Obama's Selective Judicial Empathy

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In a 2007 speech before Planned Parenthood, presidential candidate Barack Obama described his ideal Supreme Court justice as somebody who has "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." Legal scholar Richard Epstein thinks that that's a lousy way to pick a judge:

It might be smart politics for Obama to play to his natural constituencies, but intellectually there is, I think, no worse way to go about the selection process. Empathy matters in running business, charities and churches. But judges perform different functions. They interpret laws and resolve disputes. Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice….

I harbor no hope that Barack Obama will appoint someone who accepts my own judicial philosophy. But he is not likely to find the right pragmatic or principled nominee if he follows the standard he announced two years ago.

It's also worth remembering the judicial criteria that Obama laid out during the John Roberts hearings. Explaining why he voted against confirming Roberts to the Court, Obama listed a number of controversial issues where "what is in the judge's heart" should matter. He listed abortion and affirmative action, of course, but he also singled out the question of "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce."

Obama was referring to the post-New Deal trend whereby Congress relies on its constitutional power "To regulate Commerce…among the several states" in order to pass legislation touching on every aspect of American life. As the law professor Randy Barnett has chronicled, by adopting the widest possible interpretation of interstate commerce, "courts have granted Congress a near plenary power to do anything it wills and have thus nearly destroyed the system of limited enumerated powers."

Which is precisely what the Supreme Court did in Gonzales v. Raich, the 2005 decision that struck down California's medical marijuana law in favor of federal anti-drug laws "tangentially related" to interstate commerce. That was a disastrous and deeply flawed ruling, yet it perfectly matches Obama's constitutional vision. But shouldn't he also make some room in his big heart for those folks using medical marijuana to alleviate their pain and suffering? And where's Obama's empathy for Charlie Lynch, a decent man who genuinely helped the sick by operating a perfectly legal (under California law) medical marijuana dispensary? Lynch faces spending the rest of his life in prison because Obama and others want the courts to allow Congress to have the widest possible regulatory powers. There's a word for that, but it's not empathy.

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  1. “Which is precisely what the Supreme Court did in Gonzales v. Raich, the 2005 decision that struck down California’s medical marijuana law in favor of federal anti-drug laws “tangentially related” to interstate commerce. That was a disastrous and deeply flawed ruling, yet it perfectly matches Obama’s constitutional vision.”

    Who’da thunk it–Scalia and Obama have the same “constitutional vision”.

    What a country, huh?

  2. Empathy just means that you do whatever the hell you want to do regardless of the law. There something to empathize with in any court case. Both sides have mothers who love them for God’s sake. Even in a comercial dispute, both sides have investors and creditors who have a right to get their money back. If it were just a question of empathy, we wouldn’t need laws, we could just have Oprah judge every case.

  3. This guy does not exactly enhance the value of a Harvard Law degree.

  4. Justice are supposed to be guided by rationality, not emotion. Obama wants judges who will use emotive arguments to get to the right result regardless of the law.

    Quelle surprise, non? As we see more and more every day, this administration consists of bloody-knuckled Chicago machine politicians for whom the ends justify the means, any means.

  5. The empathy street in Obamaland only runs one way. We’re supposed to empathize with the teenage mom, but not the unborn baby; the “poor or African-American or gay or disabled or old,” but injustice is still injustice even if it affects the rich, or Asian, or hetero, or fully abled, or the young.

    My wife ran into an oncologist at a party where a doctor from a free clinic was hectoring him for working in a swanky hospital instead of serving a needy community. The oncologist’s reply: “Do you think cancer hurts less when you’re rich?”

  6. Here’s another excellent take on Obama’s “empathy” nonsense by Thomas Sowell:

    http://article.nationalreview.com/?q=YjNhMWFhZGIxNWFlNjNkMjQ2MmY5ZjA5ZWI1YWQ3NjU=

  7. This guy does not exactly enhance the value of a Harvard Law degree.

    I disagree. Harvard has a good excuse for this guy – affirmative action. They can just wink and say, “well, you know….”

  8. Of course judges should have empathy for the human beings affected by their decisions – including the unborn human beings. That’s not a disqualification. A disqualification would be to have a limited vision allowing empathy only for one side, while leaving the other side out of the picture entirely – for instance, writing off some people (eg, unborn) as unpersons unworthy of concern.

    Even if a judge has empathy for someone, the judge may still have to rule against that person if that’s what the law requires. But keeping in mind *everyone* who is affected by a decision, and feeling there-but-for-the-grace-of-God-go-I, is necessary if the judge isn’t going to become an inflexible monster looking down with contempt on all the little people.

    Of course, the judge should not regard him/herself as a philosopher king/queen with a special to dispense compassion to lesser folk, like a benevolent despot. That’s the kind of empathy some judges seem to have in lieu of true empathy.

  9. I sure the fuck hope this doesn’t turn into an abortion thread.

  10. Doesn’t EVERY discussion about a Supreme Court pick eventually turn into an abortion thread?

    and just to prove it,
    Hey Mad Max, is a judge supposed to have equal empathy for a unimplanted multi-celled blastocyst and walking, talking, conscious (and taxpaying) human?

  11. Citizen Nothing,

    That may be hard to avoid, when the post involves “a 2007 speech before Planned Parenthood [by] presidential candidate Barack Obama.”

    But I’ll see what I can do.

    Gilbert Martin,

    I’m afraid that Thomas Sowell has bought into the Holmes Myth. Holmes’ positivism certainly allowed for a perverted form of empathy. Check out his Buck v. Bell opinion, and you will see that it exudes empathy for forcible sterilization. The sterilization law may or may not have been constitutional, but Holmes was not acting like someone who was reluctantly upholding a law he detested – on the contrary, he was filled with evangelical zeal for the law.

  12. ‘is a judge supposed to have equal empathy for a unimplanted multi-celled blastocyst and walking, talking, conscious (and taxpaying) human?’

    Since that blostocyst is expected to grow up and help pay off the national debt, including the debt incurred by paying the salaries of federal judges, then you tell me.

  13. What a country, huh?

    I sure hope you typed that with a Yiddish accent.

  14. Justice Holmes’ opinion for the U.S. Supreme Court in Buck v. Bell, upholding a compulsory-sterilization law:

    ‘We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.’

    Does that sound to you like a judge who is reluctantly upholding a law he detests?

    And check this out:

    ‘Recent scholarship has shown that Carrie Buck’s sterilization was based on a false “diagnosis” and her defense lawyer conspired with the lawyer for the Virginia Colony to guarantee that the sterilization law would be upheld in court. Carrie’s illegitimate child was not the result of promiscuity; she had been raped by a relative of her foster parents. School records also prove that Vivian was not “feebleminded.” Her 1st grade report card showed that Vivian was a solid “B” student, received an “A” in deportment, and had been on the honor roll.’

    If you want to find been three generations of imbeciles, you might have to look at Justice Holmes’ family.

  15. Aaaaaaaaaand, they’re offffff!!!

  16. The word to replace empathy I choose to use is “douchebaggery.”

    Used in a sentence:

    Obama displays a whole ‘nuther kind of douchebaggery, yet all too familiar to the asshattery, dumbassery, and fucktardery his predecessor so proficiently displayed on a regular basis.

  17. Perhaps if the right people were in charge of deciding who was an imbecile, this policy would work.

  18. SCOTUS discussions should have *zero* to do with abortion any more. It’s time to get over it. Roe and Casey are, in the words of John Roberts, settled law.

    Pro-life “zealots” need to get off the cross and use the wood to build a bridge and get over it.

  19. How did “old” make that list? Is he suggesting that the elderly are an underrepresented minority on the Supreme Court?

  20. TAO,

    Plessy v. Ferguson was decided by eight votes to one. It was on the books for hald a century before being overruled.

    Swift v. Tyson was decided in 1842. It wasn’t overruled until 96 years later, in Erie RR v. Tomkins.

    Kentucky v. Denniston was decided in 1861. It was 126 years before that case was overruled in Puerto Rico v. Branstad.

    Roe v. Wade is a spring chicken. It was decided thirty-six years ago.

    We can wait.

  21. Abortions for everyone!

  22. Maybe unimplanted multi-celled blastocysts should be tried by a jury of their peers.

  23. The Supreme Court is just a kind of appointive senate, a third house of the legislature, if you will, where every body pretends they are determining the constitutionality of laws while in reality they are endeavoring to defend or destroy or modify those laws. We all know this, we all accept it, but we all pretend we don’t, the way we all pretend Santa Claus is real when kids are around.

  24. Mad Max – then do us a favor and wait. What led to the overturn of Plessy was a paradigm shift in morality and philosophy. Right now, most people are pretty satisfied (or phlegmatic, depending on your POV), so invent a novel philosophical argument and advance it. So far, the only I’ve ever seen out of the pro-life camp is that they want to narrowly draw the line and to hell with the consequences it will have on women, birth control and the safety of society. Also, mucho hypocrisy from you folks.

  25. Mitch,

    I actually heard that the Supreme Court, is like a third branch of the federal government itself, with powers EQUAL to the power of the two branches!!!

  26. I think too many people are looking for code words where none exist..

    Last I checked, he didn’t want empathy to be the ONLY qualification — just that a judge has some empathy. Which I think is a great trait to have if you are a judge.

    You’re decisions aren’t academic. They affect people lives. Not just the ones in court in front of you, but also other people out there. And having some empathy is a good thing.

  27. The oncologist’s reply: “Do you think cancer hurts less when you’re rich?”

    Well probably, but just a little bit. I’d rather be wealthy and doomed than broke and doomed. But we’re all doome; I read that somewhere on this site.

  28. “I’m afraid that Thomas Sowell has bought into the Holmes Myth”

    I doubt it.

    Sowell wasn’t writing a dissertation on whether Holmes actually believed what the law required was good or bad in every case that came before him.

    He was using Holmes stated views of what he understood his job to be to illustrate the proper role of judges. The point is that “empathy” is not a proper basis for applying the law to cases. It isn’t about what Holmes really did or didn’t have empathy for.

  29. There’s a word for that, but it’s not empathy.

    Oh, oh! I know! “Hypocrisy!”

    -jcr

  30. a doctor from a free clinic was hectoring him for working in a swanky hospital instead of serving a needy community

    I would describe the doctor from the free clinic as a selfish prick. There’s nothing more arrogant or selfish than presuming to command other people to do what you want them to do.

    -jcr

  31. Miniature American flags for others!

  32. ‘so invent a novel philosophical argument’

    Novel?

    ‘then do us a favor and wait. What led to the overturn of Plessy was a paradigm shift in morality and philosophy.’

    The opponents of the *Plessy* decision didn’t wait for a paradigm shift; they kept hammering at the foundations of legal segregation until they buckled. Of course, they may have relied too much on the courts – a useful lesson for the prolife movement.

    Of course, there’s not such thing as passively waiting for judges to change their minds. Judges can’t change their minds except in a concrete case, and in the abortion context, that means a challenge to an anti-abortion law. And there won’t be any anti-abortion laws to challenge unless the pro-life movement persuades legislatures to pass them.

  33. *no* such thing as passively waiting

  34. I’d agree that empathy is unimportant except that all sorts of jurisprudence requires judges to consider reasonableness and sliding scales and other things that are inherently not given to being a blind, emotionless passageway through which The Law traverses in a straight line. Common sense and empathy isn’t just about abortion and environmental regulations. It is about the Fourth Amendment as well. Might the Supreme Court justices have had a little different take on school nurses strip-searching 13 year old girls if they had the slightest empathy for what was going through the girl’s mind, or if they could set aside slavishness to the drug war to see how unreasonable it was for school officials to act like that in America? Might we have a different perspective on the supposed professionalism of cops if the Supreme Court justices don’t see anyone convicted of a crime (even in violation of their rights) as someone undeserving of Constitional protection?

  35. Did the 13yr old strip search case get decided yet?

  36. And where’s Obama’s empathy for Charlie Lynch, a decent man who genuinely helped the sick by operating a perfectly legal (under California law) medical marijuana dispensary?

    A minority of one is the smallest possible minority. Very fell people have the conviction to take a stand for a single individual.

  37. There needs to be a cartoon of the commerce clause and the necessary and proper clause gravestones with the epitaph “just plain tuckered out.”

  38. None of the justices has a constitutional primer only accessible to him. Each interprets the constitution in his own way, hopefully with some regard to reason, precedent, and the ability to read English. What I will not accept is that because Scalia and conservatives say they’re originalists that means they understand the constitution better. It’s just a political buzzword.

    So all Obama’s “empathy” philosophy means is that the actual effects of a ruling on real people should play some role in judges’ decision making. If Scalia wants to decide cases based on what he interprets the constitution to mean, fine, but that doesn’t mean he’s doing his job better than someone who has a different interpretation; say, that the role of the government (courts included) is to look out for the general welfare, and not just adhere to some ivory tower philosophical construct for its own sake.

  39. “Hey Mad Max, is a judge supposed to have equal empathy for a unimplanted multi-celled blastocyst and walking, talking, conscious (and taxpaying) human?”

    Can’t let this pass. So, empathy depends on ability to walk? Kill all the disabled. The ability to talk? Kill all the mute. The fact that one pays taxes? There goes about 40% of Americans. As for consciousness? Well, since it is purely subjective, that’s not necessarily a good criterion. Plus, that would mean as soon as you fall asleep, I can kill you.
    And, if you want to get reductionist, aren’t YOU just an unimplanted multi-celled organism? Really, we are all just clumps of cells, right? Just amalgamations of molecules.
    And it seems all you are left with is consciousness as the criterion of when life is legally protected. If so, it seems awfully unscientific to say that simply passing through the birth canal causes consciousness. I don’t know of any study or any plausible neurological theory that would explain that.

    But you are right in one respect. The ONLY reason abortion is legal is that there is a lack of empathy for humans we cannot see. A woman kills her newborn hours after birth and throws him in the trash. The mother gets several years in prison. A woman procures an abortion. It gets paid for by the government and she is considered a hero for standing up to the evil social conservatives. The only difference? We don’t empathize with what we cannot see.

  40. I’m generally what you would call “pro-choice.” As a general rule I’d let people abort blastocysts. But Roe allows more than that.

    Let’s be clear about what you are supporting when you support Roe. Would you allow someone to kill a child by hammering a chisel into their brainstem? If so, which children should be killed in that fashion? Should we kill foundlings in that way? If not… why not?

    Think about it- or not. And maybe I will take a chisel to you.

  41. So far, the only I’ve ever seen out of the pro-life camp is that they want to narrowly draw the line and to hell with the consequences it will have on women, birth control and the safety of society. (sic)

    So far, the only thing I’ve ever seen out of the pro-choice camp is that they want to have no line and to hell with the consequences it will have on women, children and the future of society.

    Hey, two can play this broad-brush game! If that, honestly, is all you’ve seen then you havent had your eyes open. As dpsc points out, the pro-choice zealots are all over the “why do you care about blastocysts” argument but totally mum about the reality that unrestricted abortion on demand (as RvW is commonly construed) has a long arm that reaches deep into even the third trimester and strongly viable fetuses. They also tend to gloss over the fact that overturning RvW does not immediately criminalize all abortion; it simply takes the matter out of the court and leaves it to the States, a place from which many feel, in accordance with the Tenth Amendment, it should never have been moved.

  42. Richard Posner, from “How Judges Think”:

    Another . . . major factor in judicial decisions in the open area [that is, where the language of the law does not prescribe a clear answer] is “good judgment,” an elusive faculty best understood as a compound of *empathy*, modesty, maturity, a sense of proportion, balance, a recognition of human limitations, sanity, prudence, a sense of reality and common sense. . . . It is another of the means that people have for maneuvering in situations of uncertainy. If law were logical, “good judgment” would not be an admired quality in judges – as it is even by legalists.

  43. I don’t think a judge needs specific empathy as enumerated by what was probably a brownie points move. Just basic empathy – to put yourself in something like their position, to understand motivation. Mostly, just understanding the motivation of others. And of course, the ability to reason logically.

    Abortion is such a highly-contentious but badly discussed topic. Most people do not have enough information on the normal everyday reality of the female reproduction system, and only seem to know about the flow-charted set of steps to successful baby production. The reality includes a lot of spontaneous abortion, malformed fertilized eggs, failed implantation, stress-induced cessation, reabsorption, fetus-caused health issues, mother-caused, genetics issues, first-birth effects, previous-birth effects, mother’s condition’s affects, etc. There is no line to draw that the law can hold without exception, or exceptions that it can enumerate fully – until birth.

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