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Should Appointment to the Supreme Court Hinge on Empathy?

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The United States Constitution is silent as to the qualifications of Supreme Court justices. An illiterate ninety year old citizen of North Korea suffering from senile dementia and on life support could, consistently with the Constitution, be nominated by the President and approved with the advice and consent of the U.S. Senate. Fortunately, that seems quite unlikely to happen. In any event, there being none, this article is not about the Constitutional qualifications of Supreme Court justices.

Recently, President Obama indicated that in deciding upon a nominee to replace Mr. Justice Souter, he will look most closely at those who are unusually empathetic, probably toward whatever groups he has in mind. I assume that's what he means, because most everyone is empathetic toward someone or some group, but most have more empathy toward some than toward others. I assume that he will not look for someone with great empathy toward the Klu Klux Klan or even Tea Party proponents.

President Obama is being urged to lean more toward "empathy" than experience by some of the higher-ups in his party.

Some of the senators who will conduct confirmation hearings for Justice David Souter's replacement think it's time for a nominee who hasn't served on the federal appeals court. For all nine of the current justices, the appeals court was a final stepping stone to the Supreme Court.

"I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.

It appears that President Obama feels much the same way:

He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.

As White House press secretary Robert Gibbs put it, Obama is looking for "somebody who understands how being a judge affects Americans' everyday lives."

Not really coming to grips with the idea of "empathy," Oliver Willis in an article in Huffington Post and probably elsewhere, opined that President Obama should nominate a "liberal," more than likely meaning "leftist," and with sufficient Democrats in the Senate, his appointee will be approved.

We need someone who is solid as a rock on civil rights, right to choice, limits on corporate power, and an overall progressive viewpoint on the Constitution, our laws, and the overall role the court has to play.

My gut says that President Obama understands all this, and the last 100 days have led me to believe that at the end of the day his choice will fit the bill.

Thomas Sowell, writing here, here  and elsewhere, disagrees.

That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Before attempting to discuss the impact of "empathy," and left-right orientation versus judicial experience, it seems useful to attempt to define the rather different jobs of lawyers, of academic types, of Federal appellate court judges and of Supreme Court justices. Surely, we need to have some idea of what these folks are expected to do in order to decide what their qualifications should be.

Much of the work done by the Supreme Court is quite similar to the work done by other Federal appellate courts. The main difference is that the Supreme Court can overturn the decisions of lower Federal (and sometimes, state) courts, while only the Congress and the President, acting together, can nullify a decision of the Supreme Court. The Supreme Court can overrule its own past decisions, but rarely does so directly. Unlike decisions of the lower courts, Supreme Court decisions become, at least for a while, the law of the land.  Although a decision by, for example, the Court of Appeals for the Fifth Circuit, becomes the law of the land in so far as all lower Federal courts within the Fifth Circuit are concerned, it does not bind the Federal courts in the other circuits. One of the fundamental reasons for the Supreme Court to take a case is a split among the Federal circuits; when it does so, what it says, provided it is not dictum (extraneous language unnecessary to its decision), binds the Federal courts in all circuits. The Supreme Court thus can have far greater impact on the United States as a whole than can any other court in the land.

In deciding the cases before them, Federal appellate courts are charged with resolving at least some of following issues:

Factual Matters.

Appellate courts rarely overturn the fact findings of trial courts except when those findings are egregiously inconsistent with the record below, are based on things erroneously admitted in evidence, or fail to take into account things improperly excluded from evidence.

The Meaning of the Statute or Statutes Involved:

Many appellate cases involve some element of statutory interpretation. Some statutes are clear on their face, and some are not. In the absence of appropriate clarity, a court must decide what the statute was intended to mean when enacted. There is some latitude here, but not much; that latitude does not properly extend to consideration of what the statute would probably mean if more recently enacted, or what it should say were it to be passed now. To divine the meaning of a statute, courts look at its history and at what other courts have said it means. If one reasonable interpretation would raise a serious question of its constitutionality and another reasonable interpretation would not, a court will generally prefer the latter: Constitutional issues are generally sought to be avoided to the extent possible. Sometimes, a court will have to decide whether a statute was applied consistently with its legislative history, otherwise reasonably and, occasionally, "fairly." From time to time, it is also necessary to determine whether the statute was applied in an unconstitutional way.

Constitutional Issues.

There may be some automobile mechanics who would prefer to rebuild an engine than merely to replace the spark plugs, because they can earn more money that way. If they earned the same amount of money, the great majority would probably prefer simply to change the spark plugs, even if they might enjoy the challenge of an engine rebuild. Few of the vast number of cases arriving for appellate review raise substantial Constitutional issues, and there are fewer in which such issues cannot be got around; that is what courts generally try to do. However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies — and now, possibly, the empathies — of the judges may come into play.

The criterion I consider most important for a Supreme Court justice is experience as an appellate court judge. All of the current justices served as Federal Court of Appeals judges; I do not know of any recent prior justice who did not serve a similar apprenticeship. The Supreme Court is not a suitable place for the sort of on-the-job training which would be essential for a new justice lacking experience as an appellate court judge. In my view, it is an even worse place for on-the-job training than the White House. At least the President has cabinet members and others to advise him, and at least some of them have relevant experience. A Supreme Court justice has only his clerks to do his grunt work. He can discuss cases with them and with his brother justices. Beyond that, he is pretty much on his own. Without appellate court experience, a justice would most likely be lost. For one of the nine justices of the most powerful court in the country, lost is a bad place to be.

I do not think that experience other than as an appellate court judge is adequate. Even extraordinarily broad, lengthy and excellent experience as an advocate is not very helpful; indeed, it can be harmful, since the functions of judges and of the attorneys practicing before them are very different. Attorneys representing clients have an ethical obligation to do their best to present compelling arguments for the views of the law and of the relevant facts most favorable to the private (or, some cases, public) interests of their clients. They come to a case with their minds made up as to the desired result. It is not their function to ponder whether the greater good for humanity might result were the other side to win.

Unlike attorneys functioning as advocates for their clients, judges and justices do not have clients whom they have an ethical duty to represent as best they can. Their proper function is to uphold the law, regardless of whether as legislators they would have voted for or against it. They also have an obligation to follow legal precedent as established by the judges at courts superior to their own. If a superior court has held that a statute is unconstitutional or otherwise unenforceable, they are bound by that decision, like it or hate it. One of Thomas Sowell's excellent articles linked above and here, points to the views of one of our better justices, Oliver Wendell Holmes.

After voting in favor of Benjamin Gitlow in the 1925 case of Gitlow v. People of New York, Holmes said in a letter to a friend that he had just voted for "the right of an ass to drool about proletarian dictatorship." Similarly, in the case of Abrams v. United States, Holmes' dissenting opinion in favor of the appellants characterized the views of those appellants as "a creed which I believe to be the creed of ignorance and immaturity."

Mr. Justice Holmes did exactly what, in my opinion, an unelected Supreme Court justice should do. He did not attempt to usurp the proper functions of the elected Congress or of the elected President by legislating to substitute his views of the world for theirs.

Nor, in my view, is academic excellence likely to be adequate preparation in the absence of experience as an appellate court judge. It is one thing to teach about the law, quite another to practice law as an advocate, and as noted above, practicing law is quite different from being a judge. Many law professors have profound knowledge of specialized areas of the law and of legal philosophy. Neither is adequate. By analogy, a professor of aeronautical engineering may know all that there is to know about wing design and how to achieve maximum engine thrust without increasing engine weight or fuel consumption. Indeed, he may know how to design an entire airplane. That does not mean that he would be a desirable pilot to fly a large commercial aircraft full of passengers; for that, an experienced airline pilot with years of experience as a copilot would be desirable. An aeronautical engineer with experience of that sort might become a good pilot, but there is no particular reason to assume that he would. Unlike an academic or an aeronautical engineer, the guy flying the airplane needs be make very important split second decisions, and the only way of which I am aware to learn that skill is through training in the real world environment.

A good judge is first and foremost a good technician. So is a good surgeon. It is not the function of a judge or of a surgeon to decide what to do based on his empathies, nor on how he may feel about the class of persons whose dispute he is resolving or whose life is in his hands. It is the function of the elected Congress to decide whom the laws it passes should benefit or harm, and it is the function of the elected President to sign or to veto those enactments. Then, it is up to the unelected courts to decide whether the laws as enacted comport with Constitutional and other requirements, without regard to personal views as to their wisdom.

We all hope that all Supreme Court justices will be wise, insightful and diligent in their jobs. Although I would prefer President Obama to appoint a "conservative," I would much prefer a "liberal" with substantial experience as an appellate court judge to a "conservative" lacking such experience.

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About Dan Miller

  • Clavos

    Leave it to Leahy to be among the proponents for inexperienced justices.

    What a moron.

  • Doug Hunter

    They want someone who’ll place the liberal agenda first and interpreting the law optional… pathetic. Then they bring the obligatory race and sex into it saying they want to nominate a woman or minority… aka, they are actively discriminating against white males. I thought discrimination based on race and sex was against the law. Even if they do want those characteristics doesn’t it set a bad example to openly flaunt anti-discrimination laws? Where is the EEOC when you need it?

  • http://www.republicofdave.com Dave Nalle

    Just so long as they don’t pick another Italian…

    Dave

  • M a rk

    From Sowell’s article: “Appoint enough Supreme Court justices with “empathy” for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees “equal protection of the laws” for all Americans.”

    But doesn’t the reverse hold as well? Appointing enough judges lacking empathy for certain groups would lead (has led?) to the same result.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Treat everyone alike and make no allowances whatever – that’s the essence of morality and justice. Empathy is for suckers.

  • M a Rk

    Spoken like a true solipsist.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    It would be helpful, Dan, if you were to provide some examples here when, in your opinion, the constitutional issues were improperly decided because of the justices’ empathy (or what you might prejudice). This is, after all, your article’s main point.

    “However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies — and now, possibly, the empathies — of the judges may come into play.”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    It was tongue in cheek, Mark, in case you hadn’t noticed.

  • M a Rk

    Yes, Rog. I understood the role you were portraying.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    What’s being missed in this argument is that there has been a long standing practice to appoint the justices as based on their positions re: certain key and hotly-controversial issues, regardless of which party occupies the Oval office. This has certainly been the case with Bush’s two appointees, and this tradition of politicizing the appointments, though unfortunate perhaps, is a fact to be reckoned with.

    It would be rather unrealistic to expect that the present administration were to somehow discontinue the pattern and inject purity into the process.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Of course, the party that’s no longer in power has only hope as available resource – hence this grasping at straws.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    BTW, Mark, I’ll have two articles coming up shortly – on the nature of historical progress and the material conditions which had made it possible, so I hope you’ll participate when they’re out.

  • M a rk

    I look forward to reading them, Rog.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    OK. Later then.

  • http://www.republicofdave.com Dave Nalle

    I thought Roger was being serious. Ah well, another hope dashed in the era of hopey-changeyness.

    Dave

  • Glenn Contrarian

    Dan –

    You wrote a good article with clear, logical arguments – and you’re right.

    But the ‘but’ is almost obligatory in our discussions on this site – so of course I must ask what was your opinion on Bush v. Gore? I suspect I know what you answer will be….

  • Clavos

    For all of his decrying of the rigidity and adherence to ideology of the right, Roger is himself an unswerving liberal “progressive” (love that euphemism!). Any putative evidence to the contrary presented by him on these pages should be taken with an enormous helping of salt.

  • Glenn Contrarian

    Dan –

    I just read your article again…and now it seems you’re placing far too much emphasis on ‘empathy’.

    I know that if you listen to the right wing, that’s the ONLY requirement they’ll tell you Obama’s looking for. Let’s compare some of the OTHER qualifications Obama’s looking for:

    “I will seek someone 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”

    Read that closely, then think “Harriet Miers”, “Alberto Gonzales”, “John Yoo”, “Baybee”

    Tell me, Dan – considering the right wing’s track record of picking judges, do they have ANY room whatsoever to talk?

  • Clavos

    Tell me, Dan – considering the right wing’s track record of picking judges, do they have ANY room whatsoever to talk?

    Talk about strawmen!

    What the hell do any of those have to do with Dan’s right to express his opinion as to how the judicial selection process should be managed/improved?

    That smacks of an attempt at guilt by association.

    “I will seek someone 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”

    Lip service when stacked against the “empathy” objective, as Dan thoroughly dissects in the article.

  • http://twitter.com/tolstoyscat Cindy

    The ‘rule of law’ seems to be dredged up and utilized like one of those light sabers from Star Wars, whenever it’s convenient to give an impression of being noble and on the side of truth, justice and all that mythical BS.

    Words, words, words…I’m so sick of words. They seem like nothing but tools people use to warp reality sometimes.

  • Baronius

    Ma r
    k – What role does empathy play in a legal decision? If it has any effect at all, it would be as an impediment to objectivity. “Too little empathy” doesn’t make sense. It’s equivalent to saying “too much impartiality”.

    Roger – The Bush appointees weren’t chosen because of their record on specific issues. That is a gross misunderstanding. They were chosen because of their approach. In recent decades, 100% of Democrat-nominated justices and 50% of Republican nominees have been activists. Bush made his picks based on their originalism, not their politics.

    Dan(M) – How would you feel about nominees with state supreme court experience?

  • Baronius

    Cindy, why did you put “rule of law” in quotes? It’s not that you oppose “rule of law”; you oppose rule of law.

  • Clavos

    Dan(M) – How would you feel about nominees with state supreme court experience?

    Good question.

    Cindy, “Rule of Law” (with or without the quotes) is a fundamental principal of our national governance, and one of the more important ones, to boot. Among other things, it helps to prevent defendants from becoming victims of whim and/or fashionable and politically correct thinking on the part of jurists.

    I can’t understand why you would be opposed to it.

  • M ar k

    Baronius, your argument would work if empathy and impartiality were related as you imply.

    Objectivity is ‘in the eye of the beholder.’

  • M ar k

    Clavos, if one were to oppose the whole ‘national governance’ thing then it would follow that its fundamental principles would be on the shit list as well.

    Among other things, it helps to prevent defendants from becoming victims of whim and/or fashionable and politically correct thinking on the part of jurists.

    yer kiddin’, right?

  • Ruvy

    Cindy et al,

    The concept that Dan (the atheist) is pushing here comes straight from (you should pardon the expression) the Hebrew Bible, the Torah, in fact.

    “Justice, justice, shall you pursue!” “A judge shall not respect persons, only the law.”

    These basic concepts – that the law shall be applied equally to all, that the law shall stand above all people, are the concepts that make it worth standing for a judge when he enters the room. Otherwise, he is just the robed goon representing a gang with guns that claims the right to rule. Unfortunately, the High Court of Justice in Israel has become just that.

    I agree fundamentally with Dan here. The last thing you want to see is a judge who is the final arbiter of what justice is in your country who needs on the job training! Unfortunately, that is what we have here.

  • Ma r k

    And in the US there’s a saying: ‘Justice has nothing to do with it.’

    Otherwise, he is just the robed goon representing a gang with guns that claims the right to rule.

    Well, there ya go.

  • Glenn Contrarian

    Clavos –

    “That smacks of an attempt at guilt by association.”

    So when does it stop being ‘guilt by association’ and become a ‘pattern of conduct’?

    Dan is questioning Obama’s judgment when the president has yet to even name a name…and I’m simply pointing out a few of the gross injustices attempted and/or committed by the right wing over the past eight years…injustices that, considering Dan’s area of expertise, SHOULD have him bellowing in outrage at the Republican party.

  • Clavos

    Mark,

    yer kiddin’, right?

    Nope.

    Notice I used the word “helps.” I’m well aware of the shortcomings of the judicial system; just imagine how much worse it would be without the concept of rule of law.

    You’ve got a good point about Cindy’s stance here:

    Clavos, if one were to oppose the whole ‘national governance’ thing then it would follow that its fundamental principles would be on the shit list as well.

    Just another in the long list of reasons why I think Cindy’s dream of anarchism is unqworkable.

  • Clavos

    Dan is questioning Obama’s judgment when the president has yet to even name a name

    Irrelevant, because Dan is questioning Obama’s judgment as to his announced criterion (empathy) for selecting a nominee.

    It’s a valid criticism, as Dan illustrates by his carefully reasoned argument in the article.

    …injustices that, considering Dan’s area of expertise, SHOULD have him bellowing in outrage at the Republican party.

    And, given Dan’s stated (and demonstrated) impartiality on this point, if the Republicans were presently choosing a SCOTUS nominee using the same criterion, no doubt he would.

    But they’re not, Obama is.

  • Ma rk

    Actually, as I read it, Dan’s article has little to do with empathy as a criterion. It is, rather, a sales pitch for looking for nominees with Federal appellate court experience.

  • http://drdreadful.blogspot.com Dr Dreadful

    I’d also be interested to see Dan’s opinion, as inquired about by Glenn in comment #16, on Bush v. Gore.

    However, given the extreme high stakes in that case, I think it would be virtually impossible for any contemporary American to give a genuinely impartial and unempathetic opinion.

    For that, you will either have to ask an overseas scholar of US law, or wait about 50 years until everyone’s cooled off.

  • Baronius

    Mark, would you mind fleshing that out? There are two competing claims presented to a court, representing two different readings of law. The judge weighs the merits of the readings, based on the text of the law, the common interpretations of the law, and how the law meshes with the rest of the legal system. He doesn’t rule on the case so much as issue a rule by which this case and future cases will be understood.

    As I see it, any empathy toward one of the parties can potentially sway the judge to a misreading of the law, but never to a better reading. I really don’t see how you could reach any other conclusion.

  • Ma rk

    Baronius, I would hope that the ideal for a judge would be to have empathy for both sides and, thus, an understanding of how judgment will affect both. Impartiality and empathy need not exist in opposition.

  • Baronius

    Mark, my flippant reply is that I’d hope the next Justice is good at frisbee golf, since impartiality and frisbee golf are not in opposition, but I don’t see how frisbee golf talent affects a judge’s ability to make the right legal ruling.

    Let me say that in a non-flippant way. Legislators should use their empathy to create a good set of laws. The executive and judicial branches should implement and rule on those laws without preference. Empathy is a good thing for an individual to have, but it has no inherent use in the judiciary.

    The only reason to favor a judge with empathy is to affect the outcome of the cases. If a justice has empathy for both sides, it’s not going to affect his rulings. In fact, if he has empathy for one side, but takes his oath seriously, it’s not going to affect his rulings. And that’s the key: that he be an advocate for the Constitution alone.

    (I have no idea if this comment makes sense. Sorry if it doesn’t. I wish I could preview it.)

  • Baronius

    OK, I guess it didn’t make sense. I missed one important concept. Empathy appears to be a tool for politicization of the judiciary. It’s clearly not intended to promote a neutral reading of the law, and as Dan points out, this woman/minority isn’t being chosen for his or her empathy for the rich, Bulgarians, or model train enthusiasts. The empathy is a means to a political end. The means is dishonest and the end is tyranny.

  • Ma rk

    If (as Dan has argued elsewhere) the Court is a political and partisan entity, what’s all the fuss about empathy politicizing it?

    What’s the point of this myth of objectivity and impartiality?

  • Clavos

    Actually, as I read it, Dan’s article has little to do with empathy as a criterion. It is, rather, a sales pitch for looking for nominees with Federal appellate court experience.

    I see it as a “sales pitch” for the criterion of Federal appelate court experience in lieu of “empathy” as a criterion.

    YMMV

  • Ma rk

    Maybe he’ll tell us whether he’d object to an empathetic appellate court judge as a nominee.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Dave,

    I don’t quite understand the import of #15. What exactly are you referring to?

    Roger

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Clavos,

    Re your #17, I believe.

    I don’t think I ever denied absence of ideology in my thinking. I don’t think it’s possible to have political opinions or views with an ideological element being part of it. The difference I believe is that I think I can justify my ideology in terms of a more primitive – meaning, fundamental – metaphysical system.

    It’s more a matter of internal consistency and knowing where you coming from – or to put in another way, perhaps – of reconciling emotion (the ideological element) with reason.

    Roger

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Should be “without”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark,

    I like your #34

  • Baronius

    Mark – I don’t know what Dan has said in the past. The Supreme Court shouldn’t be political and partisan. You may consider an impartial SCOTUS to be a myth; I prefer to think of it as a goal. It’s one that won’t be served by focusing on empathy.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    I’ll try to respond in more detail to the various comments later today or tomorrow. For now, let me hit the high points. I am arguing that appointing someone lacking the customary appellate court experience would be a very bad idea. There are doubtless some State level appellate courts just as good as some Federal appellate courts. As noted in my last paragraph, I would prefer the appointment of a “conservative” justice to the appointment of a “liberal” justice. However, as between a “liberal” justice with substantial appellate court experience, and a “conservative” justice lacking it, I would prefer the “liberal” justice.

    I expressed my guess as to what President Obama means by “empathy,” and suggested that everyone has it; some have more than others, directed toward different people or groups. To the extent that this twists their reasoning in one direction or another, that seems undesirable. Ditto a “liberal” or “conservative” bent. Neither empathy nor a right-left bent need do this, but the more the empathy pushes in one direction, and the more the right-left bent does that, the worse for the impartiality of the court.

    It does not much matter to me where the idea of impartiality came from, be it the Torah or elsewhere. The golden concept, as far as I am concerned is, as Ruvy expressed it, “Justice, justice, shall you pursue!” “A judge shall not respect persons, only the law.” It is a very high standard, but a very important one which should be tattooed on the forehead of every judge; perhaps in reverse, so that he will read it every morning in the mirror.

    I don’t have any insight into whom President Obama intends to nominate. Perhaps that will be announced later this week or next.

    Dan(Miller)

  • Doug Hunter

    “The difference I believe is that I think I can justify my ideology in terms of a more primitive – meaning, fundamental – metaphysical system.”

    In essence you believe in your own rightness. Welcome to the club, so does everyone else from Nazis to Bolsheviks, the Taliban and the Khmer Rouge. If everyone agrees with you and everyone is right then indeed there is no need for law or an objective study of it, just throw those out and put in a benevolent (empathetic?) dictator. That is why you mock ideas like fairness and objectivity, their is no need to examine evidence or establish standards… you already know everything.

  • zingzing

    baronius: “The executive and judicial branches should implement and rule on those laws without preference. Empathy is a good thing for an individual to have, but it has no inherent use in the judiciary.”

    there is a limit to how far you can take this. people manipulate the law to their advantage all the time. just as often, people are unfairly crushed by strict readings of the law. like it or not, the supreme court has, over the years, been used as a tool to sort this kind of shit out.

    i take it you’re a letter of the law kind of a guy. i’d be a more spirit of the law guy. i would prefer it if laws were written correctly (or even fairly) the first time, but i’m afraid that those who write the laws often know the holes and traps they are placing within them. so we can’t trust them to always have our best interests in their minds when they write these things.

    i’m not sure if the supreme court is any better than the legislature, but at least what they do is (often) very much in public. it’s argued before real people who are either getting screwed or are screwing the system. the laws have faces in the supreme court. in the legislature, they’re just made of letters and money.

    if the laws could be, as you say, “rule[d] on… without preference,” we could just input the facts into a computer and spit out a ruling. but we can’t. we need people up there who have differing sets of “preference,” if you will, to argue it out and see who is right.

  • http://joannehuspek.wordpress.com Joanne Huspek

    Shouldn’t judges be impartial? Isn’t their job to honestly interpret the law?

    Empathy is good, I just don’t want to see my judges doing it while on the clock. Perhaps Obama should expound on the concept so we will know what he really means.

  • M a rk

    …the more the empathy pushes in one direction…the worse for the impartiality of the court.

    Which brings me back to my initial comment: a lack of empathy for a group would have the same negative impact on the impartiality of the court.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You’re reading too much into my comments, Doug. And why would you say I mock those ideas. You have no basis whatever to make such a statement.

    You’re no different, in case you haven’t noticed, as to the “rightness” of your ideas. So why would you want to single me out on this on account?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You’re forgetting one thing, Mark. Humans are only capable of comprehending “justice.”
    Notice the quotation marks. They have no concept of mercy – the Christians that they are. They leave that concept to God’s final judgment.

    So what else is new?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    What I’m really saying, human concept of justice sucks. But they have all their laws and the Constitution, and the Bill of Rights, to back it all up.

    Consequently, there is no trouble in the Paradise. Everything proceeds as planned.

  • M a rk

    So, it’s the ‘throwing oneself on the mercy of the court’ that is the delusion. Interesting.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Joanne,

    Empathy shouldn’t mean anything more in this context than simply being aware of the many inequalities that still exist in our society. Justice is not just a matter of seeing everything with an impartial eyes but also a matter of being able to discern the differences.

    To be able to discriminate, to take account of the significant differences, to see everything as unique rather than as the same, is the essence of justice. And you can’t possible do that if you lack in empathy, because then you’re simply insensitive to the inequalities which are so pervasive in our society.

    Justice is an art, not a technician as Dan Miller, for all his expertise in law, would have us believe.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I didn’t say that, Mark.

  • Doug Hunter

    “to see everything as unique rather than as the same, is the essence of justice.”

    Roger, what is the purpose of having laws if you’re just going to throw them out the window and go with your gut based on who you feel sorry for? I suppose this desire is based on the notion that this person, unbound by law, will share your ideology.

  • Clavos

    Justice is an art, not a technician as Dan Miller, for all his expertise in law, would have us believe.

    You couldn’t be more wrong on that one, Roger.

    There’s a reason why the statue of Iustitia depicts her blindfolded.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Doug,
    You still failing to see it. Justice has less to do with, as you say, “feeling sorry for someone” but with being able to perceive and take into account significant differences. And given than context, empathy is a kind of must simply because the lack of it implies lack of proper sensitivity and awareness of the complex world we live in. The essence of justice is to be able to discern.

    It’s not ideology but common sense.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Then pick a bureaucrat, Clavos. And yes, we do disagree. But I’ll say that you’re misinterpreting here the meaning of the symbol, portraying justice as “blind.” It’s not that kind of blindness that is being portrayed. Certainly, the verdict of Solomon, e.g., does not support your rather contrived, I’m trying to be kind, interpretation of it.

  • Baronius

    Zing, you suggest replacing the Court with a computer. That’s a common analogy among conservatives. With regard to empathy, it’s not a bad notion. A judge shouldn’t rule based on empathy for one side or another, because that’s no different than favoritism.

    A computer can’t be biased, but there’s one other thing it can’t do. It can’t judge. It can’t weigh the quality of arguments on a matter no one’s ever considered before. That requires some good computer code. A judge isn’t supposed to be like a computer, but he’s supposed to be like a programmer. He determines the best, most consistent way of interpreting the data (the individual cases) through the hardware (the laws). He’s an artist to the extent that he has to anticipate future “bugs”, and he’s a technician in the sense that he can’t have a personal or emotional stake in the outcome.

  • Clavos

    you’re misinterpreting here the meaning of the symbol, portraying justice as “blind.” It’s not that kind of blindness that is being portrayed.

    OK.

    Then why is Justice blindfolded, Roger?

    “The verdict of Solomon” is a fable, Roger. A beautiful one, but a fable nonetheless.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Nonetheless, Clavos, all fables and myths have a point. Otherwise, they would have faded as soon as they were conceived. Their very longevity speaks to their value.

    But in case you’re really groping for answers, let me provide one off the cuff. Not my considered position, but it will serve for starters.

    How about “justice is no respecter of persons”?

  • M a rk

    Justice is blindfolded because were she allowed to look around she’d catch the next bus outa here in disgust.

  • Clavos

    Justice is blindfolded because were she allowed to look around she’d catch the next bus outa here in disgust.

    And I would be sitting in the seat beside her.

  • Clavos

    But in case you’re really groping for answers…

    You’ve got that backwards, Roger. I’m not groping for answers on this point, I’m satisfied with what I’ve expressed here.

    From my POV, you’re the one groping.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You know that I don’t, Clavos, but I’m letting it rest.

    Apparently, it’s a stumbling block for you, and I think I understand. Let it be!

    I like your #64. I’d be disgusted, too.

  • Clavos

    Apparently, it’s a stumbling block for you

    You should give up trying to read pixels on a screen, Roger, you’re really bad at it.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Touche, Mark!

    I haven’t seen it before (hasty?) response to Clav. But to each his own, I say.

  • Glenn Contrarian

    Clavos (and Dan) –

    “And, given Dan’s stated (and demonstrated) impartiality on this point, if the Republicans were presently choosing a SCOTUS nominee using the same criterion, no doubt he would.”

    That’s what you say…and no offense, Clavos, but you’re about as impartial as I am. Let’s let Dan address his opinions of the Bush administration’s approach to the Justice Department, shall we?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I indicated earlier, Glenn, that the whole process had become politicized, way before Bush.

    What’s ironic is that the dwindling Right should insist that Obama upholds higher standards. It only tells of their desperation.

  • http://twitter.com/tolstoyscat Cindy

    Wow, I have a lot of reading to do on this thread. I was busy today. I think I accomplished something. A free-market voluntaryist actually thought about what I was saying and understood it. I think he might have seen something new. I believe made progress. It was cool!

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Sorry to disappoint the happy-go-lucky commenter. The thoughts here expressed are an integral part of the author. They have not been influenced in any way by pearls of wisdom that all too many on this his thread are trying to impart on the unthinking masses.

    In that spirit, therefore, I beg to be excused.

  • Clavos

    That’s what you say.

    Yep. It is.

    …Clavos, but you’re about as impartial as I am.

    Never said I am impartial, Glenn. What I did say was that Dan, in matters pertaining to the law, good lawyer that he is, is impartial.

    And the proof of that is in his article.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    It has been requested that I say whether I thought (think?) that the Supreme Court’s year 2000 decision in Bush v. Gore was a good one or a bad one.

    Back in 2000, I was pretty much out of touch with the U.S. and was rather more interested in scuba diving and otherwise enjoying life in Bonaire than in the U.S. elections. I didn’t care much for Bush but voted for him anyway, because I preferred him to Gore; I still do.

    Nor have I had occasion since 2000 to review the Court’s Bush v. Gore decision, the Florida and U.S. Supreme Court decisions which directly preceded it, or the various statutes and Constitutional provisions related to it. That would be necessary for any reasonable analysis. A seemingly valid summary of the pertinent context is here.

    There have likely been many learned, and rather more unlearned, commentaries. The more cogent articles probably were published in various law reviews, were fairly technical and ran to more than twenty or thirty pages; the less cogent articles probably were in various substantially shorter and possibly partisan opinion pieces elsewhere.

    I would not attempt to write about the lawfulness, reasonableness or other aspects of the Court’s Bush v. Gore decision, or whether I think I could have done better, without spending quite a lot of time reviewing all of the various cases as well as the relevant Florida statutes. It was a tangled, time sensitive mess involving, among other things, a Florida statute establishing times and bases for recounts and whether accurate, Constitutionally and otherwise valid, recounts could be accomplished within the statutorily specified times. Such a commentary would be far too lengthy to fit into a readable comment; without attempting to write a BC article on the subject, I don’t know whether I could avoid the technicalities beloved by lawyers but not by laymen to the point that it would be worth writing or reading, or whether I could keep it down to fewer than three thousand words — an excessively long article. When I have time and feel like it, I may try.

    In the meantime, my short answer is Yeah, I liked the result without thinking much about the reasoning behind it. I don’t know whether politics got ahead of legal analysis, or whether the reasoning was sound. I don’t know whether those in the majority “empathized” excessively with Bush, or whether those in the dissent “empathized” excessively with Gore. In my fantasy Supreme Court, none of the justices would “empathize” more with one party than with the other, and none would be swayed by their political predilections. Decisions would not be written in order to come to a predetermined conclusion; the conclusion would flow from the law and the facts.

    Dan(Miller)

  • Doug Hunter

    “A free-market voluntaryist actually thought about what I was saying and understood it.”

    That would be something to actually have an influence on someone other than a youth. In my experience, adults are so set in their ways that it’s a colossal waste of time preaching to them. My father in law is a union loving conspiracy nut democrat and spends hours preaching about this or that group or how republicans ruined the country. Him being the stereotypical sour northerner with a violent temper I just say yeah and go along with it. He probably thinks he ‘makes progress’ with me as well.

    I actually find his monologues fascinating, probably for the same reason I enjoy this site. It’s amazing yet extremely frustrating to witness other people with apparently fine intellect and the same basic human desires who witness the same world you do and come to completely polar opposite conclusions.

  • http://twitter.com/tolstoyscat Cindy

    #74 – Clav

    Really? I didn’t prepare for one.

    (sorry, I love bad jokes)

  • http://twitter.com/tolstoyscat Cindy

    #3 – Dave,

    What do you have against Italians? Yeah yeah…it was a joke. Here’s a joke for you Dave. Guess who is in the Dickipedia? :-)

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Ruvy, at the risk of getting the train badly off the tracks, in your Comment #26 you refer to me as an “atheist.” I prefer to think of myself as an Agnostic, leaning toward Atheism. An Atheist, like a Christian or, I assume, a religious Jew, has a belief concerning whether a god exists. An Agnostic — as I prefer to use the word — does not believe that there is a god, possessing exemplary, horrible or other characteristics. Nor does he believe that there is none. He quite simply does not believe one way or the other. I have no more reason to believe that a god exists, or a fortiori that he has what I would consider good or bad characteristics, than to believe that none does; I tend toward the view that none exists. I assume and freely agree that I may be wrong. I think that this is an important distinction between Atheists and Agnostics.

    On the other hand, if there were a god, and were he a good god, there would be a preview comment window here. I shall have to think about it. Perhaps it shows that there is a god, a perverse one, who enjoys tormenting innocent mortals.

    Dan(Miller)

  • Franco

    18 – Glenn Contrarian

    “I know that if you listen to the right wing, that’s the ONLY requirement they’ll tell you Obama’s looking for. Let’s compare some of the OTHER qualifications Obama’s looking for:

    “I will seek someone 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”

    Glenn, we all know Obama said all of that too and it is Constitutional and there is no concern to be addressed on those words because those are the right words and Obama knows that they are.

    But, the word he also used and put so much emphases on it was “empathy” and this is a huge concern, and you have not addressed that concern.

    You are famous for dragging the straw man out in efforts to get out of answering reasoned concerns of the right. Kindly addresses these concerns if you have any intellectual honesty at all.

    Glenn, would you want to go into court to appear before a judge with “empathy” for groups A, B and C, if you were a member of groups X, Y or Z?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Glen, in Comment # 18, you ask considering the right wing’s track record of picking judges, do they have ANY room whatsoever to talk? I would prefer that the extreme right and left wing children sat down and were replaced by adults.

    It is impossible to foresee how a justice will turn out, and I doubt that President Obama has more prescience enabling him to foresee that sort of thing than have his predecessors. I think it fair to argue — as some “conservatives” have — that some of the Republican appointees have been “undesirable.”

    President Eisenhower appointed Earl Warren to be the Chief Justice largely because of his perceived “conservative” tendencies. Warren had never served as an appellate court judge. President Eisenhower is perhaps apocryphally said to have remarked that nominating Warren for the Chief Justice seat was “the biggest damned-fool mistake I ever made.” I do not know whether this comment had anything to do with Mr. Chief Justice Warren’s lack of experience as an appellate court judge; I rather doubt that it did. Perhaps it should have.

    President Bush the elder nominated David Souter as a Supreme Court justice. He had wanted to nominate Clarence Thomas, but apparently decided that Thomas lacked sufficient experience as a Federal court judge. Various senators voted against Souter’s appointment, including Senators Kennedy and Kerry, due to Souter’s then apparent “conservative” friends and tendencies. Souter had been appointed to the Fifth Circuit Court of Appeals on 25 May 1990 and was elevated to the Supreme Court in October of the same year — not much time to gain useful appellate court experience. He is now generally regarded, at least by some “conservatives,” as having been infected with “liberal” tendencies.

    Yes. Republicans have screwed up no less badly than Democrats in selecting Supreme Court justices whom they hope will act consistently with their expectations. I nevertheless feel that it is appropriate to question the criteria presented by President Obama for his own nominations, because I think that those criteria are bad. To emphasize “empathy” while diminishing the importance of adequate appellate court experience strikes me as a big mistake.

    I shall await with interest President Obama’s decision on whom to appoint, and with at least equal interest to learn how his appointees turn out.

    Dan(Miller)

  • Baronius

    Dan, for the last several decades, 100% of the Democrat-nominated justices have been activists, and 50% of the Republican nominees have been strict constructionists. That’s why the Supreme Court has tended so liberal. I think the point of the Federalist Society was to build a stable of originalists. If Bush’s nominees are any indication, future Republican presidents won’t nominate so many Souters.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    All I’m geting from you are pixels, Clavos, so don’t blame me for lame responses.

    If you want to get more, you’re gonna have to put out.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “I actually find his monologues fascinating, probably for the same reason I enjoy this site. It’s amazing yet extremely frustrating to witness other people with apparently fine intellect and the same basic human desires who witness the same world you do and come to completely polar opposite conclusions.”

    Ain’t that something, Doug.

    Let me give you a hint. Once you figure this one out, you’ve got the rest of it licked. No more puzzles.

  • Ruvy

    Ruvy, at the risk of getting the train badly off the tracks, in your Comment #26 you refer to me as an “atheist.” I prefer to think of myself as an Agnostic, leaning toward Atheism….

    Dan,

    A thousand apologies. It was not my intent to mischaracterize you at all. I had mistakenly thought you to be an atheist. I apologize for the error. There! That’s a 1,001 apologies!

    I have to admit though, that this,
    The concept that Dan (the atheist) is pushing here comes straight from (you should pardon the expression) the Hebrew Bible, the Torah, in fact.
    reads better than this The concept that Dan (the agnostic) is pushing here comes straight from (you should pardon the expression) the Hebrew Bible, the Torah, in fact.

    There is more of a punch to the first line because the contrast is stronger. A true atheist – a believing atheist, you should pardon the expression, would deny the validity of the Torah.

    Be that as it may, I am well aware of the basic differences between an atheist and an agnostic, and a believer.

    Now.

    At the risk of further derailing this comment thread, I was told by a neighbor traveling back from the States that G-d had withdrawn the Angel (according to Jewish belief, each nation other than Israel has a Guardian Angel – I don’t think that the artificial creations and failed states of Africa count as “nations” in this tally) guarding the United States. I sort of expressed that view myself in my article on Hurricane Katrina and the Battle of New Orleans. In any event, not only do I not think you will get a preview box for comments here, I think you are sure to get an “empathetic” “justice” out of the appointment bowels of the Blessed of Hussein. Whether you will all suffer for it is another question dependent on other factors….

  • Bliffle

    As for ‘empathy’, this is a quality that may (or should) inhere in people that allows them to understand others.’Empathy’ itself is the desiderata, and it is prejudicial to just refer to ‘empathy for this’ or ‘empathy for that’.

    The quality of ‘empathy’ in an individual enables them to understand others without necessarily agreeing with them.

    Some modern psychologists that I have read argue that ‘empathy’ is necessary in a socially responsible person. Many say that a child without empathy is psychologically damaged. They say empathy must be learned by a certain age (like 3 or 5) or the child may be lost and adopt very anti-social behaviour.

    Maybe empathy is manipulative (my theory), because by putting oneself in anothers shoes you may learn to outwit them. Rather like a chess player. But this form of manipulation is persuasive rather than aggressive, and admits to reciprocal empathy. Your attempt to outwit an opponent may make you better understand their position.

  • zingzing

    you know, people who seriously think about politics would probably look at this and laugh.

    the basic fact is that dems/libs think that reps/cons have no empathy for their fellow man, while reps/cons think that dems/libs are a bunch of do-nothings who want the gov’t to solve their problems (even on an individual basis).

    neither, in fact, is true. but for us to be sitting here, arguing the nature of “empathy” is just so meta, this sentence just became about this sentence.

  • zingzing

    ruvy: “In any event, not only do I not think you will get a preview box for comments here, I think you are sure to get an “empathetic” “justice” out of the appointment bowels of the Blessed of Hussein.”

    that’s the first time i’ve laughed (other than scoffing) at your words in a very long time. well done.

  • Cannonshop

    Empathy…

    For WHOM? This is like so many things-it’s nice until you actually think about it in practice. Making Decisions based on Emotion that impact people a long way down the line tends to lead to what can only be described as BAD unintended consequences.

    Flat out, if you don’t like the law, work to get it CHANGED where it’s SUPPOSED TO BE CHANGED.

    Emotional Rulings of the Past include the rulings that supported Jim Crow and the concept of “Separate But Equal”. These were founded and based on an EMOTIONAL response (namely, racist feelings that were, in spite of all we’re told by the pap-sucking media, a hell of a lot more prevalent north of Mason-Dixon than anyone is willing to admit in the present.)

    There are, no doubt, other examples of what you get when a Court makes rulings based on ‘feelings’. (The infamous decision on Pornography in the seventies- “I know Obscene when I see it” indeed.)

    When “Justice” is meted out based on “Empathy” the result is never good for your Civil Rights. What you get instead, is an outcome in which “Some people’s rights supersede others”.

    I’m rather sorry some folks just don’t ‘get’ that.

  • M a rk

    As usual, Prof. Bliffle has it right.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Cannon,

    Sorry to disagree with you, but your reduction, as per “Making Decisions based on Emotion,” e.g., is a very vulgar and unenlightened reading.

    Fine emotions and sentiments – empathy being one – don’t exactly interact (or fail to interact) in the way you are suggesting.

    In fact, the kind of dichotomy you’re offering is a caricature.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    PS: In fact, my criticism in #90 is somewhat akin to my criticism of Doug in #83.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    zing (#47):

    “i would prefer it if laws were written correctly (or even fairly) the first time, but i’m afraid that those who write the laws often know the holes and traps they are placing within them. so we can’t trust them to always have our best interests in their minds when they write these things.”

    Not necessarily, zing. The laws must be written in a general enough way to allow for a variety of interpretations – simply because you can’t foresee in advance the kind of cases which will come up (cases to which the law will properly apply) and the kind of distinctions which may be necessary to make in the future. And that’s one theory of how the case-law model grows – by accretion, as it were.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark, your #53:

    Sorry about my #55 as a response (didn’t read your comment accurately): in a manner of speaking, yes – insofar as my earlier critique was of human idea of justice.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Correction to #92: “interpretations” is a poorly chosen word. A well-written law should be able to be applied to a whole bunch of present and would-be/future cases – i.e., those cases should be subsumable under that law.

  • Glenn Contrarian

    Franco –
    Glenn, we all know Obama said all of that too and it is Constitutional and there is no concern to be addressed on those words because those are the right words and Obama knows that they are.
    And then you went on to say something about me being famous for ‘digging out strawmen’.

    FYI, if you’d read my first reply to Dan’s article, you’d have seen me give kudos and compliments to him for the contents of the article. I guess you were too busy making a strawman out of me to consider that little fact.

    Second, in forums (and, I suspect, in arguments for the whole of human history), it’s fairly common for one side to accuse the other of ‘building strawmen’ (or whatever the cultural equivalent may be) in order to attempt to remove credence from the point made to begin with.

    In other words, you made a strawman by accusing me of building a strawman. In programming terms, that’s almost recursive.

  • Bliffle

    One can argue that empathy is not an emotion, but a reasoning tool. It’s used to explore. Just because you explore another persons notions doesn’t mean that you adopt them. But I suppose that some people are afraid that if they permit anothers persona to enter their thoughts that they will be overwhelmed. But the root of that fear must be insecurity, and a common cure for insecurity is confronting the fear.

    Anyway, “the rule of law” is a sort of joke. We all know that the rich and powerful buy the laws that they like. Thus, we look at a world undergoing bankruptcy and see that the corporations representing the powerful get exceptional privileges in bankruptcy, even vast bailouts from the federal treasury, while the poor citizen can’t even really eliminate all his debts. There are so many examples of unequal law that it’s hard for one to believe that anyone still believes that there is equity.

    As Victor Hugo said “the law in all it’s majesty declares that rich man and poor man alike are prohibited from sleeping under bridges.”

  • Clavos

    As Victor Hugo said “the law in all it’s majesty declares that rich man and poor man alike are prohibited from sleeping under bridges.”

    Except, of course for sexual predators in Miami, whom the law forces to sleep under bridges (well, one bridge).

  • Baronius

    Bliffle – Yes, but No. Empathy is the ability to understand another person. Lack of empathy is a sign of psychological disorder. But do you really believe that President Obama mentioned empathy with that in mind? Was he listing psychological conditions which would disqualify a nominee? He could have mentioned Aspergers too, but he didn’t.

    Let’s go back to the President’s actual statement: “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.” He’s talking about a quality that affects outcomes.

    He’s also talking about using something other than the law. The law may have faults, but it’s got to be the only basis by which a legal decision is made. For example, my greatest hope (pushing Jay Leno in front of a bus) has no place in California criminal law. If it does, then there’s no law at all.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Ruvy, I wasn’t the least offended. I did want to clarify my position, and took what I saw as an opportunity to beg for a comments preview. Oh well. Perhaps some day in the great by-and-by.

    Dan(Miller)

  • Clavos

    How much money you got, Miller?

  • http://twitter.com/tolstoyscat Cindy

    Dan(Miller),

    I am just going to post this again. Even with aspirins it’s hard to take it when one’s comments disappear because the techno-thingy doesn’t like your blog URL.

    Anyway, I have something for you. I don’t find an e-mail address for you anywhere. So, if you don’t object could you go on my empty blog here and click on my profile and then send me an e-mail, so I can make an arrangement to send it to you? I think you will like it very much. Perhaps, Jeanie might even like it. (I mean, you know, if that’s okay with you.)

    [No, it isn’t a 900 page pdf file. It isn’t even political. Just fun.] :-)

  • Bliffle

    The idea of a legalism based society is doomed, I’m afraid. Being the creation of mere man the idea of ‘legalism’ is as doomed as those other all-encompassing manias, like ‘communism’, ‘fascism’, ‘socialism’, ‘feudalism’ and, yes, even ‘capitalism’.

    Since it is created by the mind of man the ‘legalist’ society contains within it sufficient contradictions to allow any outcome in any case. No kidding. It’s an elementary rule of logic that an internal contradiction (even just one) will result in ANY logical outcome.

    And Goedel showed that you can’t patch things up with new laws!

    So the system is doomed. Everything is permitted. Nothing is permitted.

    So the “Judge” faces a rich spectrum of choices for an outcome. And any outcome, any judgement, can be justified in the Law.

    Therefore, the judge can choose the outcome he desires, then reason backward to choose the premises and syllogism that will lead to that outcome. Sometimes it’s called ‘rationalizing’, in honor of the Sophists who tried to Square The Circle with a ratio of integers.

    Thus, innocent men are sent to death in the gas chamber. Vicious killers are released back into society.

    Mere man cannot even create an imaginary ‘legalism’ free of the taint of practical affairs. Not even in our minds. I refer you again to Goedel.

    The pathos of our inadequacies doesn’t seem to deter us from arrogance, however.

  • http://jetssciencepage.blogspot.com/ Jet Gardner

    Blif, first I agreed with Clavos today, and now you? Am I mellowing out or something?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Clav, re #100 — not enough.

    Dan(Miller)

  • Ma ® k

    Prof Bliffle, you might find this interesting. Nash is somewhat more ‘optimistic’ at least concerning our ability to cope with formal systems.

  • Bliffle

    Interesting article. I read through it once quickly.

    Interesting conjecture about a consistency axiom.

    I’ll look again later, after the BBQ at which I must make a command appearance.

  • Clavos

    Dan(Miller):

    It never is. That’s axiomatic.

  • http://twitter.com/tolstoyscat Cindy

    Interesting article. I read through it once quickly.

    Yeah, me too. I think I’d need an entire day and an encyclopedia to understand the first two paragraphs. It felt like I was walking around inside John Nash’s head, bumping into things in the dark and saying “excuse me” a lot.

    Some smart people here on BC. Really smart people.

    (I have copied almost every post you’ve ever made Bliffle–[I have my own Bliffle library!]–are you really a Professor? If Mark talked more I’d likely copy all his posts too–if they weren’t all in some complex mathematical language.)

  • Bliffle

    What Nash says is more suggestive than explanatory. He suggests ideas and methods that MAY, if we are resourceful, help us to counter Goedel and navigate back toward more certain logical constructs.

    As I recollect from my scan, Nash says we must plant an axiom (the nature of which is to be determined) back among the premises of our logical construct (such as the legal system) that will insure consistency as we proceed forward in any syllogism. The efficacy of that axiom is judged by a meta-logic, a logic above the logic under study, that allows one to correct the original axiom.

    It’s a valid technique and has been used before. But Nash gives no visible cue how to proceed! It’s almost as if this were an idea he brought up in a graduate seminar which the students were to pursue.

    One might guess that Nash had a fuller plan in mind, but I don’t think so. Nash himself was not free of presumption, and indeed was rather dominated by some strange social ideas which he had a huge personal investment in. He was, after all, rather nuts.

  • Bliffle

    Incidentally, Nash refers to “The Principia” which is the masterwork of Russell and Whitehead published in 1892 in (IIRC) 6 volumes of dense symbolic logic. An amazing accomplishment. I actually know a fellow who owns a copy, and , not a logician, he loves the beautiful symbolic graphics.

    Bertrand Russell was amazing! He solved the problems of the new boolean logic which kept it from solving problems that Aristotle had solved 2500 years ago, by creating Existential Logic. That enabled Von Neumann to invent the ‘half adder’ which bridged the gap from logic to math and invent the digital computer.

    Bertie invented Relational Logic, which is the basis of all the modern “Relational Databases”. Imagine that: all the riches of Larry Ellison, a feisty fellow never known to dodge a fight, founder of “Oracle”, billions of dollars, based on an almost offhand invention of Bertie, a pacifist carrying a “Ban the bomb” placard.

  • http://twitter.com/tolstoyscat Cindy

    …Bertie, a pacifist carrying a “Ban the bomb” placard.

    A rational mind’s conclusion about what is truly important.

    Speaking of bombs. News came out the other day that the Taliban had killed 6 people. Afghan security requested US help. So, the US forced were sent in to bomb the village–the US killed 120 civilians.

  • http://twitter.com/tolstoyscat Cindy

    forced=forces

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Bliffle, #96,

    On the right track. It is an emotion, but an emotion which informs reasoning and becomes transformed thus. (Lot’s of so-called “pure reasoning” are integral complexes where the emotional and the logical are intertwined beyond separation.)

    What’s interesting about this discussion is a kind of double standard. We all would rather have to deal with an empathetic person rather than just a stern on, a person who is rather well-formed and rounded and capable of understanding all points of view when it comes to making any decision or judgment on any matter whatever. Yet, some here insist that it would be more desirable to have “a defective” when it comes to the Supreme Court nominees – as if the rule of law required something less, indeed, something on the order of an automaton (as has been suggested, I believe by Jet, earlier): the presumption here being that law is self-explanatory and doesn’t require the highest in human quality in order to dispense with its applications).

    This is utter nonsense, and those who make this kind of argument only use the idea of law and rule of law as a foil.

    Baronius’s objection is also beside the point insofar as it was meant to salvage the integrity of Dan Miller’s article – regardless of Obama’s own view on “empathy” – because Miller purported to provide us with an objective analysis as to what ought to be the right prerequisites for all the nominees. And to do that honestly and evenhandedly, Miller would be required by his professional ethics to consider the empathy factor at its full and best value (rather in some diluted or perverted sense) in order to be able to later dismiss it as not being the most pertinent one.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark,

    Since you’re into mathematical logic, you must have heard of Raymond Smullyan, see
    Wiki. Took a couple of seminars with him on Set Theory at CUNY.

    Nash’s remarks are really intended for mathematicians, although I like the fact that he couches his remarks in meta-language.

    A good primer on Goedel’s inconsistency theorem would go a long way if one wants to understand Nash.

    Euler’s identity theorem is my favorite, though. You can’t surpass its elegance.

    Roger

    PS: I’m not certain whether the link went through, but you can look Smullyan up in the Wiki. A heckuva guy.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    I must confess that I did not understand the linked article by Nash; perhaps if it had been written by Ogden Nash instead, I would have comprehended more of it, even though I understand that both were possibly rather nuts. While I have read many of Bertrand Russell’s popular writings, I have not attempted Principia Mathematica. I fear that it is more than slightly beyond me, probably even more so that was integral calculus as I labored through it in college.

    Perhaps in addition to enhanced empathy, as to the meaning of which in the present context I can only speculate, since President Obama has not thrown any useful light on the topic, he should also consider substantial familiarity with the methods of logical analysis devised and explained by Nash and Russell et al. Members of the Senate who seek to probe the mind of his nominee could then explore how he intends to apply those insights in arriving at his judicial decisions. Such probing into the novel judicial decision making process which the candidate intends to use would doubtless be helpful to the attorneys who plan to argue cases before the reconstituted Supreme Court; a firm grasp of the nature of the legal analysis then needed in order to be persuasive might thereby be provided. Or not; it would in any event certainly be an interesting confirmation hearing, and it might even be at times amusing as our learned Senators try to come to grips with such concepts.

    Even though I do not have a well constructed idea of the meaning of “empathy” in the present context, I probably understand it better than the quite obscure notions of Nash and Russell concerning the nature of logical analysis. For that reason, I guess I would prefer some diffuse form of empathy as a qualifying factor. However, I am stuck in the mud along with the notion that competent experience as an appellate court judge would be far better.

    Dan(Miller)

  • http://twitter.com/tolstoyscat Cindy

    What exactly IS Nash saying? Can anyone tell me that? I love John Nash (I have a real soft spot for brilliant bipolar people–when they aren’t being scary.) But I just sit here mathless and astounded! (physicsless too)

    Mathy/physicist people are awe inspiring! But I don’t have the attention span to learn 42 levels of background.

    They never had any exciting classes in school like: How Einstein saw the world or what John Nash meant. I would take a class like that. I am jealous and desirous of that kind of perspective.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Reading up on goedel is the first step.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Incompleteness theorem:

    “Relation to the liar paradox
    The liar paradox is the sentence “This sentence is false.” An analysis of the liar sentence shows that it cannot be true (for then, as it asserts, it is false), nor can it be false (for then, it is true). A Gödel sentence G for a theory T makes a similar assertion to the liar sentence, but with truth replaced by provability: G says “G is not provable in the theory T.” The analysis of the truth and provability of G is a formalized version of the analysis of the truth of the liar sentence.
    It is not possible to replace “not provable” with “false” in a Gödel sentence because the predicate “Q is the Gödel number of a false formula” cannot be represented as a formula of arithmetic. This result, known as Tarski’s undefinability theorem, was discovered independently by Gödel (when he was working on the proof of the incompleteness theorem) and by Alfred Tarski.”

    Part of the problem with formal systems has to do with their inseparability from so-called meta-language.

    For example, the paradox presented by the statement: “the set of all sets.” Does the set of all sets includes itself as an element of that set?

    The most intuitive way towards understanding these puzzles is by studying these paradoxes.

  • http://twitter.com/tolstoyscat Cindy

    Yes, um, well…

    The more famous incompleteness theorem states that for any self-consistent recursive axiomatic system powerful enough to describe the arithmetic of the natural numbers (Peano arithmetic), there are true propositions about the naturals that cannot be proved from the axioms.

    I guess there are no Cliff Notes for this sort of thing then?

  • http://twitter.com/tolstoyscat Cindy

    Gödel for Dummies is what’s needed.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Another way of putting it, perhaps, the trouble seems to lie with necessarily self-referential character of some formal-system statements; or inability to create a purely formal system that would be self-contained and “uncontaminated” as it were by the meta (outside the formal system’s) language.

  • http://twitter.com/tolstoyscat Cindy

    Roger,

    I recognize that paradoxical sentence, probably from Philo:Logic. And your 1st paragraph was almost comprehensible to me. After that I got the same feeling as when someone tossed me a 4th ball to juggle.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    If one stays strictly within the limits of the formal system – like the number theory – then the results are bound to be uninteresting. Axiomatization of a formal system is a way of looking at the system from outside as it were.

    Most of these mathematical puzzles or the paradoxes occur as a result of crossover from the formal language to the meta language or vice versa – which seems to point to certain inherent limitations of any formal (non-meta) language/or system. But the most interesting problems in mathematics come to light when you’re looking at the system from outside in. And that’s when the paradoxes occur. For example, what is the meaning of “the set of all sets.” Can we meaningfully speak of any such entity?

    So the limitations of a formal system show up (as a result of such “looking into”) in two ways: (1)the system is either incomplete, because to complete it would bring on those paradoxes; (2) or if it is complete, then it is inconsistent (because of the paradoxes)

  • Bliffle

    It’s a mistake to think that ‘empathy’ is soft and squishy and thus the province of sissies and liberals, not us serious he-men with sneering lips and bulging biceps.

    Indeed, we punishers and avengers seek, as the pinnacle of vengeance, to teach that miscreant a lesson by giving him some of his own medicine!

    If little Jimmy next door raps our darling little Johnny across the knuckles with a stick we immediately want to run over and rap little Jimmy across the knuckles crying “Now how does that feel, mister, when it’s done to you?!”

    We’ll teach that brat some empathy!

  • http://twitter.com/tolstoyscat Cindy

    Ah, great I understand #124.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Axiomatization is necessary because you cannot prove certain statements you either intuitively know to be true – because they are consistent with every other statement within the system – but cannot prove them to be so from the totality of those statements). Hence you axiomatize the system by making certain axioms/assertions ABOUT the system and these assertions are not part of the system.

    What I think Nash is talking about is changing the status of Godel’s inconsistency theorem, and according them the status of axioms; he thinks interesting results might obtain.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    There is a similar experience with natural language. A native speaker may be perfectly at ease with any language game (and they are) – the language game of morals, e.g., without giving it a thought. But then there comes a philosopher who ponders the meaning of certain moral terms – “justice,” for instance, and philosophical puzzles, paradoxes, come into being, different theory of ethics, and so on and so forth, that after a while the native speaker, including the philosopher, become all confused.

    And yet, one has got to be able to step outside of the native language with which one is perfectly at home in order to really understand what it is that one is in effect doing.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    In short, certain operations in mathematics can generate infinite number of sentences and constructions; and these operations are, in and of themselves, very legitimate. But from the meta-language standpoint, some of these sentences and or constructions end up as contradictions. Which would seem to suggest that there are certain natural limits to which any legitimate mathematical operation can be taken; and this I think is the greatest puzzle, the fact that an operation such as addition, or generating a number sequence, are subject to certain limits and cannot be performed indefinitely without incurring a contradiction.
    con

  • Bliffle

    I’m going to assume, until someone argues successfully otherwise, that Goedel still reigns and Nash’s conjecture (for that is all that I see) is not supported.

    Even were Nash to prove his conjecture I can envision a Goedel retort that would re-instate the unprovability of legal consistency.

    I think that what actually happens in judgement of a case is that there is such a spectrum of possible outcomes (and a multiplicity of syllogistic roads to any outcome) that a judge balances his predisposition against his ability to sustain the syllogism in the face of contending attorneys. He doesn’t want to embarass himself with a blatantly partisan decision or with a poorly constructed and defended syllogism. Thus, a judge may be driven to an outcome against his predisposition if the attorney is strong and persuasive.

    A robot would never work because it would just spin around in circles, unable to progress. Like a computer program that can’t reconcile human inputs and produce a decisive result, so it goes into an unending loop.

    Let’s suppose that legislators were required to write all laws in some standard programming language, say Java (or substitute your favorite) as a meta-language. Then we could enter all the legal programs into a computer and “give it the smoke test”, as Electrical Engineers say. Turn on the switch and see if it starts smoking.

    Right away any bystander can see a couple of problems: what about interrelationships between program pieces? That’s eve more poorly defined than in most computer programs! What about boundary conditions, the values that things may range over and what their initial condition is, if anything? How can we ascertain the correctness of the meta-language?

    Etc., etc., etc. It goes on and on. Indeed, it may be impossible to prove the correctness of a simple computer program, and the legal system is even worse.

    There is a similar argument against “strict constructionists” (which I yearned to be when I was much younger) and “originalists”, too.

  • http://www.EurocriticsMagazine.com Christopher Rose

    Has Roger been taken over by an articulate bodysnatcher?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I think it’s the other way around, Bliffle. It is a problem, as I see, of the meaning of certain recursive operations and generated outcomes within the language proper. To analogize, a natural language is capable of generating an infinite number of constructions given the rules of syntax – i.e., proper rules for sentence-formation. But a great number of such formations would be meaningless (from semantical standpoint). So the meta-language here, when it comes to mathematical logic, identifies the contradictions in the language proper.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I’ve got my moments, Chris – like a recovering alcoholic, I suppose, has a moment of clarity.

  • Baronius

    Again, Bliffle, how realistic is that? Do you think that Obama wants an empathic justice so that he can mete out graver punishments? This is another red herring.

  • http://twitter.com/tolstoyscat Cindy

    Thank you for taking the time to explain Roger. It was a quite bit helpful. I understood a bit more of what you said (not all) and much (not all) of Bliffle’s subsequent post.

  • http://twitter.com/tolstoyscat Cindy

    I know this is way out of date. But I find it really difficult to cope with the pagination of the comments. I wrote it in a word program over a few days. So I’ll post it anyway.

    #22 Bar,

    Cindy, why did you put “rule of law” in quotes? It’s not that you oppose “rule of law”; you oppose rule of law.

    That’s true, I oppose the very idea of having laws that are supposed to apply to people that have no say in them.

    But, I put it in quotes to imply it is practiced much differently from the way people claim. ‘Sovereign Impunity’ and all…The ‘rule of law’ doesn’t even apply to the rulers. So, it’s the so-called ‘rule of law’ to me. Plus,

    Laws are interpreted. Non-biased, objective jurists are mythical creatures. What disturbs me most, though, is the tendency people have to talk about things in this utopianized way, as if things worked that way. I think it’s very troubling that people believe in idealized images the have in their head of the way things are instead of looking at the actual way things are. It’s a dangerous thing, but it’s how we’re taught to think. (or rather, how we’re taught not to think)

    (also see Mark @ #25 and Bliffle @ #102)

    #23 Clav – (see Mark @ #25) (which I just noticed you had. Then you said, Just another in the long list of reasons why I think Cindy’s dream of anarchism is unqworkable. in #29. To which I’ll say see the first sentence of this reply to Baronius. There is no reason self-governance is unworkable. There is no reason that people cannot have a direct say in that which affects them. You call this system that exists working? Yes, I understand you think it could be worse. I think local laws with 100% bottom up participation as opposed to centralized top down government, would work much better.

    #26 Ruvy I’ll go with your quote (as modified). …[A judge] is just the robed goon representing a gang with guns that claims the right to rule. I just noticed, I could have saved time by saying (see Mark @ # 27) Because, well…(see Bliffle @ #102)

    #76 -Doug,

    WelI it wasn’t actually a preachy–I’m not listening sort of thing. It was more a respectful dialogue where each participant asks and answers questions. I don’t have any illusion I transformed this person’s beliefs. I think people change themselves. Here’s how I conceptualize one way people might change a belief: Say you see yourself as a fair-minded person, now you obtain new information, say a new realization that contradicts something you believe. The new realization might intrude on your conscience, creating cognitive dissonance. So you can either keep shutting the information out, rationalize it, or adapt your beliefs in congruence with the new realization and change.

    Ah yes, I agree, children are still open and learning. I love children. They haven’t solidified as many conclusions about either the world or who they are. But eventually the effect of having learned in a competetive atmosphere where they are required to have right answers, along with a host of other abuses on their sense of fairness and reason will change that. Successful students come in a variety of flavors. The savagely competetive. Those who have a compulsive need to be right/smart/better than. Those who are non-thinking regurgitators. And more and more. Sadly, obsession with all these other things takes a lot of time away from learning. So do commercial fashion, bullies, and trying to live while dodging authoritarians who wander around looking for someone to impose some ridiculous rule on. I know I went on and on out of relation to your comment. Sorry, I needed a rant.

  • Ruvy

    #26 Ruvy I’ll go with your quote (as modified). …[A judge] is just the robed goon representing a gang with guns that claims the right to rule. I just noticed, I could have saved time by saying (see Mark @ # 27) Because, well…(see Bliffle @ #102)

    Cindy,

    You managed to miss the first part of that comment, the one that talks about “juatice, justice, shall you pursue, and “judges shall not respect persons, only the law”. Otherwise, you set mere anarchy loose upon the land. In this case, “anarchy” means goons shooting at each other all the time, with 10 year old kids hefting sub-machineguns like they did in Beirut thirty years back. Hey, it’s doable! You see it in Arab villages all the time in Israel because the government is unwilling to assert its sovereignty. And then you see a parade of shitholes from overseas telling US how we have to be nice to the genocidal bastards.

  • http://twitter.com/tolstoyscat Cindy

    Ruvy,

    I didn’t miss it. I said–see what Bliffle wrote. (But this is my own and not Bliffle’s take…so…no attribution where I change anything.) The law says what you want it to say. If someone with power comes along (a high falootin’ lawyer with ‘influence’) then a judge might change his normal pattern of finding laws to suit his ideology.

    It’s all bullshit. I have much experience with law, lawyers, courts–in business, as regards personal issues, even a case of where a murderer got off. IMO, the law is whatever they (those with power) want it to be. Also, it is whatever defense one can pay for. If you have money, you can be that one who gets away with murder.

    Both my mother and uncle were arrested in our new homeland of Sussex County, NJ within a year after we moved here. Charge? Contempt of court. You had better believe they had contempt for the court when the judge mis-stated the very facts–by continually repeating the wrong facts! They kept correcting him.

    (Our school Vice Principal got so tired of dealing with my mother that he exempted both my sister and I from certain ordinary rules. We didn’t need hall passes, for example–because they could not seem to give them out in a fair, reasonable way.)

    Governments and sovereignty are the problem for me Ruvy. People makes wars that governments designed possible.

  • http://ruvysroost.blogspot.com Ruvy

    Cindy,

    You’re not alone in having contempt for courts and judges, Cindy. You really do need to reread what I wrote in my original comment some pages back on the comment thread. But once you get sick of “words, words, words”, what you wind up doing is loosing a blood-red tide of death upon the world. Sometimes, that blood-red tide of death needs to be released – like on the Arabs or the Persians in the Middle East. Or on the pirates who now roam the Red Sea and western Indian Ocean with impunity because nancy-boys haven’t got the guts to kill them – and discourage further piracy that way.

    I have neighbors who also dealt with unjust judges. A Texas judge made a big mistake messing with my neighbor – the one with the voice of a red-neck that hides the mind of a judge. That Texas judge damned near got kicked off the bench for misconduct.

    Sometimes being cat-dirt mean does not mean loading up the six-shooter and blazing away (that’s what I’d prefer, it’s easier). Sometimes it means knowing the rules better than those who think they have the right to flout them and out-thinking them at their own game.

    In any event, the gold standard of justice is that a judge respects the law, not the person, and pursues justice (or at least equity). What you dealt with were lawmen, lawyers and judges who did not understand that simple gold standard – and who did not measure up to it by any means.

  • STM

    Ruvy: “In any event, the gold standard of justice is that a judge respects the law, not the person, and pursues justice (or at least equity).”

    Bingo … which is why I believe judges should be independently appointed by a judicial body of their peers with no affiliations, rather than elected or appointed through political association. If they former, they are less tempted to take on the black and white hue of politics.

    That elected or politically appointed bit poses a genuine problem … in the political race for politicians to outdo each other on law and order issues, or to cave in to public opinion, real justice inevitably goes out the window.

    It’s important that judges act independently of everything but the law, as Ruvy quite rightly points out, and reserve their respect only for the law.

    Anything else is a mockery.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Good point, Ruvy. Judge respecting the law is the key, though he may know it’s imperfect. To respect the law, he must be committed to justice above all else. (Of course, to be committed to justice doesn’t mean to be uncaring).

    Having said that, one must add that so-called “judges’ activism” as used by those who dislike his/her decisions is legal fiction. Ideally, all judges “interpret” the law according to their best light. Which somewhat cuts into the practical implications of STM’s argument as evidenced by the fact that many “politically-appointed judges” (Sutter being one example) change their positions once independent of the political process (although STM’s right in principle).

    The bone of contention, I suppose, has to do with the manner in which the laws should be made “more perfect.” The conservatives insist on “the process” – saying that the process is more important than actual decisions made) – and when it comes to common law, as based on the tradition of precedent, this “mode of progress” has basically been adhered to. But the Supreme Court justices, although also bound by precedent and the idea of process, have a greater leniency to arrive at fresh decisions: Brown vs the Board of Education, Roe vs Wade, etc. And at the Supreme Court level, the political argument turns on strict vs less-strict construction of the Constitution.

  • Clavos

    Following is the Oath of Office which all appointees to the Federal bench must affirm:

    “I, _______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

    In addition, each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office. Section 8 of the Judiciary Act of 1789, as amended in 1990:

    “I, __________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (name of position) under the Constitution and laws of the United States. So help me God.” (Emphasis added)

    No mention of empathy…

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    How could it possibly? If anything, it can only be said to be implicit in the concept of justice. So there’s no question here that Obama’s statement is to be read as a political statement and to reflect the politicized nature of the nomination process.

    But then again, how different is it, really, from past experience when the prospective nominees were asked about their positions on abortion, for instance, or any number of controversial issues?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Here is a link to an editorial in today’s Boston Globe which points out, correctly I think, some of the reasons why the selection of a judge or justice on the basis of his particular empathies is a bad idea.

    The oath required of Federal judges is as follows:

    Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

    It is OK for a judge to be particularly empathetic toward whomever he pleases — the rich, the poor, the powerful, the weak, persons of color or those not of color — however, he must not allow his particular empathies to play a role in doing his duty as a judge. We all have particular empathies. It is all well and good for his particular empathies to be part of a judge’s private persona, to be left outside the courtroom just as should be his preferences for Fords or Toyotas, for Methodists or Roman Catholics, or for any side on the abortion controversy.

    Federal judges are appointed rather than elected, and serve essentially for life rather than for a term of years. They are not elected legislators, and no matter how badly they may think the legislators screwed up, it is their proper function to substitute their views for those of the legislators in very few instances: where the law is unconstitutional or conflicts irreconcilably with a subsequently enacted law. I can think of very few* other valid bases for unelected Federal judges, or nine (or five) unelected Supreme Court justices, to substitute their personal views for those of the elected Congress which enacted a law and for those of the elected President with whose signature it became law. Nor can I think of any valid reason for judges to anticipate and thereby to attempt to preempt the role of the Congress and of the President by “enacting” new laws on their own — no matter how greatly they may feel the need for such legislation.

    I realize that some judges do permit their particular empathies to play a role in their decision making processes. Some judges take bribes and some drive while drunk. While very unfortunate and probably illegal, that does not make such things OK or even commonplace. To elevate candidates’ particular empathies to positions of critical importance in the selection as a judge — or worse as a very powerful Supreme Court justice — damages the entire concept of equal justice under law. For a judge or justice, once appointed, to be guided by the empathies on the basis of which he was appointed would be even worse. If he adheres to his oath of office and leaves his particular empathies outside the courtroom, the consideration of his particular empathies in the selection process becomes an exercise in futility; if he takes those empathies into the courtroom, he violates his oath of office and the rule of law is, to that extent, emasculated.

    Roger — it is true that potential judges and justices are sometimes asked their views on current topics of controversy. They usually do not — and certainly should not — provide answers, recognizing that such questions are improper and that to answer them fully outside the context of a particular case and controversy would limit their ability to decide subsequent cases on the basis of the law and the facts then presented.

    Dan(Miller)

    *There are some other instances as well. Courts can overrule administrative regulations where inconsistent with Congressional enactments, in effect or due to their mode of adoption. There are other similar instances. As far as I know, none detract from the points I am trying to make.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Dan (Miller)

    I find this comment more informative and levelheaded than the article itself. Indeed, if the idea of “rule of law” is to have any meaning, then one cannot introduce extraneous considerations into the nomination process.

    The point regarding the separation between the private and pubic personae is also a good one. But we know of course that indirectly or implicitly at least, you would want the prospective appointees – in addition to their professional qualifications and experience – to be mature persons of integrity and high moral standing (so in a way, the notion of “empathy” may figure in, however indirectly). And of course this, too, is an implicit part of the nomination process (as part of the background check, I suppose, concerning the person’s past and their character).

    I suppose then where Obama could be faulted on publicly expressing what ought to remain unsaid – in short, for making a political statement, and therefore, contributing to further politicization of the process.

    Roger

  • http://twitter.com/tolstoyscat Cindy

    …however, he must not allow his particular empathies to play a role in doing his duty as a judge…

    Social science researchers are supposed to try to remain unbiased and impartial. But they can’t, it’s not possible. Thus, double blind studies, random selection, and even after all the rules are followed–peer review of results. This is not just to prevent intentional cheating. It’s to prevent bias effects that are outside the awareness of the scientists. Because even with all the precautions in place—people cannot–are incapable of being impartial. They are incapable of even consciously detecting all the ways they are biased.

    Giving people a job description that says they need to be able to breath water, doesn’t make them capable of doing this. Pretending that they actually do breath water (because they signed an oath saying they will) is (fill in with: dangerous, ludicrous, insane, etc…)

    Again, like Bliffle said, jurists simply work backwards–looking to justify their point of view by finding law that covers it.

    Yet, people just go along and pretend that things are fine….judges rule impartially, etc. Once people create the label, they just go by what it says–they don’t actually look inside the jar to see what’s in there. They act ‘as if’ reality matches what the label says. Well, the label says honey–but really there’s mustard in the bottle.

    (#137 What a daffy sentence. I was tired. Change: People makes wars that governments designed possible., to: Governments, not people, start wars; people, not governments, fight them.)

  • M (a) ® k

    Ahh, another polarized BC argument guaranteed to get nowhere; taking an extreme stance, I reject the sentiment that the real world goal of the law is justice per say. Rather, law is the structured implementation of coercive control by one group of another. To the extent that the controlling group gets the people under its control to buy into its notion of justice, to that extent its job is easier.

    (Cindy, I referenced Nash’s optimistic conjecture as a (interesting, I thought) side note to Prof Bliffle’s melancholic fatalism ala Gõedel: the language of laws can be used to rationalize any judicial finding. Sorry that I wasn’t around yesterday to join the effort to answers your questions. (Kudos to Rog, whose presentation was pretty clear.) Nash’s conjecture is that, unlike lawyers and priests, mathematicians are reasonable people.

    If you are interested in Gõedel, Nagel and Newman’s Gõedel’s Proof is a straight forward presentation. If you want historical context, there are two papers written in the 1930s by my all time favorite logician, Gerhard Gentzen, that I’d recommend: The Concept of Infinity in Mathematics, and The present State of Research into the Foundations of Mathematics.)

    btw: “Some smart people smartasses here on BC. Really smart people smartasses.” Fixed it for ya.

  • M (a) ® k

    uckfay…that’s Gõdel throughout, and what’s up with the HTML these days. Someone want to make a list of what commands works on this new site? And while I’m bitching, where’s the Fresh Comments page that was promised to appear after “a day or two”?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The idea of “the rule of law” has to do precisely with being able to eliminate individual preferences and biases from the judicial process. And as imperfect as the state of law happens to be at any given point in time, it still represents the best that society has been able to come up until that point. Thus, the idea of “the rule of law” serves to protect all persons from any kind of arbitrary or prejudicial treatment. And we haven’t reached the point yet in our society where everyone is “enlightened” and “righteous” (according to whatever standard of enlightenment or righteousness), nor do I believe we ever will. Hence, the underlying presumption is that a society will necessarily be composed of all kinds of persons and that there will be conflict. And so again, the idea of “the rule of law” is to allow as peaceful co-existence between the society’s diverse members and conflicting views as possible – “for the good of the whole,” and to decide the matters of conflict in as impartial way as possible. Again, at no time any given set of laws is perfect, only the best thus far – the state of the art, as it were. Consequently, to reject the idea of “the rule of law” would be to reject all the past decisions and progress that has been made in order to make the law fairer and more perfect than it was before.

    That’s of course the ideal, and Dan (Miller) is talking about “the ideal.” What happens in practice is another matter.

  • M (a) ® k

    What’s the point of discussing ‘the ideal’? Tere’s a whole ‘real world” out there to examine.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark,

    “Rather, law is the structured implementation of coercive control by one group of another.”

    That’s a statement from a Marxist textbook, IMO. I’m not going to deny coercive elements, or that “law” had not been used so. But that’s not the idea behind it. And to take this view of the idea – in general – is to debunk the entire notion of a civil society – further than that, to debunk the very possibility of there ever being a civil society. That’s what I find most problematic about your pronouncement, Mark.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You have to discuss the ideal, Mark, because there’s nothing else – the little shining city on the hill.

    Once you reject the notion of “the ideal,” there’s nothing left but a revolution. But even revolutions are propelled by ideals.

    There’s just no way for us to get away from the notion, however distant or unrealistic it may be, however far removed from the present.

  • http://twitter.com/tolstoyscat Cindy

    btw: “Some smart smartasses here on BC. Really smart smartasses.” Fixed it for ya.

    lol. No strike tag yet.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    And apropos your #149, you can examine it but only in terms of how it deviates from the ideal. Hence, the ideal provides one with a course of action, the strategies, ways of making it better.

  • M (a) ® k

    ‘Civil society’? Show me. Just another ideal lacking instantiation.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Yes – but it’s more “civil” then perhaps even 200 years ago, don’t you think?

    By the way, I’ve covering this when I’ll discuss “the historical progress” in the next two pieces. In a sense, I believe that the latter half of the twentieth century was unprecedented – comparable perhaps to Gutenberg’s invention – insofar as expansion of mass consciousness is concerned. We’ve never been in this situation before where “expanded consciousness” had reach the mass level. And this I find very encouraging. The only question is – will it continue or will we revert to “the dark ages.”

  • http://twitter.com/tolstoyscat Cindy

    Roger,

    I could star quoting what you said, after Mark’s post, but it would be almost everything. So,

    I’ll just say this (and not in any rude personalized way–but in the most general way) that is delusional thinking.

    You are basically justifying social delusion. It’s like saying, yes–I understand this is not reality, but this delusion is all we have, so we have to believe in it.

    It doesn’t really matter what the ‘idea’ of the rule of law was.

    Why do you just throw out what Marx said? Marx said it—throw it out? Why? Marx was a sort of brilliant thinker. Have you considered what he said, I mean before tossing it? Are you just on auto-bias?

    There are potential solutions…you just refuse to even consider any of them. Isn’t this sort of the feeling you, yourself get when talking to certain people? That they just refuse to examine ideas? (Based on your past comments.)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark, you’re looking at the world as someone who says that a glass is half-empty.

    Just consider. Isn’t it a wonder that with all the conflicting views (well represented, I should say, on the pages of BC), each and everyone of us don’t arm themselves to the teeth and start shooting at their neighbor? I consider it rather remarkable that by and large, we manage to co-exist.

  • http://twitter.com/tolstoyscat Cindy

    And what is all this about the ‘progress’ in law leading to a more perfect culmination?

    That is ridiculous. There are more laws all the time. They are more and more incomprehensible. There are so many laws those ruled by them couldn’t possibly understand them. Many aren’t even intuitively logical. Often they are horrifically unjust.

    ‘the best thus far…the state of the art…’

    not reality

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    There is nothing delusional about being aware between the difference between the ideal and the real. It is more delusional to reject the notion that ideal has no part in one’s thinking, simply because to do so is tantamount to giving up. And for all Marx’s brilliance, his analysis was predicated on certain conditions which obtained in a particular period of history. Those conditions are long past, which render his analysis if not inaccurate than at least passe – especially in the present where a whole bunch of other forces are at work. Consequently, Mark’s reliance on Marx I view as retrograde.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Prohibitions of sexual discrimination and or harassment in the workplace
    Suffrage rights for women and blacks
    Civil rights
    Rights for the handicapped and or physically -impaired
    gay rights
    pro-choice rights

  • http://twitter.com/tolstoyscat Cindy

    All the progress you are speaking of has not been because of the law. It’s been because of people who fought against it.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Cindy, I agree that all people to one extent or another follow their emotions, and that judges are people too. Some of us eat more chocolate candy than we knowis good for us. Some of us rush across streets without looking for approaching cars, even though we know that to be an unwise and dangerous thing to do; judges along with the rest of us do it anyway.

    I think that judges, when deciding cases, have a special obligation — which the rest of us do not often have — to put their own emotions, predilections and personal empathies and antipathies aside, and to do so knowingly and intentionally. Doing so is a key part of “judicial temperament.” That quality is not uniformly distributed among judges; the ones who excel in it tend to do the best job in dispensing justice; having them on the bench, and others elsewhere, is one of the important goals toward which we should strive.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The important distinction to be made is between laws and regulations; and studying the development of the criminal law is of great help here – just to see how the concepts of obligation, intent, inadvertence, and a whole bunch of concepts which affect the culpability of a person (or lack of culpability) in doing such and such have evolved and become refined in common law, in the course of time, as new and new cases came into being for which there was no precedent – cases which called for refinement and clarification of concepts. And that’s one example of how the criminal law, especially the case law, evolved over time.

    I have a good primer in mind, by Levy I believe, but can’t think of it offhand. Dan Miller might suggest a good reference.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Regardless of how these advances came to be, they’ve become codified and are now part of the law. And that’s progress.

  • http://twitter.com/tolstoyscat Cindy

    There is nothing delusional about being aware between the difference between the ideal and the real.

    No, there isn’t, I agree. What’s delusional is accepting that the ideal is the real. Foregoing reality to see the glass as half full–it is called ‘utopianizing.’ (see It is exactly what indoctrination has people do–instead of see things the way they are. It is exactly what is wrong. It is living in Oz and pretending all the special effects aren’t caused by a little man behind a curtain.

    It is what Mary Louise Pratt discussed in Arts of the Contact Zone I recommend that. It is incredibly difficult to read without making mistakes and conforming what Pratt says to one’s own thinking. It challenges certain dominant cultural presumptions–if you let it. Personally, I got it wrong at least 4-5 times before I could see what she was saying rather than what I projected onto what I was reading.

    …Marx’s…analysis was predicated on certain conditions which obtained in a particular period of history. Those conditions are long past, which render his analysis if not inaccurate than at least passe – especially in the present where a whole bunch of other forces are at work.

    I don’t see this at all. I see Marx as a forward thinker. What he says is brilliant in that his descriptions of what should happen are predictive. I don’t agree with the withering away of the state. Why should a Mao, a Lenin or anyone else give up power? But when I read the Communist Manifesto, it describe exactly what occurred and what led to the economic crisis of 2008.

    So, you are telling me, you actually read Marx, and having read, concluded his ideas were outdated? What if his ideas were just not yet realized?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Anything by H. L. A. Hart is good, especially his seminal paper, “Ascription of Rights and Responsibilities.”

    Dan should be familiar with him.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Here’s one reference to the aforementioned paper, but I can’t pull the original article from the Wiki.

  • http://twitter.com/tolstoyscat Cindy

    Roger,

    Don’t presume my judgments about the law reflect a lack of knowledge. It’s not a need to be more informed that I have. I’m reasonably well informed. Particularly compared to the average book-reader who hasn’t been involved in a variety of real cases. Even my introductory law class covered the evolution of the common law, for Pete’s sake.

    It’s not that I don’t understand. I just don’t agree.

  • http://twitter.com/tolstoyscat Cindy

    Mark,

    Thanks…#146 was even clearer. I will look at those recommendations. Perhaps I’ll just have to put in the effort to look up each concept and learn the philosophy-speak.

  • http://twitter.com/tolstoyscat Cindy

    I could learn the language, if that’s all that’s needed. I’m just wondering how much math I need. I never took anything beyond basic algebra.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Math is a language, just like physics is. One can’t understand Lorentz’s transformation equations, e.g., without the understanding the language. Einstein himself was not proficient enough in math to have written those equations. He turned to mathematicians with his ideas/concepts.

    Even the basic Relativity Theorem, anything beyond the three dimensions, can’t really be understood outside of the language of mathematics, though some people, like George Gamow, for example, made a valiant effort to try to impart this understanding in the popular mind by intuitive means, geometrical projections, etc.

  • http://jetssciencepage.blogspot.com/ Jet Gardner

    And this relates to Supreme Court nominations in what way… unless it’s by lottery?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You’ve got to understand, Jet. Goedel’s inconsistency theorem was injected into this thread, long long time ago, in order to lighten the gravity of the subject matter under discussion. Purely as comic relief.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Re # 162 — Bramble Bush, by Karl Nickerson Llewellyn, is one of the better treatments of the law and legal reasoning I have encountered. My copy vanished long ago, but a hint as to its import is provided in an, at first glance rather whimsical, introductory page which as best I can remember runs something like this:

    There was a man in our town
    Who was so wondrous wise,
    He jumped into a bramble bush
    And scratched out both his eyes.
    And when he saw what he had done,
    With all his might and main,
    He jumped back in that bramble bush
    And scratched them in again.

    It was published in 1930, and has for years been part of the curriculum of many if not most law schools. A few pages can be read at the Amazon link provided above.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I looked for Levy under Philosophy of Law and/or Legal Reasoning – a great little primer on case law with excellent examples, but can’t find it. Maybe it’s buried somewhere among my books, I hope.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Completely off thread, but nevertheless of interest to some, the RSS Comment Feed option at the top of the comments pages provides recent comments more conveniently than does shuffling back into the articles to see whether there have been any. There is a lag, longer than the almost non-existent lag was in receiving e-mail notifications from BC. Still, until that very useful feature is revived, it helps.

    Dan(Miller)

  • Ma ® k

    The concepts of ‘ruling ideas’ and social power relations predate Marx’s work. He’s just one in a long line of social critics. Thus, Hegel’s (and Smith’s for that matter) work contains many of Marx’s complaints and observations though he turned his back on them without resolution in favor of the ruling ideas of his day.

    Rog, you repeatedly claim that Marx is passe; I assume that you will fill in the blanks about what “conditions are long past” since he gave his description of the productive relations under capitalism and their consequences rendering him so in your thinking. I look forward to your articles.

    imo the problems with the ‘ideal’ (and positivism generally) come when we succumb to the temptation to believe it to be the ‘real’ rather than a tool of thought as you describe it. Thus, for example, the goal becomes finding the ‘impartial judge’ while conveniently forgetting to remember that no such critter exists.

    That said, the problem with Marx is that he failed to realize that:

    If it works at all, it works for all.

  • Clavos

    And its corollary,

    If it doesn’t work for all,

    It doesn’t work at all.

  • Ma ® k

    (Cindy #170, you don’t need no stinking math to grok the problem…)

  • Ma ® k

    Clavos #178 – exactly right.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    My main problem with Marx, Mark, is his limited view of consciousness, which understandably, arose out of his analysis of the conditions then existing in the early industrial nations, I believe Germany in particular. But I don’t want to go too much into detail now because a partial critique of Marx is covered, only incidentally and in passing, in the article I’m working on.

    Think on this, though. The conditions which account for the explosion of, I shall call is “mass consciousness” for lack of a better term,” are the very conditions made possible by full development of a capitalist society. And the interesting twist is that the very ideology (of the new and expanded consciousness) is directed against any further capitalist development – one might say toward the destruction of the system. So here is the problem: the elimination of those very conditions which the ideology aims at removes, at the same time, the very circumstances which gave rise to the ideology: in short, we may revert to the dark ages and dark thinking once the main order of business is going to be physical survival, and not have the luxury to be concerned with the plight of others.

  • Clavos

    Well put, Roger.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Thanks, Clavos.

    Mark, I never said or implied anything to suggest I’m guilty of reification of concepts. And when I’m talking about “ideals,” I’m talking in the classical sense – about ideals such as justice, and some of the virtues. You don’t expect me now to throw Aristotle out the window or the concepts of actuality and potentiality? Once we do that, we become no better than the brutes.

  • http://twitter.com/tolstoyscat Cindy

    I’m confused.

  • http://twitter.com/tolstoyscat Cindy

    Mark,

    What does Roger mean, in plain words? Or even psychology terms would be understandable to me.

  • http://twitter.com/tolstoyscat Cindy

    And now I found this:

    Ideology as a Paradigm

    ‘There has been much confusion about the relationship of material conditions and consciousness in Marxism. Some confusion undoubtedly derives from seemingly contradictory statements made by Marx.’

    (snip)

    That Marx could be so misunderstood (even by Engels) on this point is probably the result of Marx’s devoting only a few sentences to a direct explanation of his break with the fundamental starting points of modern Western epistemology.

    (snip)

    In the “Theses on Feuerbach” Marx explicitly rejects the epistemology of mechanistic materialism which he is so often [p]resumed to accept. He even argues that a reflectionist theory of consciousness is ultimately conservative in that it does not suggest how change is possible.

    So, now I don’t even know if what I read about what Marx thought about consciousness is going to be right–if it’s true that even Engels misunderstood what he meant.

  • http://ruvysroost.blogspot.com Ruvy

    Stan,

    This warms my heart to read….

    Ruvy: “In any event, the gold standard of justice is that a judge respects the law, not the person, and pursues justice (or at least equity).”

    Bingo … which is why I believe judges should be independently appointed by a judicial body of their peers with no affiliations, rather than elected or appointed through political association. If they former, they are less tempted to take on the black and white hue of politics.

    That elected or politically appointed bit poses a genuine problem … in the political race for politicians to outdo each other on law and order issues, or to cave in to public opinion, real justice inevitably goes out the window.

    But I am forced to disagree – the solution you propose is more or less in force here in Israel; an independent judicial panel picks judges. But over time, the judicial panel has become a clique unto itself, with a distinct ideological bent, and instead of getting what the law here requires – impartial rulings that interpret the law in the spirit of the Torah – we get highly partial and bigoted rulings that do not even refer to the spirit of the Torah at all.

    The theoretical solution you have laid out has been tried here. And it is an utter failure. Sorry to disagree. What you have laid out looks so good.

  • http://twitter.com/tolstoyscat Cindy

    #186 was to Mark too.

  • Ma ® k

    Cindy, my understanding of dialectical materialism is that consciousness develops through the interplay not simply of material conditions, but of that between material conditions and consciousness carried over from the past through productive social relations.

    What I get from what Rog is saying (and which any consistent Marxist ought to agree with imo) is that if the capitalist system of production fails before its benefits are universally developed, then people will be too busy feeding themselves to implement a humanist agenda. Marx was clear in his insistence that a successful socialism can be built only under conditions of high and growing productivity; I think that he failed to follow this notion through to its logical conclusion. Quite literally, it must work for all or it won’t work.

  • Clavos

    Marx was clear in his insistence that a successful socialism can be built only under conditions of high and growing productivity; I think that he failed to follow this notion through to its logical conclusion.

    Quoted for Truth.

  • Ma ® k

    Rog #183 – I assume that you’re speaking for yourself and not denying that reification occurs.

  • http://twitter.com/tolstoyscat Cindy

    Thanks Mark…much much better.

    I think that he failed to follow this notion through to its logical conclusion. Quite literally, it must work for all or it won’t work.

    I still don’t get that part in relation to everything else (the state of affairs not being conducive to Marx’s outcome).

    Where is a Marxist when you need one? I want to here a proponent’s perspective.

  • http://twitter.com/tolstoyscat Cindy

    I asked for help from a Marxist, who read this conversation and had these comments:

    “Having read though that a few times I have to admit I’m still a bit lost. But here’s my 2 cents….
    Roger seems to misunderstand the point. Class consciousness grows through the capitalist system of class differentials.
    Once this is understood then workers can create a classless society.
    The experience of Capitalism is necessary as it is the next development of human society, after feudalism slavery etc.
    Marx knew that capitalism was an improvement from previous social conditions – He said it in the first paragraph of the Communist Manifesto
    Further that Ma®k presumes falsely that Capitalism is the most productive mode of production.”

    I tried to get him to join the conversation directly, because I don’t clearly understand this and would benefit from seeing a discussion between people who do. Maybe next time, for now it is midnight in England and bedtime, apparently.

    Maybe Les Slater will pop in one day and have a discussion.

  • M a rk

    I don’t think that we can put an end to class conflict through intensified class conflict as Marxists call for. Rather, we need to develop an alternative to the profit motive and its accounting techniques. This alternative can be developed on both moral and practical bases. This has been my call here on BC since I stumbled in. I faithfully await Wells’ comet.

  • http://twitter.com/tolstoyscat Cindy

    I should just find a class online.

  • http://twitter.com/tolstoyscat Cindy

    Mark

    I don’t think that we can put an end to class conflict through intensified class conflict as Marxists call for.

    Why? It wouldn’t work? Or it’s not desirable?

    Also, what form does Marxism say the intensified conflict takes? Just worker revolution? Seizing means of production through force?

    Rather, we need to develop an alternative to the profit motive and its accounting techniques.

    Where can I read something (understandable, I hope) about that idea?

    I faithfully await Wells’ comet.

    Will it be less than 10,000 years? Patience is a virtue. :-)

    (I think my Marxist friend’s good intentions were wasted on me…it didn’t much clear up my remaining questions about the whole discussion.)

  • http://twitter.com/tolstoyscat Cindy

    #190

    Clav,

    You understood that. Can you explain that to me (sorry I really still don’t understand.) Sometimes saying things different ways works.

    LOL fuck! I hate feeling stupid. I just don’t know why I don’t get it.

  • Bliffle

    One could argue that an appeal to impartiality and the elimination of empathy is a ruse, a disingenuous attempt to appear fair while actually putting a thumb on the scales of justice.

    Of course, when an assembly line worker loses his arm to a factory machine and sues the factory for damages, loss of income, etc., he may file a lawsuit for damages.

    He alleges irresponsibility at the factory. The factory alleges that he was careless, and , anyway,he deserves no better.

    Allegations are exchanged. Arguments are made. What is the poor judge to do? It’s a tossup.

    Should he decide for the worker and risk the contempt of the BC anti-empathy writers? Should he decide for the worker and risk the enmity of his friends at the Elks Club who are successful businessmen who sometimes put him onto profitable real estate deals?

    Or should he decide against the worker and risk the enmity of…whom…?

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark,

    I’m sorry I didn’t plug in earlier.

    As to reification, yes, I was speaking for myself. But how does it occur on a general level? A word or two from you so I can respond.

    My main point was that Marx’s conception of higher “mass consciousness” was limited to class consciousness. If he thought “class consciousness” an intermediary step to a more general kind of consciousness, then I have no quarrel with Marx. But even in that case, the conditions have changed in that that the intermediary step is not necessary any longer in order to move on – which is to say, we’re almost there.

    The main point of contention seems to be that whatever the case, it seems you can’t attain that state in the absence of a certain level of prosperity for a great many. People will revert to their barbaric self if they have to be preoccupied with just being able to make ends meet. And this is reflected on the individual level as well – e.g., in terms of Maslow’s levels of needs, whereby self-actualization is possible only when the more basic needs are met and no longer unsatisfied. So basically I hold on to pretty much the same paradigm – in this one respect – when it comes to a collective.

    Mind you, though. The disagreement we may have as to the values you and I put on the desirable level of consciousness. What I may regard as satisfactory, or at least as a step or a stepping stone in the right direction, you may regard as false or not good enough. About that I can’t help and it would be a disagreement over values and different view of eschatology.

    So that’s for starters.

  • M A rk

    Why? It wouldn’t work? Or it’s not desirable?

    The suffering involved would be undesirable, and there is no reason based on history to conclude that violence ‘works’. Creative destruction is just more of the same. There is no ‘just’ war, class war included…ymmv

    Where can I read something (understandable, I hope) about that idea?

    I know of no economics that isn’t based on the assumption of private or social profit/production maximization.

    Will it be less than 10,000 years? Patience is a virtue.

    “Not only is another world possible, she is on her way. On a quiet day, I can hear her breathing.” Arundhati Roy

  • M a rk

    Our task is nothing less than consciously changing human nature.

  • M ar k

    Rog, I’ll need some time to respond to your #199. I don’t want to simply quote Hegel.

    Hopefully, I get something together before the conversation goes cold.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark,

    I agree about #201 and (partly) disagree.
    “Human nature” is an elusive concept and overused. And if it is subject to changing, it’s only indirectly, through enhanced consciousness.

    So yes, we do have THAT responsibility, just as we have a personal responsibility with respect to our acquaintances and friends to point out to them what we perceive as “their wrongs,” for that sake. Whether it changes “human nature” is another story and I don’t have to delve into that aspect. Suffice it to say that retrogression is always a possibility; at the same time, it is also true that we are (and become) what we behold.

    This is of course more true of the individuals – when dealing with a case by case basis – than of a collective. The problem with “mass consciousness” is that it must acquire a sufficient momentum in order to ensure against sliding back – which is to say, it must become the prevalent “ideology” if it’s to persevere.

  • http://twitter.com/tolstoyscat Cindy

    #20

    Thanks Mark.

    Yes, war won’t ‘work’, that part I’d know you meant. Better way of putting it: I was trying to understand whether Marx was wrong in an academic sense–whether his idea would not result in his outcome (even say, were one to agree with class war). I know he supports liberation war and not the other way around. I’m trying to figure out where he made sense–versus where he was just wrong (as in withering away of the state–to me that is just wrong).

    I have another Marxist in reserve to help me. She’ll be able to re-explain it 42 times until it sinks in. Plus…

    I think I found an online class to study Marx. I’ll be needing it if I ever want to talk to Marxists about anything. Besides, I am getting picked on now by 16-year-olds because apparently they learn all about Marxism in AP Gov class (sigh).

    BTW Andrej has a new video: It’s a panel on the Wobblies/Zapatista book. You might like it. It’s addressing ideas about what is needed in a movement now in the U.S. Anarchism & Marxism Part 1. I think it’s divided into 9 small parts or so.

    Arundhati Roy — I love that. :-)

  • M a rk

    I have no doubt that the contradictions inherent in capitalist production will result in a general crisis that working people will find unacceptable. I hope that we can avoid the whole ‘dictatorship of the proletariat’ thing. My job as an anarchist is to start protesting that state of affairs now. The withering away of the state is not optional.

  • http://twitter.com/tolstoyscat Cindy

    Our task is nothing less than consciously changing human nature.

    Yes. That’s how I see it too–conscious change. Thus, education has been my focus forever.

  • http://twitter.com/tolstoyscat Cindy

    Education and human development.

  • http://twitter.com/tolstoyscat Cindy

    I think this very short quote, says pretty much everything:

    “There is no way to peace — peace is the way” — A. J. Muste

  • Clavos

    Dan(Miller);

    Your thread has devolved (descended?) into anarchy…:>)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Not if I can help it.
    BTW, Clavos, could I direct my next two articles to your attention – not just for editing but feedback?

    Roger

  • http://twitter.com/tolstoyscat Cindy

    Sometimes, I just adore you Clav. :-)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You may well have to, because you’re running out of alliances, and quickly.

  • http://twitter.com/tolstoyscat Cindy

    But I would say ‘evolved’ Clav.

    John Stewart conceptualizes evolution itself as having reached the level of complexity that it will be driven consciously. (Even if he were wrong, it still works on a social level, to me.)

    John Stewart:

    It is as if evolution is a developmental process. Just as a human embryo is organized to develop through a number of stages to produce an adult, evolution tends to produce a particular sequence of outcomes of increasing complexity. Initially, evolution moves in this direction of its own accord. However, at a particular point evolution will continue to advance only if certain conditions are met: organisms must emerge that awaken to the possibility that they are living in the midst of a developmental process; they must realize that the continued success of the process depends on them; and they must commit to actively moving the process forward.

    This relates, to me, very much to what Mark said:

    “Our task is nothing less than consciously changing human nature.”

    I see Anarchism as a way of embracing that ‘evolutionary’ change.

    So, there is my case. Dan(Miller)’s article has evolved into anarchy. :-)

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Clav (#209) and Cindy (#213) — Yep. I’m waiting for some pirate jokes.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    That means, of course, that Dan Miller has resigned himself to the fact that his thread is going nowhere and that it had, “devolved” is the right word, into trivia.

    Oh, well, the things humans won’t do to be liked.

  • Clavos

    Sometimes, I just adore you Clav. :-)

    Thank you, Cindy — unfortunately (for me), you’re in the minority.

  • Clavos

    BTW, Clavos, could I direct my next two articles to your attention – not just for editing but feedback?

    I’ll be glad to work with you on your pieces, Roger. Isn’t this a bit of an about face for you? I recall you saying not too long ago that you didn’t want me to touch your work.

  • Clavos

    But I would say ‘evolved’ Clav.

    Of course you would, Cindy. :>)

  • Clavos

    I’m waiting for some pirate jokes.

    Hate to keep a man waiting:

    A pirate walks into a bar and the bartender says, “Hey, I haven’t seen you in a while. What happened, you look terrible!”
    “What do you mean?” the pirate replies, “I’m fine.”
    The bartender says, “But what about that wooden leg? You didn’t have that before.”
    “Well,” says the pirate, “We were in a battle at sea and a cannon ball hit my leg but the surgeon fixed me up, and I’m fine, really.”
    “Yeah,” says the bartender, “But what about that hook? Last time I saw you, you had both hands.”
    “Well,” says the pirate, “We were in another battle and we boarded the enemy ship. I was in a sword fight and my hand was cut off but the surgeon fixed me up with this hook, and I feel great, really.”
    “Oh,” says the bartender, “What about that eye patch? Last time you were in here you had both eyes.”
    “Well,” says the pirate, “One day when we were at sea, some birds were flying over the ship. I looked up, and one of them shat in my eye.”
    “So?” replied the bartender, “what happened? You couldn’t have lost an eye just from some bird shit!”
    “Well,” says the pirate, “I really wasn’t used to the hook yet.”

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Clavos, #217.

    I’m certain you realize by now I’m temperamental. Character deficiency, no doubt, for which I can only apologize.

    I’d like to, however, to go with my better judgment, even if it means overlooking your propensity for sarcasm.

  • http://twitter.com/tolstoyscat Cindy

    A dyslexic pirate walks into a bra.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Re # 215 — would someone please tell Roger that I solicited PIRATE jokes?

    Dan(Miller)

  • Franco

    95 – Glenn Contrarian

    “FYI, if you’d read my first reply to Dan’s article, you’d have seen me give kudos and compliments to him for the contents of the article. I guess you were too busy making a strawman out of me to consider that little fact.”

    False: I did see and read your comment complimenting Dan’s article. But that has absolutely nothing what so ever to do with my question to you in post #79 when you dodged the issue of empathy and talked about everthing else but.

    You used everything else said as the stawman to get out of addressing ‘empathy”, and your post 95 was just more horanging about everything else but ‘empaty” once again, which only confirms my origaal post #79. You still have not answered the question. Here it is again.

    Glenn, would you want to go into court to appear before a judge with “empathy” for groups A, B and C, if you were a member of groups X, Y or Z?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    An article in Slate prompted me to think a bit more today about the meaning of empathy, as it is there argued the word was used by President Obama. According to the article, “empathy” is not a code for something else. I have no idea whether it is a code word or is not. However, words themselves have meanings, and the interpretation placed upon the word in the article and there attributed to President Obama is interesting.

    “Webster’s defines empathy as ‘the experiencing as one’s own the feelings of another.’ Obama, in The Audacity of Hope, described empathy as ‘a call to stand in somebody else’s shoes and see through their eyes.’ To Obama, empathy chiefly means applying a principle his mother taught him: asking, ‘How would that make you feel?’ before acting. 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.

    ****

    [E]mpathy—at least as Obama has used the word—decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: “Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision.”

    Pretty words, no doubt; but what does all of this mean? To the extent that it means understanding and properly considering all facts in a case which are relevant under the law, then I have no problem with it. Should the feelings, or the factual situation, of an impecunious widow about to be evicted from her pitiful hovel due to the non-payment of the agreed upon rent be relevant under the operative statute, then clearly those facts and feelings should be given due weight and possibly decisional significance. To the extent that they are not relevant under the statute, they should be given no weight at all, no matter how badly the judge may feel about it or how greatly he may feel the widow’s suffering. That is the function of a very different branch of Government.

    Assume a statute stating, “any person renting real property who shall fail to pay the rent due under and according to the terms as set forth in the rental contract to which he is a party shall, upon proper request and the presentation of relevant evidence to a court of competent jurisdiction, be evicted from said property forthwith.” I know of no such statute, but assume with me that it is the law pursuant to which a judge must decide a case. The judge then has no discretion to consider the widow’s personal situation, her feelings, or whether he would have written the statute differently had he had the opportunity to do so. He cannot properly put himself in the shoes of either the landlord or the tenant. He cannot properly put himself in the shoes of counsel for the plaintiff or for the defendant, no matter how badly either might feel were his client to lose the case. He simply has no warrant to rewrite the statute, to ignore parts of it, to supplement other parts in his judicial capacity, or to be guided by how he would feel were he on the other side of the bench as plaintiff, as defendant, or as counsel for either; or to “experience as . . .[his] own the feelings of” such others. To act upon such a empathetic experiences in his judicial capacity would violate his oath if he had taken an oath comparable to the one taken by Federal judges.

    Legislators do have not only the discretion but also the obligation to think before they legislate, and when the implementation of a statute produces outcomes which they find offensive, to do something about it — by repealing or modifying the statute, albeit prospectively. The electorate also has not only the discretion, but also the obligation as well, to see to it that their legislators do so. It is the function of a judge to apply statutes as written, not to make up for the all too often sloppy work of legislators or of the voters who employed them.

    Judges and legislators are very different species, and to wish them to behave as though they were the same or even nearly so, or to perceive of their functions as the same or nearly so, grossly distorts the separation of powers and functions embedded in the U.S. Constitution. Judges are not called upon to “do good” according to their empathies or other lights; they are called upon to rule upon the disputes before them justly, in accordance with the statutes authored by others.

    Dan(Miller)