"He does surround himself with a lot of different viewpoints. He then just votes left."

Damon W. Root | May 11, 2009

Writing in yesterday's New York Times, Charlie Savage contrasts Barack Obama's tenure as a "pragmatist" law professor with his solidly liberal Senate record for clues into Obama's forthcoming Supreme Court nominee. As Savage puts it, "Mr. Obama's voting record suggests a more ideological approach to the courts than he has portrayed." That certainly matches something former Reason Foundation Government Affairs Director Mike Flynn told Reason.tv last year. Looking back on his own experience working with Obama in the Illinois statehouse, Flynn noted, "He does surround himself with a lot of different viewpoints. He then just votes left."

Savage also makes a good point about Obama's inconsistent statements regarding judicial philosophy:

As a freshman senator, Barack Obama accused one of President George W. Bush's judicial nominees of changing her approach from case to case to ensure outcomes favorable to powerful parties, like property owners. That one-sided record, he said, showed a mission of "not blind justice, but political activism."

But in another floor speech soon afterward, Mr. Obama seemed to emphasize a different ideal than blind justice. Judges should "recognize who the weak are and who the strong are in our society," he said, because hard cases will turn on factors like "the depth and breadth of one's empathy."

Whole thing here. Mike Flynn's Reason.tv comments here. My criticism of Obama's selective judicial empathy here.

Comments

|5.11.09 @ 1:14PM|#

But in another floor speech soon afterward, Mr. Obama seemed to emphasize a different ideal than blind justice. Judges should "recognize who the weak are and who the strong are in our society," he said, because hard cases will turn on factors like "the depth and breadth of one's empathy."

No legal scholar, I've always thought that legal cases should turn on something like, y'know, the fucking law. Silly me.

Illinois Sucks|5.11.09 @ 1:19PM|#

""He does surround himself with a lot of different viewpoints. He then just votes present."

Fixed that for ya, Mr. Flynn.

Tomcat1066|5.11.09 @ 1:28PM|#

Just what we need, a Justice that "feels" their way through cases rather than look at the law, the Constitution, and things like that. So I guess Obama doesn't think of us as a nation of laws, but a nation of "feelings"?

HammeredHead|5.11.09 @ 1:37PM|#

Wow, I am sure Harvard is proud of this moron. I wish YouTube had video of him teaching constitutional law. That would sure be a knee-slapper.

Cheif Justice Oprah|5.11.09 @ 1:38PM|#

"So I guess Obama doesn't think of us as a nation of laws, but a nation of "feelings"?"

You get a favorable ruling! And you get a favorable ruling! And you! And you! And you! And you get a favorable ruling!

MNG|5.11.09 @ 1:42PM|#

You can't give a more fair reading to that? Like, not that the law should be ignored, but when and where interpretation is needed it should be one formed by empathy towards how a ruling will effect average every day people living under the ruling?

|5.11.09 @ 1:49PM|#

"but when and where interpretation is needed it should be one formed by empathy towards how a ruling will effect average every day people living under the ruling?"

But empathy to whom? As they say everyone has a mother. Take Obama's Crysler bankruptcy shakedown. Yes, all those poor union workers need jobs and pensions. How on earth could we not be empathetic to them and make those greedy creditors give up a few billion out of thier expense account and buy one or two fewer yahts and give some poor retired, disabled, union worker a break. Right?

But of course those hedge funds get their money from somewhere. They get their money from average people's 401Ks and pension funds and annuities and life insurance companies and all sorts of things that the failure of which would effect lots of average people's lives. So, making Crysler pay is also an empathetic position. Every courst decision is an empathetic position because someone has to win. Really when Obama says empathy, what he is saying is "decides the way I want it decided" and nothing else.

MNG|5.11.09 @ 1:51PM|#

Well, John, saying that it's hard to decide where to come down in any specific case even if empathy is a factor is not the same as saying that empathy shouldn't play a role.

|5.11.09 @ 1:51PM|#

For great social justice!

MNG|5.11.09 @ 1:52PM|#

I always find Damon Roots articles to be informative, agree or not. What I would like to see from him is a post on who he thinks a good SCOTUS pick would be for Obama from libertarian criteria, of course given he is going to pick a Democratic nominee. In other words, who among the appellate or state high courts and are Democratic nominees would be the most libertarian pick?

Paul|5.11.09 @ 1:52PM|#

favorable to powerful parties, like property owners.

Hey cool. I just became a "powerful party".

Paul|5.11.09 @ 1:55PM|#

Silly me.

Yes, silly you. It's about outcomes, not the law.

|5.11.09 @ 1:56PM|#

Criticizing Obama's "empathy" stance is predicated on the idea that conservative justices only apply the law blindly, which is bullshit. If a case reaches the supreme court that means it's probably controversial how the law applies in that instance. All empathy means is that the real-world effects of a ruling should play some role in the justices' decision making, and I don't see how you can adequately apply justice without taking that into account.

KT|5.11.09 @ 1:56PM|#

I'm not really into bitching about stuff he says just because I don't like the sound of it. I prefer to bitch about actual lame things he's done like putting the kibosh on vouchers in DCPS.

Nipple Slip|5.11.09 @ 1:56PM|#

"How on earth could we not be empathetic to them and make those greedy creditors give up a few billion out of thier expense account and buy one or two fewer yahts and give some poor retired, disabled, union worker a break. Right?"

Look. What just happened is amazing. Our government bought the UAW controlling interest in Chrysler and paid for it with your tax dollars. At this very moment, Alexander Hamilton is experiencing a case of the incredibly dry heaves.

|5.11.09 @ 1:56PM|#

He does surround himself with a lot of different viewpoints. He then just votes left.

That's what the left refers to as "thoughtful and considered opinion".

|5.11.09 @ 1:57PM|#

With great power comes greatly ambiguous expressions of that power. Take that, Peter Parker!

|5.11.09 @ 1:59PM|#

"Well, John, saying that it's hard to decide where to come down in any specific case even if empathy is a factor is not the same as saying that empathy shouldn't play a role."

I work in investment management. My job is difficult, but clear since I have a clear defined goal. I must enter into transactions that maximize the long-term rate of return of my investors money. That is all.

If I worked as a scientist, my job would also be difficult but clear. I must search for objective truth, irregardless of political considerations.

It is very easy to get bogged down in discussions of empathy, secondary effects, public policy etc, in all fields. In my field, for example, Warren Buffett could use his large amount of assets to influence firms to act in ways that he thought were politically beneficial. But he doesn't. He is a great investor because he keeps his eye on the ball and is always thinking about maximizing value.

If you are a judge and you even begin to let considerations other than the law into your analysis, you have already lost. You just don't know it yet.

MNG|5.11.09 @ 2:05PM|#

"If you are a judge and you even begin to let considerations other than the law into your analysis, you have already lost."

That's nuts. Everyday judging seems to involve considerations that are not always found in the statute or amendments at play (like purpose and intentions of provisions, public policy, elementary ideas of fairness, canons of construction and interpretation, etc).

kinnath|5.11.09 @ 2:05PM|#

Gee, I almost wish now that the morman android made it past the first few primaries last year.

MNG|5.11.09 @ 2:06PM|#

Of COURSE no judge should let his or her empathy run willy-nilly crazy in defiance of the plain instructions of statutes, amendments, precedent, etc. We are talking about having empathy where there is room for it.

kinnath|5.11.09 @ 2:08PM|#

We are talking about having empathy where there is room for it.

You use reason to interpret the law and making a finding.

You may apply empathy when applying that finding to the losing side.

MNG|5.11.09 @ 2:10PM|#

"You use reason to interpret the law and making a finding."

That's certainly not true with our legal traditions. Equity jurisprudence for example was created for when someone who clearly deserved redress did not meet some formal part of a cause of action.

robc|5.11.09 @ 2:13PM|#

In other words, who among the appellate or state high courts and are Democratic nominees would be the most libertarian pick?

While neither of the bold positions, Cass Sunstein?

MNG|5.11.09 @ 2:15PM|#

Good point robc, I didn't mean to exclude anyone. But I'd love to see a libertarian examination of possible picks.

|5.11.09 @ 2:15PM|#

"That's nuts. Everyday judging seems to involve considerations that are not always found in the statute or amendments at play (like purpose and intentions of provisions, public policy, elementary ideas of fairness, canons of construction and interpretation, etc)."

Not if you are a good judge.

MNG|5.11.09 @ 2:17PM|#

The shame about someone like Sunstein, or anyone who writes a lot like Epstein for example, is that they will never be picked. They have dared state their positions on subjects, and for each position an interest group would be enraged...It's sad.

T|5.11.09 @ 2:18PM|#

While neither of the bold positions, Cass Sunstein?

Might as well be explicit about the nanny state.

robc|5.11.09 @ 2:20PM|#

MNG,

I have heard Sunstein's name thrown about (although specifically NOT to replace Souter), which is why I brought him up. Not that I would support him. :) However, compared to anyone else I have heard thrown about, he seems to be the best.

Unless I am missing someone, he seems to be about the best libertarians could hope for from Obama.

robc|5.11.09 @ 2:22PM|#

Might as well be explicit about the nanny state.

Yep. That is why I cant support him. At least he is open about it and relatively minimalist.

Nipple Slip|5.11.09 @ 2:22PM|#

" We are talking about having empathy where there is room for it."

Exactly!

Take cocaine sentencing for example. White powsered cocaine sniffers tond to have high-paying jobs and big houses in the suburbs. They, on balance, are a benefit to the community, so they should get off lightly when busted with powdered cocaine.

Now on the other hand, those useless, crackhead, rock smoking niggers in the ghetto...

It all makes sense now. Thanks, MNG! You have opened my eyes!

The Angry Optimist|5.11.09 @ 2:23PM|#

even though Posner's a Reagan appointee, he did just defend the stimulus, so hey, can we count him as an Obama fave?

Regardless, the best libertarian choices (Posner, Easterbrook, Rogers-Brown, Kozinski) are all Republican appointees. Alas.

MNG|5.11.09 @ 2:24PM|#

Nipple Slip
WTF are talking about?

The Angry Optimist|5.11.09 @ 2:25PM|#

he/she is talking about utilitarianism in the law, MNG!

MNG|5.11.09 @ 2:26PM|#

TAO
I honestly don't know much about many Democratic appointees on the federal or high court state benches by name, and I don't think it wil be any full time law prof. I do like Posner, Easterbrook and Kozinski very much. But as you say, it ain't going to be one of them.

|5.11.09 @ 2:26PM|#

If you knuckleheads think that Obama might appoint someone who isn't a statist of "very heavy duty proportions"*, I'd like some of whatever you're taking now, please.

* name that quote!

MNG|5.11.09 @ 2:26PM|#

Yeah TAO, but that ain't empathy for the weak. Just the opposite.

High Every Body|5.11.09 @ 2:28PM|#

former Reason Foundation Government Affairs Director Mike Flynn

Former? That LA Times backed coup at Reason goes deeper than I ever imagined . . .

T|5.11.09 @ 2:28PM|#

At least he is open about it and relatively minimalist.

I don't see what's minimalist about "we're going to screw you anyway, so we might as well do it the least intrusive way possible". Or have I misinterpreted his much-vaunted "libertarian paternalism"?

MNG|5.11.09 @ 2:28PM|#

Epi
Whoever he appoints will of course fall pretty low on the libertarian scale of course. My point is that there might be someone out there who is, say, on a scale of 1-10 with 10 being Hayek on steroids and 0 being Karl Marx, a 3 on the scale which would be better than a 1. I'd like to know if Root knows of such a person.

MNG|5.11.09 @ 2:30PM|#

""we're going to screw you anyway, so we might as well do it the least intrusive way possible""

I dunno, but to take your metaphor, wouldn't you rather be forced to give a man a hand job than have him fuck you in the ass? Maybe there is no difference there for you, but....

(High Every Body please don't answer, "both" is not the answer I'm looking for")

Nipple Slip|5.11.09 @ 2:31PM|#

"Nipple Slip
WTF are talking about?"

Applying empathy to the sentencing process. I have a shit load of empathy for white folks.

|5.11.09 @ 2:31PM|#

In my experience, the worst decisions seem to be made when the judge/justice is straining to reach a preferred result. Let's remember that the only thing restraining the judiciary is the tradition of following the rule of law. If they aren't bound by that, then they aren't bound by anything. Once the judiciary is seen as unlimited in power, then, of course, the other branches will start doing whatever the hell they want to do, too.

libertarian democrat|5.11.09 @ 2:32PM|#

Every time I see libertarians whine about "libertarian paternalism" it makes me wince.

Yes, it's not libertarian in terms of our political philosophies. But generally speaking, most of the policy recommendations are about 10000000x less bad than pretty much anything else currently going on.

If libertarian paternalism was the framework used to decide on what sort of laws and regulations to make, we would live in a far more free society than we do.

|5.11.09 @ 2:34PM|#

Empathy tempered by realism is something I desire in a lawmaker. Legal reasoning is something I desire in a judge.

I don't want a referre to have empathy for long suffering Cubs fans when the play the fuckheads from the the Bronx. I want decisions based on the rules of the game. Is it really that effin' hard to comprehend?

T|5.11.09 @ 2:34PM|#

I dunno, but to take your metaphor, wouldn't you rather be forced to give a man a hand job than have him fuck you in the ass?

I'd rather not get forced to do anything, but that's just not an option. Instead, how about we cut down on the the things government forces us to do? Sunstein fails on both these questions. He thinks it's perfectly okay to make people do things for their own best interest, which is not a position I can support for a judicial nominee.

MNG|5.11.09 @ 2:34PM|#

"Judges should "recognize who the weak are and who the strong are in our society," he said, because hard cases will turn on factors like "the depth and breadth of one's empathy.""

Nice equivocation there Nips!

Pro L
You'd be surprised how much I might agree with you. I prefer Holmes and Hugo Black as models, not Brennan or Brandeis. they at least preached judicial restraint unless there was some explicit language otherwise.

J sub D|5.11.09 @ 2:35PM|#

Make that umpire vice the misspelled referee.

Libertarian purist|5.11.09 @ 2:35PM|#

"If libertarian paternalism was the framework used to decide on what sort of laws and regulations to make, we would live in a far more free society than we do."

But not REALLY free, so fuck it!

|5.11.09 @ 2:36PM|#

MNG,

the fact that the cases are so close is what makes empathy such an empty term. If they were not close cases and it really were some kind of fairy tale good versus evil, then maybe empathy be relevent. But it never is. Take any controversial Supreme Court topic and you can make an empathetic argument equally well for both sides.

High Every Body|5.11.09 @ 2:37PM|#

Like T, my vote is neither. You ignorant moronic Leftoid faggot.

MNG|5.11.09 @ 2:38PM|#

John
I see your point, but that's why Obama informed his empathy with empathy for the weaker party. That makes it less meaningless.

For the record I think in the long run a measured judicial restraint usually helps the weak.

MNG|5.11.09 @ 2:39PM|#

You mean neither while you are giving him head, High. I see, it's your arguments and views you like contorted, not your body...

Nipple Slip|5.11.09 @ 2:40PM|#

"Yeah TAO, but that ain't empathy for the weak. Just the opposite"

Empathy for the weak but not the strong is equal justice under the law? Too funny.

MNG|5.11.09 @ 2:41PM|#

TAO
I expect you to chatise High Every Body for his choice of epithet now...

MNG|5.11.09 @ 2:41PM|#

"Empathy for the weak but not the strong is equal justice under the law? Too funny."

I guess you'd find the Old Testament Prophets funnier than Dane Cook then.

robc|5.11.09 @ 2:44PM|#

Sunstein's biggest problem isnt his libertarian paternalism - but his support for FDR's 2nd bill or rights, including a "right" to health care.

The only way to have a right to health care is to enslave doctors.

robc|5.11.09 @ 2:45PM|#

MNG,

Everyone is funnier than Dane Cook. Including Dat Phan.

|5.11.09 @ 2:46PM|#

Judging based on your feelings is fine, so long as The Right People are doing the judging.

|5.11.09 @ 2:46PM|#

MNG asks: You can't give a more fair reading to that? Like, not that the law should be ignored, but when and where interpretation is needed it should be one formed by empathy towards how a ruling will effect average every day people living under the ruling?

Oh, you mean like when an administration's lawyers wrangle with a vaguely written law on torture and it's interpretations so that they don't ignore the law, but use empathy towards our every day people's safety?

Nipple Slip|5.11.09 @ 2:47PM|#

"I guess you'd find the Old Testament Prophets funnier than Dane Cook then."

(76 font) WTF???

MNG|5.11.09 @ 2:47PM|#

robc
He's not great like Dave Atell or Dmitri Martin, but he can be funny. But point taken.

Gotta run now for a while, High, it's safe to come out now sweetie!

Nipple Slip|5.11.09 @ 2:49PM|#

"Gotta run now for a while"

Not surprising.

kinnath|5.11.09 @ 2:50PM|#

When the referees start choosing sides to ensure a just outcome, it is no longer a fair game.

|5.11.09 @ 2:51PM|#

We shouldn't confuse "empathy" with "sympathy." All Obama means is that it helps for a judge to appreciate life circumstances. The problem with a lot of political philosophies is that they are based on life experiences of people completely disconnected from the experiences of others. It's much less likely that justice is going to be well applied in a case involving a gay person if the judge has never met a gay person, since the tendency is to treat people or circumstances you have no experience with as abstractions.

|5.11.09 @ 2:52PM|#

I guess you'd find the Old Testament Prophets funnier than Dane Cook then.

Ever see Ike Barinholtz's impression of Cook? Fucking great. And brutal.

Nipple Slip|5.11.09 @ 2:54PM|#

"Judges should "recognize who the weak are and who the strong are in our society," he said, because hard cases will turn on factors like "the depth and breadth of one's empathy.""

Obama, the anti-social darwinist.

|5.11.09 @ 2:56PM|#

I kind of hate to admit it, but MNG makes some very good points about empathy in jurisprudence. It clearly does have a role to play. In fact, I would argue that some of the best decisions handed down by the Supreme Court and by other lower courts owe a great deal to empathy. There is a legl phrase, "Shocks the conscience of the court." In the absence of empathy, how could the court have a conscience?

Your Favorite Queer|5.11.09 @ 2:57PM|#

"It's much less likely that justice is going to be well applied in a case involving a gay person if the judge has never met a gay person, since the tendency is to treat people or circumstances you have no experience with as abstractions."

That's just bullshit.

Kiss Kiss!
YFQ

Fascitis Necrotizante|5.11.09 @ 2:57PM|#

Anyone want to take a guess where a judge meeting Obama's empathetic standards would've sided on Kelo? With the little old lady, right?

|5.11.09 @ 2:58PM|#

"I see your point, but that's why Obama informed his empathy with empathy for the weaker party. That makes it less meaningless."

But that is problematic to. The weaker party is not always the most deserving party. I think the problem is that in asking for empathy, you are asking judges to make decisions that should be reserved for legilsatures and exectutive and ultimately the voters. Take an issue like environmental law. On the one hand you have a weak party, say a land owner, suing a strong party, a local chemical factory the land owner claims is polluting his land. The land owner is the weaker party, but 100s of people depend upon the factory for jobs. How high of a standard should we hold the plaintiff to? I think that is a question best worked out through the electorial process, not a judge empathyzing with the little guy.

|5.11.09 @ 2:58PM|#

The problem with a lot of political philosophies is that they are based on life experiences of people completely disconnected from the experiences of others.

For example, I find that the currently reigning political philosophy is generally espoused and implemented by people who have never had the life experience of owning and running a business. Our President, for example, has never functioned outside of a pretty pretty narrow circle of lefty-lib academics and the bloody-knuckled Chicago machine.

High Every Body|5.11.09 @ 3:00PM|#

The weaker party is not always the most deserving party.

Exactly. Foreclosures are a good example too.

|5.11.09 @ 3:00PM|#

I want decisions based on the rules of the game. Is it really that effin' hard to comprehend?

No. There remains the problem however, that the "rules" are purposefully skewed. In theory there is supposed to be extra burden on the prosecution or "home" team (innocent until proven guilty). In reality, the "visiting" defense is handicapped by the fact that if the home team acts in collusion (i.e., improbable cause warrants, poor evidentiary standards, coerced confessions, shoddy lab work, falsified evidence/testimony, etc.) to obtain the "win" there is little they can do.

The Haynes affair as noted in Reason gives just one extreme example.

Sound legal reasoning is paramount, but the day that a judge forgets there are real people involved - victims, wrongly, and rightly accused - is the day they need to find another line of work.

|5.11.09 @ 3:04PM|#

Also cases that reach the supreme court are often ones in which statutes don't neatly apply or there are contradictory lower court rulings. We wouldn't need judges at all if their role could be served by putting the facts of a case into a law-savvy computer and having it spit out a ruling.

Defense Attorney Prepping Clie|5.11.09 @ 3:05PM|#

Come on now. If we're gonna get you off you've really gotta work on your sad face, because the judge is going to need to understand what drove you to burn all those little kids with gasoline. You've got to look sadder. Show me the pain of your childhood. Let it come through. There. That's it. You're getting it. But a little more downcast with the eyes. That's it. Much better. Much better.

robc|5.11.09 @ 3:06PM|#

Anyone want to take a guess where a judge meeting Obama's empathetic standards would've sided on Kelo? With the little old lady, right?

So, is Obama going to appoint a Scalia or a Thomas?

libertarian democrat|5.11.09 @ 3:10PM|#

Sunstein's biggest problem isnt his libertarian paternalism - but his support for FDR's 2nd bill or rights, including a "right" to health care.

The only way to have a right to health care is to enslave doctors.

Very true. I don't like his positions much, although I don't think he would be a particularly harmful Justice. I just think people overreact like crazy to the whole libertarian paternalism stuff.

Elemenope|5.11.09 @ 3:19PM|#

"It's much less likely that justice is going to be well applied in a case involving a gay person if the judge has never met a gay person, since the tendency is to treat people or circumstances you have no experience with as abstractions."

That's just bullshit.

Kiss Kiss!
YFQ

That's demonstrably not true, YFQ.

|5.11.09 @ 3:20PM|#

Fascitis Necrotizante : "Anyone want to take a guess where a judge meeting Obama's empathetic standards would've sided on Kelo? With the little old lady, right?"

Well played sir!

Kinda puts the lie to MNG's/ leftist's obsession with democat/ liberal 'empathy' for the everyday guy , doesn't it.

renniejoy|5.11.09 @ 3:20PM|#

Empathy is deciding that a thirteen year girl should not be strip-searched because of "drug-free" schools.
Or did I misread that thread?

Your Favorite Queer.|5.11.09 @ 3:26PM|#

"That's demonstrably not true, YFQ."

Blocked at work. Is it about a judge ruling unfairly on a case involving a gay person?

robc|5.11.09 @ 3:27PM|#

lmnop,

I have an interesting counterexample, but alas, it is at home and I cant find it via google and dont want to screw up the names (in case Im remembering wrong).

How is that for a lame teaser.

phalkor|5.11.09 @ 3:29PM|#

Who is my favorite queer?

robc|5.11.09 @ 3:29PM|#

YFQ,

Bowers. Justice Powell.

High Every Body|5.11.09 @ 3:33PM|#

Who is my favorite queer?

MNG? How many guesses do we get?

Your Favorite Queer.|5.11.09 @ 3:35PM|#

"Bowers. Justice Powell."

Can you add a little context? Are you saying that Powell based his 1986 Bowers v. Hardwick vote on the fact that he never met a gay person?

"Who is my favorite queer?"

Why me of course!

Kiss Kiss!
YFQ

The Angry Optimist|5.11.09 @ 3:36PM|#

let's knock off the homophobia. There's nothing wrong with homosexuals, HEB. man.

Your Favorite Queer.|5.11.09 @ 3:36PM|#

"MNG? How many guesses do we get?"

Not a regular here.

- YFQ

|5.11.09 @ 3:42PM|#

R C Dean : "The problem with a lot of political philosophies is that they are based on life experiences of people completely disconnected from the experiences of others.

For example, I find that the currently reigning political philosophy is generally espoused and implemented by people who have never had the life experience of owning and running a business. Our President, for example, has never functioned outside of a pretty pretty narrow circle of lefty-lib academics and the bloody-knuckled Chicago machine.

I second this thought.

Maybe ,Obama's social study class never taught that there are three distinct branches of government that have check and balances built in ,and of these three the judicial is the last place you would want 'empathy' to be a factor in decision making. That is what the legeslature is for. But , then it is probably easier to stack the court with 'empathic' judges that think of 'empathy' the exact way that you do , and not the infinite other ways that voters might.

Bluto|5.11.09 @ 3:43PM|#

"Are you saying that Powell based his 1986 Bowers v. Hardwick vote on the fact that he never met a gay person?"

It's just an argument someone put forth. There's no proof at all that his decision hinged on "not knowing any homosexuals". It's all make believe.

|5.11.09 @ 3:44PM|#

TAO,

Technically, HEB is not expressing a fear of homosexuality, but rather attempting to cast homosexuality as non-normative. He is being hetereosexist.

It's because his mother would put a clothespin on his wee-wee every time he had a naughty chub.

Bluto|5.11.09 @ 3:44PM|#

"Maybe ,Obama's social study class never taught that there are three distinct branches of government that have check and balances built in"

Oh, he damn well certainly knows. Why do you think he got out of the legislative branch as fast as he could?

T|5.11.09 @ 3:49PM|#

There's nothing wrong with homosexuals, HEB.

Really, that's just another stereotype, TAO. Doesn't it depend on the individual? I know plenty of gays who voted for Obama. Surely that can be considered something wrong.

The Angry Optimist|5.11.09 @ 4:05PM|#

ha ha. I should say "there's nothing inherently wrong with homosexuality as a trait (or lifestyle choice, whatever the science may bear out)"

High Every Body|5.11.09 @ 4:11PM|#

It's because his mother would put a clothespin on his wee-wee every time he had a naughty chub.

That was your mom and I charged her extra to do it too ;)

High Every Body|5.11.09 @ 4:12PM|#

Technically, HEB is not expressing a fear of homosexuality, but rather attempting to cast homosexuality as non-normative. He is being hetereosexist.

This is true. Perhaps the High in my handle can be changed to Heterosexist?

Elemenope|5.11.09 @ 4:14PM|#

lmnop,

I have an interesting counterexample, but alas, it is at home and I cant find it via google and dont want to screw up the names (in case Im remembering wrong).

How is that for a lame teaser.

LOL, I'm in suspense! :)

It's just an argument someone put forth. There's no proof at all that his decision hinged on "not knowing any homosexuals". It's all make believe.

No, it's just an argument that his law clerks put forth after having discussions with him during the case that indicated he didn't know shit about homosexuality--could not wrap his head around the specific notion of guys liking other guys for sex but not chicks--and thought he didn't know any gay people (even though one of his clerks was, hilariously, a closeted gay person).

Bluto|5.11.09 @ 4:20PM|#

"No, it's just an argument that his law clerks put forth after having discussions with him during the case that indicated he didn't know shit about homosexuality--could not wrap his head around the specific notion of guys liking other guys for sex but not chicks--and thought he didn't know any gay people (even though one of his clerks was, hilariously, a closeted gay person)."

So to summarize, no.

Bluto|5.11.09 @ 4:22PM|#

"and thought he didn't know any gay people (even though one of his clerks was, hilariously, a closeted gay person)

Me, I just assume everyone is a closeted gay until there demonstrate otherwise.

Powell Law Clerk: "Can you believe that idiot Powell? I'm a closeted gay person and that moron justice thinks he doesn't know any queers! That is TOO FUNNY!"

Bluto|5.11.09 @ 4:23PM|#

there = they

|5.11.09 @ 4:23PM|#

I don't see the problem in having a homosexual replace Souter. Seems like a zero-sum outcome to me.

Kindle|5.11.09 @ 4:30PM|#

"Powell Law Clerk: "Can you believe that idiot Powell? I'm a closeted gay person and that moron justice thinks he doesn't know any queers! That is TOO FUNNY!""

Only a liberal could overlook the irony here.

|5.11.09 @ 4:30PM|#

There remains the problem however, that the "rules" are purposefully skewed.

Generally, rewriting the rules is the province of the legislature, not the judiciary.

Overturning a statute because it is unconsitutional is not rewriting the rules, it is applying the Constitutional rule.

In reality, the "visiting" defense is handicapped by the fact that if the home team acts in collusion (i.e., improbable cause warrants, poor evidentiary standards, coerced confessions, shoddy lab work, falsified evidence/testimony, etc.) to obtain the "win" there is little they can do.

Most of what you cite is a violation of the rules. Some of these violations involve judges, it is true, arguably, judges who feel a little too much empathy for the victims of the crime, and not enough for the accused.

"Empathy" as it is being used in this discussion is pretty much a disguise for outcomes preferences, outcomes that need the rules to be bent or disregarded in order to be reached. That is pretty much the definition of bad judging, in my book.

|5.11.09 @ 4:33PM|#

"Empathy" as it is being used in this discussion is pretty much a disguise for outcomes preferences, outcomes that need the rules to be bent or disregarded in order to be reached. That is pretty much the definition of bad judging, in my book.

Another way to look at it is that "empathy" is a corrective to the bad judging that happens when judges suffer from stereotypes and abstractions that result from a lack of experience.

wingnutx|5.11.09 @ 4:34PM|#

"Judges should "recognize who the weak are and who the strong are in our society,"

John Edwards would have a field day in this court.

Kindle|5.11.09 @ 4:38PM|#

"Another way to look at it is that "empathy" is a corrective to the bad judging that happens when judges suffer from stereotypes and abstractions that result from a lack of experience."

I call strawman. It's not as if we're recruiting federal judges from our high schools. They have an undergrad degree, and a JD (likely both from liberal schools) and years of experience in the law.

Kindle|5.11.09 @ 4:43PM|#

Empathy for the little guy?

As is sadly the case for all good things, the video website Hulu.com may well come under attack by the government, specifically in the form of antitrust action by the Obama administration.

Socialism's great horde of media apologists has begun a strong drumbeat calling for the U.S. government to go after Hulu, the immensely and increasingly successful source of online streaming media content.

Cord Blomquist of the Competitive Enterprise Institute documents the socialists' campaign for a government attack on Hulu in an excellent article at the Technology Liberation Front website*. "Many media commentators are already using the kind of language we associate with past media antitrust cases," Blomquist notes.

* http://techliberation.com/2009/05/04/should-hulu-brace-for-antitrust-action/

|5.11.09 @ 5:04PM|#

I call strawman. It's not as if we're recruiting federal judges from our high schools. They have an undergrad degree, and a JD (likely both from liberal schools) and years of experience in the law.

Repeat draft dodger Dick Cheney is one of the most experienced people in politics, yet he had no problem sending thousands of soldiers to die in his little imperial crusade. Perhaps if he'd ever set foot on a battlefield he'd me a little more judicious in his willingness to use armed force.

Kindle|5.11.09 @ 5:09PM|#

"Repeat draft dodger Dick Cheney is one of the most experienced people in politics, yet he had no problem sending thousands of soldiers to die in his little imperial crusade. Perhaps if he'd ever set foot on a battlefield he'd me a little more judicious in his willingness to use armed force"

WTF? Buy a brain, kid. Obama is sending tens of thousands of additional troops to die on the battlefields Afghanistan and yet he himself has never set foot on a battlefield either. You are one dumb motherfucker.

T|5.11.09 @ 5:24PM|#

Perhaps if he'd ever set foot on a battlefield he'd me a little more judicious in his willingness to use armed force.

Yeah, maybe if he'd been more like FDR or Lincoln... Oh, wait, neither of them set foot on a battlefield either.

So you're saying you want military service as a prerequisite for political office at the national level? Because that sure sounds like what you're saying to me.

MNG|5.11.09 @ 5:27PM|#

"So you're saying you want military service as a prerequisite for political office at the national level? Because that sure sounds like what you're saying to me."

That's because you're retarded or something T, cuz only a retard thinks that's what Tony is saying by reading the actual words in his post.

Kindle|5.11.09 @ 5:29PM|#

"That's because you're retarded or something T, cuz only a retard thinks that's what Tony is saying by reading the actual words in his post."

Wait a minute, make that two dumb motherfuckers.

T|5.11.09 @ 5:35PM|#

That's because you're retarded or something T, cuz only a retard thinks that's what Tony is saying by reading the actual words in his post.

No, MNG, he's trying a variation of the chickenhawk argument, which is completely nonsensical. Sometimes, to point out the flaws in your opponent's reasoning, hyperbole is helpful.

So fucking what if Dick Cheney never set foot on a battlefield? Don't we have civilian control of our military for a reason? Yes? If it does matter, then what's implied is only military or former military should be making decisions about the use of military force. Is that really the kind of country you want to have? Don't we have a whole building full of military guys who can advise the executive and legislative branches on the issues? If so, why does it fucking matter? It doesn't, it's a cheap shot, and it's a ridiculous argument. I scorn it and anyone who makes it, and also anyone who defends it.

Thus, MNG, I heap scorn upon you and the horse you rode in on. What you do with the horse is your own business, as long as it's behind closed doors.

|5.11.09 @ 5:49PM|#

All I'm saying is that it can't possibly be a bad thing for overlords in government to have some experience/nuanced understanding of the lives their actions affect. Civilian control of the armed forces is a good thing, but I can't help but notice that political leaders such as Colin Powell who've actually served in uniform have a much more cautious approach to the use of force. This is simply an analogy to the "empathy" factor in judges. Obama apparently has little patience for ivory-tower jurisprudence that leans more heavily on abstract philosophy than on actual justice in people's lives.

Kindel|5.11.09 @ 5:55PM|#

" Obama apparently has little patience for ivory-tower jurisprudence that leans more heavily on abstract philosophy than on actual justice in people's lives."

So in other word's we change Lady Justice's motto to "Justice is Empathetic? How much you think that blindfold will bring on ebay?

Dumb motherfucker.

Justice Is Blind|5.11.09 @ 7:33PM|#

I second Kindel's comment above.

Lady Justice wears a blindfold for a reason.

If you have "empathy" you cannot have justice, because it implies you know which side supposedly deserves empathy. This supplants laws designed by popular representation for the whims of a few tyrants in a courtroom.

If society wants "empathy," they need to make explicit what the objective criteria of "empathy" are in the laws. Otherwise, this term is just Barack Obama's code word for "they should do whatever the hell they want, just as long as it advances leftist political causes."

Mad Max|5.11.09 @ 9:42PM|#

'Of COURSE no judge should let his or her empathy run willy-nilly crazy in defiance of the plain instructions of statutes, amendments, precedent, etc. We are talking about having empathy where there is room for it.'

That's true. Truth is truth whoever says it, even if it's MNG.

In re Obama's comment about judges needing to "recognize who the weak are and who the strong are in our society,"

(a) Unborn children are weak, Mr. President.

(b) For that matter, anyone in court facing a federal judge is 'weak' in comparison to the federal government. Even the richest CEO in the universe has to tremble at the prospect of a vindictive judge throwing him in prison or taking away his property.

Therefore, a federal judge's empathy should extend to *everyone* who appears before him (or her).

Fascitis Necrotizante|5.11.09 @ 9:54PM|#

All I'm saying is that it can't possibly be a bad thing for overlords in government to have some experience/nuanced understanding of the lives their actions affect.

Obama. Private sector.

MJ|5.11.09 @ 10:24PM|#

"Once the judiciary is seen as unlimited in power, then, of course, the other branches will start doing whatever the hell they want to do, too."

Some might argue that this has already happened.

|5.11.09 @ 11:47PM|#

which side supposedly deserves empathy

I think you're still confusing empathy and sympathy.

Obama. Private sector.

By private sector you of course mean huge industries. I think they've got their own backs, and government has had it as well to the exclusion of everyone else for a long time.

John Tagliaferro|5.12.09 @ 6:28AM|#

Kindle,

Nice handle!

MNG and Tony seem to be competing for the Perez Hilton role on this blog.