England being a monarchy, even if you didn’t like what the courts were doing (throwing your claims out on hypertechnicalities), you always had the option of petitioning the King for relief. These petitions for relief were delegated to the chancellor, and over time this developed into a more formalized Court of Chancery.
Thus, if you had a dispute with the fellow who was supposed to make a pair of shoes for you, the Court of Law might throw your case out because technically, a contract hadn’t been formed, even though you had paid the cobbler for shoes and hadn’t gotten anything in return. The Court of Chancery, however, was less bound by the rigid rules of the Courts of Law, and would allow you to proceed on an unjust enrichment claim, even though there was technically no contract.
In short, the Court of Chancery was developed to supplement strict application of the rules of law where that strict application would lead to harsh results.
When the land that would become the United States was colonized (primarily by British subjects), this legal system was imported. It continues today at both the state and federal level, although most states and the federal government have abandoned the old law/equity distinction by merging the two courts into one.
All of this is a long way of saying that empathy is a feature, not a bug. The law has recognized for centuries — literally for longer than there has been a United States — that strict application of the law will sometimes lead to harsh results, and that the system should account for this by providing a mechanism to avoid inappropriate harsh results. Now, equity is not carte blanche to ignore the law any time someone is unhappy with the results — there are rules to when equitable remedies are available — but it does mean that judges must be more than simply automatons applying pre-existing legal rules. Any judge who does not appropriately apply the equitable powers of the court is only doing half his job.
By the way, the fact that our legal system derives from the British common law system is also the reason that if a conservative complains to you about judges making law, you should tell the Napoleon-loving jerk to move to France or some other Code-based country. Judges making law has been an inherent part of our legal system since the Days of Yore.
Argive
Superking has it right on the baseball analogy. It’s like these jerks won’t stop at defiling my country, they have to go one step further and mutilate my favorite sport as well. I would point Yoo and Roberts to this wonderful column written in 2005. I especially liked this bit:
I know the man who wrote that column. He’s a far better man than John Yoo (who should be disbarred immediately) could ever hope to be.
Rosali
In all fairness, Yoo was not the Inquirer’s first choice for a column on empathy. Their first choice, John Demjanjuk, was no longer available.
TenguPhule
And then Roberts and Alito both turned out to be crooked.
And why is Yoo being paid to write dribble instead of hanging from a tree?
MattF
Since Yoo thinks the executive can ignore any laws, and presumably, any court decision– what difference does it make if a SCOTUS Justice is empathic? Why not just nominate a horse and get it over with?
jenniebee
Is it just me, or is this not just another part and parcel of their movement’s quest to prove that government doesn’t work? Bureaucracy without empathy is draining all the oil out of the engine of State.
Of course, it’s also of a piece with their cult of rugged individualism. All their ideas about society are either strictly conformist or stridently anti-social; they object on principle to making an effort to get along with other people, and the single most important thing you can do to get along with other people is to put yourself in their shoes once in a while.
Shorter me: this will play well to their asshole base.
dmv
Ok, what the fuck.
I seriously hope people in Philadelphia are giving the Inquirer lots of shit over this.
Just Some Fuckhead
We need to let the world know about John Yoo. I propose nationwide rallies where we let the world know who John Yoo is and what he represents. We shall call them YooHoo Parties. Of course, the media will drink this up because nothing says I’mAPissedOffAmerican like a party featuring tasty beverages and lots of schizophrenia, amirite??
Comrade Kevin
Perhaps Yoo should think of applying to be the next coach of the Flyers.
Ash Can
John Yoo’s column is a prime example of willful misinterpretation of the facts. It dumbfounds me that someone this disingenuous is still employed as a law professor.
@John Cole:
If this were a case and you and I were sitting on the judges’ bench, we’d both be weighing the issue of upholding the rule of law against the likely ramifications of a grave and, in certain important ways, unprecedented situation. Your decision, based on what you say above, would give more weight than mine to these considerable unknowns, while my decision would favor upholding the rule of law. That, of course, is the whole idea behind having more than one judge sitting on the Supreme Court, and having the number of those judges be uneven. Different justices are going to have different interpretations of the law, and those interpretations, while different, will be equally valid given the nature of our legal system.
And it’s this exact reality that Yoo willfully ignores in his column.
Ash Can
@Just Some Fuckhead: BTW, happy birthday. (Love those ads. :D)
Rosali
5 of 6 defendants convicted in “Sears Tower” terrorism case in Miami.
The Moar You Know
@Ash Can: Wow, did not notice until you mentioned it. Those are GREAT!
HAPPY BIRTHDAY, FUCKHEAD!!!!!
Rick Taylor
If we don’t prosecute, then we just have to come to terms with the truth that we are a country that uses torture when it suits us. That’s who we are now, despite Obama’s or anyone else’s denial. Perhaps we’re not torturing under the current administration under the current circumstances, but it’s an option we’re leaving open under a future administration, or under different circumstances (say if we’re attacked again). If we don’t prosecute, then the opposition to torture is a policy matter. After all, we certainly wouldn’t think of prosecuting anyone for cutting the capital gains tax.
Maybe you’re right, and the price of prosecutions would be too high, but the thought of living with the truth that my nation considers torture a legitimate instrument makes me sick to my stomach. But maybe that’s who we are now. We torture when it suits us; the current administration opposes it so that’s good, but there’s debate of course and future administrations may go the other way. It’s a policy matter, reasonable people disagree on; some think shackling people for days on end in diapers to prevent them from sleeping, suffocating them, slamming them around a bit, putting them in a box, maybe humiliating them, is a good idea, and others oppose it. Of course only an ideologue would suggest that someone be prosecuted for what a disagreement on policy! That would be a crime.
TenguPhule
Hence the need to shoot them all and end the debate forever.
asiangrrlMN
I can’t believe I’m quoting Shep Smith, but, “We do not fucking torture!”
goblue72
That would be Oliver Wendell Holmes. Sorry, Oliver “F*cking” Holmes to you Mr. Yoo.
Chief Justice John Marshall, McCulloch v. Maryland (1819)
– whose jockstrap you are not fit to carry, Mr. Yoo.
AhabTRuler
@asiangrrlMN: No, it’s a feature. When your moral touchstone is a Fox News assbag like Shepard Smith, you don’t have to go very far to convince people.
Plus, it’s also awesome to be able to show someone a clip from Fox and be able to say “at least one clown realizes that he is in the circus.”
AhabTRuler
I though they just free-balled it?!
bago
WOOOO!!! TEABAGGING TRUCK NUTZ!
I will not yield to the shift-spring!
Notorious P.A.T.
Isn’t that what we said after Watergate–can’t have a trial because it would tear apart our country? So people like Cheney and Rumsfeld were allowed to crawl back under their rocks and wait for another chance. Well, I’m sure nothing like that will happen this time! ! ! ! ! !
DanSmoot'sGhost
We are what we are regardless of whether we prosecute or not. You can’t govern by prosecution.
Most of the facts on the table now were on the table in 2004 when the country reelected the administration that produced those facts. This is a country that insisted on, elected, and got, a government that threw out constitutional checks on executive power and war powers for more than half a century, demanded security at any cost and basically said, don’t tell us what you are doing behind the scenes to give it to us. A country that let the president laugh at a dinner party about not being able to find the WMDs in March 2004, and still reelected him later that year. A country that knew it had been lied to about the need for the Iraq war, and still reelected the liars.
We are a country that used whatever was necessary to make people feel good about security. If we want to be something different, then we have to vote accordingly.
The government reflects the people. The government will eschew torture when the people want that done and say so at the polls. We seem to be moving in that direction now.
Just Some Fuckhead
@Notorious P.A.T.:
Don’t you remember the terrible time in our country called the Iran-Contra hearings? Leaders assassinated, national guard troops shooting students, firehoses and dogs unleashed on black folks, cities burned to the ground, riots.
Those who do not know the past are doomed to repeat it.
Mike G
the ability to think about the law from more than one perspective.
You lost the Repigs at “ability to think”.
Comrade Kevin
and, in the meantime, we should just forget about the Constitution, the whole federal code, our treaty obligations, etc, because torture hasn’t been sufficiently repudiated at the polls? You really are disgusting.
DanSmoot'sGhost
Two ways to take that. If you mean Cheney and Rumsfeld themselves, they aren’t coming back.
If you are talking about future candidates at the national level who are pro-Unitary-Executive, then you have to vote against them. Because if you elect them, and they think they have license to do WTFTW, all the acting out in the world now isn’t going to stop them. Any more than the convictions of people like G. Gordon Liddy and Oliver North stopped anyone from doing anything later. The main effect was to elevate the amount of money these guys could make as media celebrities.
DanSmoot'sGhost
That ship sailed a long time ago. The secretive executive with its War Powers Act and clandestine operations has not had any noticeable check on its power for about 60 years.
Torture has been repudiated at the polls? Which polls are those, the ones that reelected Cheney in 2004 when everybody knew exactly what those guys had done?
What polls are you talking about? The ones that elected these people to do exactly what the people wanted them to do, or the ones that show that people right now don’t want to go down the prosecution road? Which version of democracy do you support, the one that tries to criminalize government you don’t like because you can’t win the battle of ideas with the voters? What are you, a Republican?
You think it’s “disgusting” to suggest that the people can create the government they want, by voting for it?
WTF is the matter with you?
asiangrrlMN
@Comrade Kevin: I am with Comrade Kevin on this, and I have said this many times. If there is no punishment for these crimes, then the criminals learn that they can get away with it again.
It’s bullshit to say that because we elected them, they should not have to stand trial for committing crimes. We are ‘moving in the direction’ only because the country is so fucked up. Your mentality (to DanSmoot’s Ghost) is the same as letting the free-market correct the errors of the free-market. Not, Gonna. Fucking. Happen. Cheney did what he did this time because he learned from Watergate that it’s not a crime when the president did it. If it’s true, then we should not be extraditing any criminal to another country (say, the last of the SS fuckheads) because, hey, Hitler was democratically elected.
We cannot legislate morality–but we can and should legislate behavior. Otherwise, we shouldn’t have any laws at all.
In addition, if other countries can say about us, “We’re not Gitmo, our prisoners aren’t tortured”, and we do jack-shit about prosecuting our torturers then we have lost any authority to tell other countries what they can and can’t do to our citizens and soldiers–or to their own.
Also, look at Yoo and Cheney. They get to go on doing their thing and spouting their drivel. They are making a mockery of our country (more than they already have). There are soldiers who served time for what happened in Abu Ghraib. What about them? They were damaged in the cover-up. What about the soldier who killed herself after participating in the torture sessions? Shouldn’t they matter?
Cheney, Yoo, and Rummy. Those are my three. I am willing to let the rest of them run free as long as these three (especially the first two) are prosecuted.
P.S. Happy birthday, Just Some Fuckhead. Hope it’s a good one.
asiangrrlMN
@DanSmoot’sGhost: So you’re saying we shouldn’t try at all to hold anyone accountable for anything? I disagree. I will leave it at that.
Except, if you think the ship has sailed on the Constitution, why the hell aren’t you at least wanting to try to get back to it?
Last thing: I didn’t vote for Bush and his ilk, but if Obama pulls half the shit Bush and Cheney did, I will be calling for his head, too.
asiangrrlMN
As to the actual topic at hand, empathy…
@Ron Beasley: I liked this op-ed. I especially like this:
Yup. No John Yoo.
Just Some Fuckhead
Thanks for the birthday wishes. I’m in that lengthy limbo between birthday-as-an-excuse-to-get-drunk-for-three-days and woohoo-senior-discount-let’s-go-eat so I’ve spent the day yawning and fantasizing about a power nap in a hammock under a shady tree.
mtraven
As I pointed out here, the Republicans need to get to work inventing P.K Dick’s Voight-Kampff Empathy Test to ensure that only replicants get to be jurists.
Doph
He just said he wants justice to be blind. Don’t make it in to anything else.
Ecks
Happy birthday Fuckhead. To us you aren’t just some fuckhead, you’re our fuckhead.
;)
priscianus jr
JasonF (No. 50, above) writes:
… empathy is a feature, not a bug. The law has recognized for centuries—literally for longer than there has been a United States—that strict application of the law will sometimes lead to harsh results, and that the system should account for this by providing a mechanism to avoid inappropriate harsh results. Now, equity is not carte blanche to ignore the law any time someone is unhappy with the results—there are rules to when equitable remedies are available—but it does mean that judges must be more than simply automatons applying pre-existing legal rules. Any judge who does not appropriately apply the equitable powers of the court is only doing half his job.
By the way, the fact that our legal system derives from the British common law system is also the reason that if a conservative complains to you about judges making law, you should tell the Napoleon-loving jerk to move to France or some other Code-based country. Judges making law has been an inherent part of our legal system since the Days of Yore.
Good job, pal — and the roots in Western legal philosophy and ethics go back even further than that. I posted this on Booman on May 5th:
What I love about conservative intellectuals is that, as a general rule they are just as boorish and ignorant as their less educated brethren, only they put on a better show. But don’t listen to me. Let’s hear what those well-known bleeding-heart libruls, Aristotle, St. Thomas Aquinas, and St. Antoninus (1389-1459), Bishop of Florence, have to say on this question.
Janet Coleman, in A History of Political Thought: from the Middle Ages to the Renaissance (2000), p.76, writes:
“…Aristotle’s Rhetoric (I, 13, 1374a-b) would have made it clear … that legal statements, being universal and therefore general, are not applicable to each and every case but only to most. Hence, actions which should be leniently treated are cases for prudent judgement and equity, looking not to the letter of the law but to the intention of the legislator; the prudent man’s judgment of particular cases according to his own developed sense of equity is what enables him, in the circumstances, to pardon human weaknesses.”
David Summers, in The Judgment of Sense, Cambridge Unuiversity Press, 1990, p. 268, writes:[Aristotle, in the Nicomachean Ethics says that] Human prudence… arises primarily from experience, is associated with opinion and deliberation, and … might be associated with the vis cogitativa, or particular intellect. … Aristotle also considers a number of kinds of judgment subsidiary to prudence: synesis, for example (which Aquinas calls “bonus sensus”), or gnomon, which is the good judgment of judges.”
….
Saint Antoninus provides a summary of these ideas as they were repeated in the Renaissance. He divides the practical intellect into ethics, economics, and politics. The chief virtue of the practical intellect is prudence, which consists of three parts — inquiring and discussing, election, and setting into execution what has been “well judged.” Prudence is right reason about things to be done — recta ratio agibilium — and Antoninus appeals to Seneca in concluding that it has three parts to which all kinds of prudence listed by Aristotle in the Ethics may be reduced. These are recogitatio or memoratio of the past, ordinatio praesentium agendorum [right ordering of what must be done in the present circumstances] and providentia futurorum.” [foreseeing the likely future outcome]
Brian J
There was a recent article in The New York Times about Diane P. Wood, a former colleague of Obama’s at Chicago who is supposedly high on the list of people to replace Souter. In it, the writer described an interesting where a Ukranian immigrant was supposed to be deported because nobody could find an interpreter for her. She was thus two hours late for her trial and ordered to return to Russia, even though she was from the Ukraine. How she was supposed to communicate with the judge if she couldn’t speak the language remains unclear.
I’m not making this up. Read the article for yourself.
Perhaps this isn’t entirely what Obama thinks of when he imagines using “empathy in a case,” but unless the article cut some pretty relevant information, it shows Wood possessing level of, well, sanity that the other judges involved seemed to be lacking.
Ryan
Yoo’s the last person who should be delivering a lecture on empathy. Empathy, however uninformed, is what’s been keeping him, David Addington, Dick Cheney, Jay Bybee, and all the CIA torturers out of jail. (I.e., “They thought they were protecting us”; “They were torturing those people out of the goodness of their hearts”; “They were just following orders.”)
Surly Duff
Ummm…same things aren’t they?