Experience as a competent appellate court judge should trump all else in the selection of a Supreme Court justice.
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.…
Article comments
— go to most recent comments26 - 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.
27 - 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.
28 - 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.
29 - 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.
30 - 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.
31 - 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.
32 - 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.
33 - 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.
34 - 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.
35 - 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.)
36 - 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.
37 - 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?
38 - 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
39 - Ma rk
Maybe he'll tell us whether he'd object to an empathetic appellate court judge as a nominee.
40 - roger nowosielski
Dave,
I don't quite understand the import of #15. What exactly are you referring to?
Roger
41 - 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
42 - roger nowosielski
Should be "without"
43 - roger nowosielski
Mark,
I like your #34
44 - 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.
45 - 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)
46 - 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.
47 - 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.
48 - 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.
49 - 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.
50 - 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?
51 - 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?
52 - 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.
53 - M a rk
So, it's the 'throwing oneself on the mercy of the court' that is the delusion. Interesting.
54 - 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.
55 - roger nowosielski
I didn't say that, Mark.
56 - 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.
57 - 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.
58 - 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.
59 - 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.
60 - 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.
61 - 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.
62 - 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"?
63 - M a rk
Justice is blindfolded because were she allowed to look around she'd catch the next bus outa here in disgust.
64 - 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.
65 - 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.
66 - 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.
67 - 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.
68 - roger nowosielski
Touche, Mark!
I haven't seen it before (hasty?) response to Clav. But to each his own, I say.
69 - 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?
70 - 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.
71 - 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!
72 - 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.
73 - 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.
74 - 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)
75 - 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.