Free Markets, Free People


Obama’s Requirements For SCOTUS

This guy was a Constitutional Law professor?

Yesterday, Obama laid out these requirements for the replacement for Justice Souter:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.

Jennifer Rubin, at Commentary, makes the following point:

The making of laws, which is a legislative function, is all about “the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.” Federal judges decide what those laws mean and whether they conflict with the Constitution.

So it would seem that, as with many on the left, Obama is seeking someone who would be more comfortable in Congress and would certainly be seen as a “activist” justice appointed to legislate from the bench.

Rubin also deftly identifies the real meaning of Obama’s use of the word “empathy” :

You see, empathy is a code word for favoring criminal defendants, plaintiffs, labor and other groups which happen to match up with the liberal policy agenda. It’s a peculiar sort of empathy, otherwise known as bias for litigants based on their identity rather than the merit of their claims.

I believe she’s exactly right – what Obama has outlined as his requirements for the position is a liberal’s wet dream come true but completely confuses the role of the court, judges and legislators to the detriment of the citizens of the United States.

Unfortunately, due to their own failings, about all Republicans can do is, as Martin McPhillips said, whoop, holler and dance around the rim of the volcano for a while. That’s a pity, because given the “requirements”, this and subsequent appointments to the SCOTUS may be critical to our survival as a relatively free people.

~McQ

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26 Responses to Obama’s Requirements For SCOTUS

  • Explaining what he wants in a judge is political; also, there is a strong argument that the meaning of laws cannot be determined solely with consideration of the  words and abstract arguments, but also the impact on every day life — understanding what the law means for people.  I prefer a judge that thinks that way, rather than one who gets lost in abstract legalese, forgetting that what he or she does affects real people.  In fact, I think the biggest error in modern thinking is too much of a focus on pure reason, rather than the mix of reason and empathy — understanding the human side of life. 

    • It’s no surprise that Erb prefers that the law ultimately be decided by the emotions of unelected officials. We’ve known for a long time that Erb sometimes talks about liberty and freedom, but he always betrays his true beliefs in tyranny. Erb is sh!t.

      • Empathy is the key to wisdom — otherwise you just get either a formula (then why have judges, you can have a computer make the decision), or you get emotion and bias.   Reason and empathy render wisdom, that was what, for instance, defined King Solomon in the Bible.  (I make a longer argument about that in my blog today, May 5th).   All laws and all conditions are made in and about humans who have emotional states that are part and parcel of the law and law making.  Empathy is understanding them, and is different than being swayed by subjective emotional bias.

    • What? Empathy is good? But empathy is emotional, not rational or logical! Supreme Court Justices are to use their emotional rapport with the peeps to make decisions? I am shocked, deeply shocked that you would would advocate such a thing.

      Thanks for the laugh.You are indeed a rich source of amusement.

      • Reason without emotion is cold.   Yes, emotion needs to play a role.  It always does — even with you, now.

        • Scott, we expect reason without emotion from out judicial system.  The emotion comes from the legislative side.  If we allow judges to use emotion, we have no law.  We only have the emotions of the judge on a particular day.  The whole idea of the rule of law is predictability.    If the law is not predictable, how can anyone know the consequences of their actions?

          Rick

          • I disagree — again, we could have computers render judgments if there were no emotion and it was pure reason.  Empathy is necessary for wisdom, that gives humans the capacity to make wise judgments, not just follow a formula (again, that issue is my blog entry today).

        • Did you ever why Justice wears a blindfold?

    • “In fact, I think the biggest error in modern thinking is too much of a focus on pure reason, rather than the mix of reason and empathy…”

      Well, of course Erb would think that. Since he lacks the ability to reason, he denigrates its importance. Not the least by accepting the preposterous assertions of post-modernism.

      • I fear you have missed the delicious irony. Usually Erbie rants about the absolute supremacy of reason over emotion, and how emotion taints any idea or argument it is associated with.

        Argument of either type, rational or emotional, is unnecessary to show what an imbecilic twit Erb is.  He does such a fine job all by himself it is only necessary to point to his drivel and say ‘See for yourself’.

    • A friend of mine – a liberal trial lawyer who hates big business, insurance companies, and Republicans – tells me constantly that a big problem with the justice system is exactly the thing Erb advocates: empathy instead of reason in judges. It’s harder for a lawyer to defend a client the more a judge’s whims rather than the law are at issue.

      Scott, is this a partisan position or have you thought this through? Would you still prefer justices “understanding what the law means for people”, instead of words and arguments, if it was a Republican who wanted to appoint theologians to the court? I’m pretty sure such justices would have a different view than you of how laws affect the “human side of life”. Which is why we need to leave empathy to the elected Congress and strive for reason in unelected justices.

      • Scott, is this a partisan position or have you thought this through?

        [wiping a tear from my eye]

        Thanks Zozo, I haven’t laughed that hard in a while.

        • Ha! I did intend that as a real question instead of snark, though. I haven’t been back at QandO long enough to get a handle on Scott Erb’s worldview yet. The last pure partisan I can remember was mkultra.

          • Welcome back Zozo.  mkultra hasn’t been around since last year (as far as I can tell).  Erb is here all the time.  The difference between mk and Erb is simple.  MK always admitted admitted to what he/she/it was.  Erb denies what he is.  If you read his posts last year, you would read that he loves freedom, that Bush was bad, deficits are bad and government was NOT the answer.  Erb you see, is a true libertarian (pardon me – I just threw up a little in my mouth).

            Since TAO has been in office, Erb has been trollng through here promoting Keynesian economics, massive deficit spending, and state control of industry, all the while telling he us he really is a libertarian based on reason. 

            This little bit with the supremes is just the latest go around.  Take anything he writes with a grain (or a pound) of salt.

      • Actually, I oppose judicial activism and have tended to be more comfortable with conservative justices than those on the left.  It has nothing to do with partisanship.   I just note that empathy and reason give you wisdom.  Reason alone, you just need a computer.

        • Scott, thanks for clarifying. I missed before that you were referring to “judges” while the original post referred to Obama’s quote on Supreme Court justices, which are different roles. We may have been thinking about two different things.

          Do you think that Obama is calling for judicial activism in his quote? It ends with, “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role”, which is promising. But the first part about justice and empathy doesn’t seem to fit. He says that, “justice isn’t about some abstract legal theory”, but in our system justice is and must be that. 

          “Justice” as an idea has no formal definition. Beyond requirements in the Constitution, it’s whatever we the people consider to it be. If you ask a rape victim and a neutral jury what justice is, for example, you will get two different answers. Our system seeks justice, within the individual rights noted in the Constitution, through a complex means designed to tend toward the most just outcome. The goal is to mete out justice as determined by the people as best we can. We are not supposed to seat nine King Solomons and hope they rule us with empathetic justice we agree with. We seat nine justices with specific, important roles in a complex legal system that is able to adapt to changing times and views, and is under the guidance of the people. If our system adapts too slowly or is incorrect, it is up to us to fix it through the legislative process. 

          It’s one thing for justices to be human and have empathy for other individuals. I agree that is more desirable than a coldly calculating robot would be. If we are to govern ourselves, then the mechanisms should be “of us”. However, I can’t agree with Obama’s view which seems to go too far: “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” When justices go King Solomon on us, regardless of their intent, it is *wrong*.

    • Given that the daily lives of Obama’s drones will be given greater consideration than mine (redistribution being a zero-sum game), this is not really a selling-point.

    • Laughable, irrational, and predictable.

      Damn precedent, it may no longer needed, judges should examine their inner feelings, examine the plight of the plaintiff or accused, and render judgment not based on the words in the law, but perhaps, the words of a happy song they have in their hearts at the time.

      So in the last week we have from Dr. Erb – legal judgments based on feeling, and the tyranny of the majority is an okay part of a democratic republic!

      I’m optimistic!

      • Anyone care to discuss how the tyranny of the majority might effect how the judge(s) feel(s) during the next, I don’t know, Roe V Wade hearing? 

        Oh, once again, I’m sure Scott ‘FEELS’ that judges would never make a poor decision (provided of course the decision agrees with what Scott thinks is okay….). 

        You know, even though during the Bush administration judges agreed with what Bush wanted to do, or even though the Judges “awarded” George Bush the Presidency way back there in 2000…..You remember THAT one don’t you Scott?

  • A clearer statement that Erb prefers a government of men to a government of laws could not be asked.

    But I’m sure he’s optimistic!

  • What’s the point of having a Supreme Court if all it does is play pony to party politics?  Might as well as just have issues go to Congress for a vote.  People should stop pretending that the Constitution has any meaning left in it.

  • I am no lawyer but isn’t it one of the guiding principles that a law needs to be able to be understood by the commoner. If you write the rules down and they don’t change then I can understand them and at least have a chance at following them. If a judge just make it up as they go  along based on how they feel , how am I supposed to understand the rules in advance.

    • If a judge just make it up as they go along based on how they feel , how am I supposed to understand the rules in advance.

      You’re not. That’s the beauty of the system for the left, because it increases the amount of power in their hands.

      To satisfy such a silly standard, you are required to study and internalize the way *they* expect you to think and feel. You don’t have a choice about it if you want to be a law-abiding citizen. The letter of the law is not enough; you must intuit how they will bend the law because of their own emotional predilictions. Thus it’s a great tool for increasing their capability to indoctrinate.

      Not to mention that they can threaten to punish just about any action they don’t like. No need to get a law passed against it; it’s enough for a judge to “feel” that it’s wrong.

  • Oh yes, one more thing:

    Claiming that our judges need to be emotional in order to be more human is false.

    Correct me if I’m wrong, but isn’t reason the DISTINCTLY human trait we have over other animals?  Whereas even a dog has emotions.

  • I’m just glad to know that TAO has SOME mental requirements for the position.  Seems that almost everything else I’ve read in MiniTru indicates that his only requirements are that the nominee be a minority or a woman, and preferably both.  Seems that he has the idea that only a (insert minority here) can truly interpret the law in cases involving that minority.

  • Erb’s reaction to Salin Palin during the election was sufficient to show he a leftist loon.

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