Empathy Versus Law

[Fieldmouse]

Time now to post this since Obama has now annouced the coward Souter's replacement.

MINORITY VIEW
BY WALTER WILLIAMS

RELEASE: WEDNESDAY, MAY 20, 2009



Empathy Versus Law



President Obama's articulated criteria for his nominee to the U.S. Supreme Court is: "We need somebody who's got the heart to recognize -- 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."

What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee's job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? Let's look at it using this year's Super Bowl as an example.

The Pittsburgh Steelers have won six Super Bowl titles, seven AFC championships and hosted 10 conference games. No other AFC or NFC team can match this record. By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals. Or, would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You'd probably remind him that the league makes the rules, not referees.

I'm betting that most people would agree that football justice requires that referees apply the rules blindly and independent of the records or any other characteristic of the two teams. Moreover, I believe that most people would agree that referees should evenly apply the rules of the games even if they personally disagreed with some of the rules.

The relationship between Supreme Court justices and the U.S. Constitution should be identical to that of referees and football rules. The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions. That's why Lady Justice, often appearing on court buildings, is shown wearing a blindfold. It is to indicate that justice should be meted out impartially, regardless of identity, power or weakness. Also, as Justice Oliver Wendell Holmes said, "Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts." The legislative branch makes the rules, not judges.

Interventionists often make their case for bending the rules based on the unfairness of outcomes such as differences in income, education and wealth. After all, how can the game of life possibly be fair when some people's yearly income totals in the hundreds of thousands, even millions of dollars, while many others scarcely earn twenty or thirty thousand dollars? Some people find that argument persuasive but it's nonsense. Income distribution is an outcome and fairness cannot be determined by outcomes. It's the same with football. The Steelers winning six Super Bowl titles and Arizona winning none is an outcome and cannot be used to determine football fairness. Fairness in either case must be settled by process questions such as: Were the rules unbiased and evenly applied? If so, any outcome is just and actions based on empathy would make it unjust.

Walter E. Williams is a professor of economics at George Mason University. To find out more about Walter E. Williams and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

COPYRIGHT 2009 CREATORS SYNDICATE, INC.

[kevin1]

Osama has also publicly stated that he sees nothing wrong with appointing someone who has no background in law to the bench, does anyone else see a problem there? Who voted for this azzhole anyway? [:@]

[ipscshooter]

Obama's from Chicago. Perhaps he could simply declare the Cubs winner of the next 5 World Series. In the interest of fairness, of course...

[C. Davis]

ORIGINAL: ipscshooter

Obama's from Chicago. Perhaps he could simply declare the Cubs winner of the next 5 World Series. In the interest of fairness, of course...

Being born and reared a good St. Louis Cardinal fan, I would have to say that's probablythe Cubsbest chance foranotherone.2008 marked a 100 year drought for the cubbies, and I am more than happy to see another hundred years for the blue whiners.[8D]

C. Davis

[ipscshooter]

ORIGINAL: C. Davis

Being born and reared a good St. Louis Cardinal fan, I would have to say that's probablythe Cubsbest chance foranotherone.2008 marked a 100 year drought for the cubbies, and I am more than happy to see another hundred years for the blue whiners.[8D]

C. Davis

I hear that a lot from Cards fans. They seem to enjoy being "reared"...

[C. Davis]

[:-]

ORIGINAL: ipscshooter

I hear that a lot from Cards fans. They seem to enjoy being "reared"...

Wrong thread.... [:-]

[Fieldmouse]

No independent comment?

[ipscshooter]

Ann Coulter is a tad abrasive at times, but, more often than not, she hits the nail squarely on the head...

I Feel Your Pain. Not Theirs. Yours. by Ann Coulter
05/27/2009

God save us from liberal "empathy." After President Barack Obama announced his empathetic Supreme Court nominee this week, Judge Sonia Sotomayor, we found out that some people are more deserving of empathy than others.

For example, Judge Sotomayor apparently "empathized" more with New Haven, Conn., government officials than with white and Hispanic firefighters who were denied promotions by the city on the basis of their race.

Let's hope she's as empathetic to New Haven residents who die in fires fought by inferior firefighters as a result of her decision.

In the now-famous firefighters' case, Ricci v. DeStefano, the New Haven Fire Department administered a civil service exam to choose a new batch of lieutenants and captains. The city went so far as to hire an outside consultant to design the test in order to ensure that it was job-related and not racially biased. (You know, just like all written tests were pre-screened for racial bias back when we were in school.)

But when the results came in, only whites and Hispanics scored high enough to earn promotions.

Such results never entice Democrats to reconsider their undying devotion to the teachers' unions that routinely produce students who can't read, write or do basic math. Obviously, disadvantaged children from single-parent homes suffer the most from inadequate public schools -- and their tragic outcome bedevils the entire society for the rest of the students' lives.

Instead, Democrats hide the failure of government schools by punishing the high-scoring whites, Asians and Hispanics, who presumably learned everything they know at home. (If only successfully applying a condom were relevant to firefighting, public school graduates raised in single-parent homes would crush the home-learners!)

So naturally, New Haven city officials decided to scrap the exam results and promote no one.

Seventeen of the high-scoring whites and one high-scoring Hispanic sued the mayor, John DeStefano, and other city officials for denying them promotions solely because of their race.

The district court ruled that there was no race discrimination because the low-scoring blacks were not given promotions either -- citing the landmark case, One Bad Apple v. The Rest of the Barrel. (That's the sort of sophistry we're taught in law school.)

Concerned that Sotomayor's famed "empathy" might not shine through in cases such as Ricci v. DeStefano, the Democrats are claiming -- as Obama spokesman Robert Gibbs said on MSNBC -- that she was merely applying "precedent" to decide the case. You know, just like conservatives say judges should.

This was an interesting claim, in the sense that it was the exact polar opposite of the truth.

To be sure, there is "precedent" for racial discrimination by the government, but Plessy v. Ferguson was overturned in 1954 by Brown v. Board of Education. If Sotomayor had another case in mind, she wasn't telling: The lower court's dismissal of the firefighters' case was upheld by Sotomayor and two other judges in an unsigned, unpublished opinion, titled, "Talk to the Hand."

Not only that, but Sotomayor's fellow Clinton appointee, Jose Cabranes (who sounds like an "empathetic" fellow), issued a blistering dissent from the appellate court's denial of a rehearing specifically on the grounds that the case "raises important questions of first impression in our Circuit -- and indeed, in the nation."

A "case of first impression" means there's no precedent. If there were a precedent, it would be a case of, at least, "second impression."

If it were merely "empathy" that explained liberal judges' lawless opinions, one might expect some liberal judges to have empathy for the white and Hispanic firefighters being discriminated against today, and others to have empathy for the hypothetical black firefighters discriminated against in times past.

But all liberals only have empathy for the exact same victims -- always the ones that are represented by powerful liberal interest groups. As Joe Sobran says, it takes a lot of clout to be a victim.

Thus, the media and Democrats seem to find successful Hispanic attorney Sotomayor much more "empathetic" than successful Hispanic attorney Miguel Estrada.

After aggressively blocking Estrada's nomination to a federal appeals court during Bush's first term solely on the grounds that he is Hispanic and was likely headed for the Supreme Court -- according to Senate Democrat staff memos -- now Democrats have the audacity to rave that Sotomayor will be the first Hispanic Supreme Court justice!

If Sotomayor is not more empathetic than Estrada, liberals at least consider her more Hispanic -- an interesting conclusion inasmuch as Sotomayor was born in New York and Estrada was born in Honduras.

Forty-four of 48 Senate Democrats voted to filibuster Estrada's nomination to the D.C. Circuit Court of Appeals, with congressman and professional Hispanic Raul Grijalva assuring them that just because "he happens to be named 'Estrada' does not give him a free ride."

The truth is liberals couldn't care less about Sotomayor being Hispanic. Indeed, liberals often have trouble telling Hispanic people apart, as James Carville illustrated on "Good Morning America" Wednesday morning when he kept confusing Miguel Estrada with Alberto Gonzales.

"Empathy," in Liberalspeak, is nothing but raw political power.

[Alsatian]

If the constitution is outdated, there is a mechanism for updating, refurbishing, and refreshing the constitution -- amendments. I don't see why judges even think about the need to revise the clear meaning of black letter law to "adapt it to today's society." The adapting, if needed, should be provided by the legislators and/or conventions of state governments, not judges, as spelled out in the constitution.

Just to offer a different view on this subject of adapting the stuffy old laws or our constitution to the modern world and refurbishing the out-dated decor of our body politic, Plato took the view in "The Statesman" that frequently changing laws leads citizens to disrespect the laws, leads citizens to the natural conclusion that laws are conventional and conventions change like the direction of the winds. I find this argument entirely persuasive. Thus, it causes me no heartburn to contemplate the difficulty change and the slow evolution of our constitution. This is fitting. Let us deliberate long and hard before we make a change. Let the grounds for changing be so overwhelming and universally granted by all that even the sticky conditions for modifying the constitution are satisfied before we make a change. I don't want some freaking judge with an axe to grind to supplant and sabbotage the deliberately dampened machinery for changing the constitution.

[falcon]

DidCoulterdiestforget to tell her listeners and readersthat Big Daddy Bush appointed Sotomayor to a federal judgeship?