The fictional and non-fictional "empathy vs. law" debate
Cutting for length. I'll include a disclaimer: my legal knowledge is based on "Law & Order" and common sense.
SVU's "Crush" was a convoluted look into two subjects familiar in the "Law & Order" franchise (and the real world): judges and the potential of judicial activism. In-series prosecutors have been often weary on whether a judge will circumvent their usual role into outright activism (MS' "Gunshow," SVU's "Poison"). The quiescential example would be MS' Judge Wright.
Wright was introduced late into the Jamie Ross-era with "Damaged." In the episode, he set aside the original verdict, prompted defense counsel and ignored the second verdict. He became a recurring judge in the Jack/Abbie-era, clashing with Jack McCoy overtly in "Gunshow" and passive-aggressively in "Dissonance." Ironically, he occasionally displayed a moderate streak in both MS' "Harm" and his TBJ cameo.
A real-life debate is underway in light of David Souter's impending retirement from the Supreme Court. President Barack Obama even remarked in late 2008 about empathy being a major issue of judicial appointments. (1) The fictional versions certainly have been covered extensively in MS: McCoy had to listen to Wright's Emmy-bait final monologue in "Gunshow" and had to deal with a judge's potential empathy in "The Chosen." (McCoy feared a Jewish bias from both judge and jury over a pro-Jewish defendant.)
Meanwhile, discussion on the judge's true role in the law has already been taken into overdrive. Countless people clash over Supreme Court judges following the strict letter of the Constitution vs. subscribing to the "evolving, breathing document" mindset. A major sub-argument has been the concept of states' rights vs. judges producing new law, particularly on social policy.
In fact, an upper echelon judge directly asked McCoy on his attempt to set social policy in a Jack/Abbie-era episode. He rejoined on how "the courts have always been agents of social change."* Regarding the issue, Sonia Sotomayor (a possible Supreme Court candidate) recently argued on how courts create policy.
Hotair.com has an interpretation worth mentioning:
Of course courts make policy. Every time they “interpret” a constitutional clause or statute, they add interpretive rules to guide lower courts; because of stare decisis, every court opinion is in essence a new bit of binding policy gloss on the statute in question. For example, there’s nothing in the Constitution about when defamatory speech should be protected. The public figure/private figure standard is a judicial creation which operates in effect as policy because that’s the standard lower courts apply when weighing a First Amendment defense to defamation.
All Sotomayor’s saying, I think, is that it’s pointless to pretend judges don’t have an active hand in shaping policy. That’s standard legal realism, contra the silly legal formalist theory of judges somehow suppressing all human bias and “scientifically” deducing the answers to tough problems. Because she’s a sitting judge she has to pay lip service to the idealism of the latter, but let’s not kid ourselves.
Link: http://hotair.com/archives/2009/05/03/sotomayor-courts-are-where-policy-is-made/
Given such logic, McCoy was correct about the dropping of the pretense. Lennie Briscoe had a Branch-era observation on jurors being people, carrying their prejudices and perspectives, as opposed to being guided by "Pentium processors." It is all part of the legal realism, and the same standard to be applied to both judges and prosecutors.
Thomas Sowell probes the issue of "empathy vs. law" directly into two commentaries. The second commentary elaborates on Oliver Wendell Holmes, which may captivate the Jack/Abbie-era based legal scholars. McCoy and Carmichael actually discussed on Holmes in MS' "Hate." Holmes was again cited in 2005's "Birthright."
‘Empathy’ vs. Law
When you buy words, you had better know what you are buying.
By Thomas Sowell
Justice David Souter’s retirement from the Supreme Court presents Pres. Barack Obama with his first opportunity to appoint someone to the High Court. People who are speculating about whether the next nominee will be a woman, a Hispanic, or whatever, are missing the point.
That we are discussing the next Supreme Court justice in terms of group “representation” is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.
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 farther 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.
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? Nothing could be farther from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.
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.
We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law becomes meaningless when it is replaced by the empathies of judges.
Barack Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words “rule of law.” And if you are willing to buy it, he will keep on selling it.
Those people who just accept soothing words from politicians they like are gambling with the future of a nation. If you were German, would you be in favor of a law “to relieve the distress of the German people and nation”? That was the law that gave Hitler dictatorial power.
He was just another German chancellor at the time. He was not elected on a platform of war, dictatorship, or genocide. He got the power to do those things because of a law “to relieve the distress of the German people.”
When you buy words, you had better know what you are buying.
In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.
Justice John Paul Stevens virtually destroyed the Constitution’s restrictions on government officials’ ability to confiscate private property in his 2005 decision in the case of Kelo v. New London - 30 years after President Ford appointed him.
The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues - whether private property, abortion, or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law - what has been called “a government of laws and not of men.”
Under the American system of government, this cannot be done overnight, or perhaps even during the terms in office of one president - but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.
Some people say that whomever Barack Obama appoints to replace Justice Souter doesn’t really matter, because Souter is a liberal who will probably be replaced by another liberal. But if no one sounds the alarm now, we can end up with a series of appointees with “empathy”- which is to say, with justices who think their job is to “relieve the distress” of particular groups, rather than to uphold the Constitution of the United States.
- Thomas Sowell is a senior fellow at the Hoover Institution.
© 2009 CREATORS SYNDICATE, INC.
Link: http://article.nationalreview.com/?q=MzM0MzdiMTVhZTgxNmE5ZGYzZWY3M2UyNDQ3NjI3NWY=
‘Empathy’ Versus Law: Part II
Obama vs. Oliver Wendell Holmes.
By Thomas Sowell
The great Supreme Court justice Oliver Wendell Holmes Jr. is not the kind of justice who would have been appointed under Pres. Barack Obama’s criterion of “empathy” for certain groups.
Like most people, Justice Holmes had empathy for some and antipathy for others, but his votes on the Supreme Court often went against those for whom he had empathy and in favor of those for whom he had antipathy. As Holmes himself put it: “I loathed most of the things in favor of which I decided.”
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’s 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.”
By the same token, Justice Holmes did not let his sympathies with some people determine his votes on the High Court. As a young man, Holmes had dropped out of Harvard to go fight in the Civil War because he opposed slavery. In later years, he expressed his dislike of the minstrel shows that were popular at the time “because they seem to belittle the race.”
When there were outcries against the prosecution of Sacco and Vanzetti in the 1920s, Holmes said in a letter, “I cannot but ask myself why this so much greater interest in red than black. A thousand-fold worse cases of negroes come up from time to time, but the world does not worry over them.”
Yet when two black attorneys appeared before the Supreme Court, Holmes wrote in another letter to a friend that he had to “write a decision against a very thorough and really well expressed argument by two colored men” - an argument “that even in intonation was better than, I should say, the majority of white discourses that we hear.”
Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society. He had a very clear sense of what the role of a judge was - and wasn’t.
Justice Holmes saw his job to be “to see that the game is played according to the rules whether I like them or not.“
That was because the law existed for the citizens, not for lawyers or judges, and the citizens had to know what the rules were in order to obey them.
He said: “Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts.”
Legislators existed to change the law.
After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: “Do justice, sir. Do justice.”
Holmes had the carriage stopped. “That is not my job,” he said. “My job is to apply the law.”
Holmes wrote that he did not “think it desirable that the judges should undertake to renovate the law.” If the law needed changing, that was what the democratic process was for. Indeed, that was what the separation of powers in legislative, executive, and judicial branches by the Constitution of the United States was for.
“The criterion of constitutionality,” he said, “is not whether we believe the law to be for the public good.” That was for other people to decide. For judges, he said: “When we know what the source of the law has said it shall be, our authority is at an end.”
One of Holmes’s judicial opinions ended: “I am not at liberty to consider the justice of the Act.”
Some have tried to depict Justice Holmes as someone who saw no need for morality in the law. On the contrary, he said: “The law is the witness and external deposit of our moral life.” But a society’s need to put moral content into its laws did not mean that it was the judge’s job to second-guess the moral choices made by others who were authorized to make such choices.
Justice Holmes understood the difference between the rule of law and the rule of lawyers and judges.
- Thomas Sowell is a senior fellow at the Hoover Institution.
© 2009 CREATORS SYNDICATE, INC.
Link: http://article.nationalreview.com/?q=YjNhMWFhZGIxNWFlNjNkMjQ2MmY5ZjA5ZWI1YWQ3NjU=
Judges are still people, yet they ought to ask themselves if their job is a higher calling, or not. Until they address and deal with it themselves, the lawmakers and the citizenry have to attend to all the implications and consequences. The "Law & Order" franchise merely encapsulates the effect, yet the writers yield considerable influence.
Like the judges, it's on the writers to decide on whether they wish to offer honest slices of legal system life, heart-wrenching drama, both or neither. The "Law & Order" franchise's effectiveness has been demonstrating legal realism with pathos, which has been slipping away in recent times. The test will be if they can regain the winning formula of accurate-yet-riveting legal drama.
What happens in reality may be reflected on a future episode. However, in certain cases, life can imitate art (Andrea Yates). The stakes for "empathy vs. law" has never been higher in our hyper-political climate. Forever in the sidelines, the judges have and will affect the L&O viewer in one form of reality or another.
(1) - Obama's empathy comments can be read within the link.
Link: http://hotair.com/archives/2009/05/01/good-news-obama-promises-souters-replacement-will-be-big-on-empathy/
*I forget which episode the exchange occurred -- I'm semi-certain that it was Gunshow. My appreciation for anyone assisting me on it.
Update (5/11): Jeff Jacoby, a columnist for the Boston Globe, has written against the empathy argument. If one needs convincing from a mainstream media perspective, Jacoby performs it deftly. Jacoby also does his homework, for he links his examples within the text of his op-ed below. Special thanks to Hotair.com.
Lady Justice's blindfold
By Jeff Jacoby
Globe Columnist / May 10, 2009
Judicial dispassion - the ability to decide cases without being influenced by personal feelings or political preferences - is indispensable to the rule of law. So indispensable, in fact, that the one-sentence judicial oath required of every federal judge and justice contains no fewer than three expressions of it: "I . . . do solemnly swear 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 . . . under the Constitution and laws of the United States, so help me God."
There are biblical echoes in the wording of that oath - a reminder that the judge's obligation to decide cases on the basis of fact and law, without regard to the litigants' wealth or fame or social status, is a venerable moral principle.
"You shall not show partiality in judgment; you shall hear the small and the great alike," says Moses in Deuteronomy, instructing the Israelite judges. "You shall not distort justice; you shall not respect persons, and you shall not take a bribe."
Elsewhere they are reminded that it is not only the rich they are forbidden to favor. "Neither shall you be partial to a poor man in his dispute," Exodus firmly warns. Judges may not bend the law, not even to help the underprivileged.
Without judicial restraint there is no rule of law. We live under "a government of laws and not of men" only so long as judges stick to neutrally resolving the disputes before them, applying the law, and upholding the Constitution even when doing so leads to results they personally dislike. That is why the judicial oath is so adamant about impartiality. That is why Lady Justice is so frequently depicted - as on the sculpted lampposts outside the US Supreme Court - wearing a blindfold and carrying balanced scales.
And that is why President Obama's "empathy" standard is so disturbing, and has generated so much comment.
Time and again, Obama has called for judges who do not put their private political views aside when deciding cases. In choosing a replacement for Justice David Souter, the president says, he will seek not just "excellence and integrity," but a justice whose "quality of empathy, of understanding and identifying with people's hopes and struggles," would be "an essential ingredient" in his jurisprudence. In an interview last year, he said he would look for judges "sympathetic" to those "on the outside, those who are vulnerable, those who are powerless."
When he voted against the confirmation of Chief Justice John Roberts in 2005, Obama declared that the "truly difficult" cases that come before the Supreme Court can be decided only with reference to "the depth and breadth of one's empathy," and that "the critical ingredient is supplied by what is in the judge's heart."
But such cardiac justice is precisely what judges "do solemnly swear" to renounce. Sympathy for others is an admirable virtue. But a judge's private commiserations are not relevant to the law he is expected to apply.
If Obama means what he says, he wants judges who will violate their oath of office.
"We need somebody who's got the heart - the empathy - to recognize what it's like to be a young teenage mom," he told a Planned Parenthood conference in 2007. "The empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."
With such criteria, what would remain of the rule of law? What would happen to "Equal Justice Under Law," which is carved above the Supreme Court's entrance? What would be left of the 14th Amendment's guarantee of "equal protection of the laws" to every citizen?
Lady Justice wears a blindfold not because she has no empathy for certain litigants or groups of people, but because there is no role for such empathy in a courtroom.
"Our constitution is color-blind," wrote Supreme Court Justice John Marshall Harlan, in his great dissent in Plessy v. Ferguson, "and neither knows nor tolerates classes among citizens." Harlan had supported slavery; he believed whites were superior to nonwhites. He had his empathies, but he confined his judging to the law.
Jeff Jacoby can be reached at jacoby@globe.com.
© Copyright 2009 Globe Newspaper Company.
Link: http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/05/10/lady_justices_blindfold/
SVU's "Crush" was a convoluted look into two subjects familiar in the "Law & Order" franchise (and the real world): judges and the potential of judicial activism. In-series prosecutors have been often weary on whether a judge will circumvent their usual role into outright activism (MS' "Gunshow," SVU's "Poison"). The quiescential example would be MS' Judge Wright.
Wright was introduced late into the Jamie Ross-era with "Damaged." In the episode, he set aside the original verdict, prompted defense counsel and ignored the second verdict. He became a recurring judge in the Jack/Abbie-era, clashing with Jack McCoy overtly in "Gunshow" and passive-aggressively in "Dissonance." Ironically, he occasionally displayed a moderate streak in both MS' "Harm" and his TBJ cameo.
A real-life debate is underway in light of David Souter's impending retirement from the Supreme Court. President Barack Obama even remarked in late 2008 about empathy being a major issue of judicial appointments. (1) The fictional versions certainly have been covered extensively in MS: McCoy had to listen to Wright's Emmy-bait final monologue in "Gunshow" and had to deal with a judge's potential empathy in "The Chosen." (McCoy feared a Jewish bias from both judge and jury over a pro-Jewish defendant.)
Meanwhile, discussion on the judge's true role in the law has already been taken into overdrive. Countless people clash over Supreme Court judges following the strict letter of the Constitution vs. subscribing to the "evolving, breathing document" mindset. A major sub-argument has been the concept of states' rights vs. judges producing new law, particularly on social policy.
In fact, an upper echelon judge directly asked McCoy on his attempt to set social policy in a Jack/Abbie-era episode. He rejoined on how "the courts have always been agents of social change."* Regarding the issue, Sonia Sotomayor (a possible Supreme Court candidate) recently argued on how courts create policy.
Click to viewHotair.com has an interpretation worth mentioning:
Of course courts make policy. Every time they “interpret” a constitutional clause or statute, they add interpretive rules to guide lower courts; because of stare decisis, every court opinion is in essence a new bit of binding policy gloss on the statute in question. For example, there’s nothing in the Constitution about when defamatory speech should be protected. The public figure/private figure standard is a judicial creation which operates in effect as policy because that’s the standard lower courts apply when weighing a First Amendment defense to defamation.
All Sotomayor’s saying, I think, is that it’s pointless to pretend judges don’t have an active hand in shaping policy. That’s standard legal realism, contra the silly legal formalist theory of judges somehow suppressing all human bias and “scientifically” deducing the answers to tough problems. Because she’s a sitting judge she has to pay lip service to the idealism of the latter, but let’s not kid ourselves.
Link: http://hotair.com/archives/2009/05/03/sotomayor-courts-are-where-policy-is-made/
Given such logic, McCoy was correct about the dropping of the pretense. Lennie Briscoe had a Branch-era observation on jurors being people, carrying their prejudices and perspectives, as opposed to being guided by "Pentium processors." It is all part of the legal realism, and the same standard to be applied to both judges and prosecutors.
Thomas Sowell probes the issue of "empathy vs. law" directly into two commentaries. The second commentary elaborates on Oliver Wendell Holmes, which may captivate the Jack/Abbie-era based legal scholars. McCoy and Carmichael actually discussed on Holmes in MS' "Hate." Holmes was again cited in 2005's "Birthright."
‘Empathy’ vs. Law
When you buy words, you had better know what you are buying.
By Thomas Sowell
Justice David Souter’s retirement from the Supreme Court presents Pres. Barack Obama with his first opportunity to appoint someone to the High Court. People who are speculating about whether the next nominee will be a woman, a Hispanic, or whatever, are missing the point.
That we are discussing the next Supreme Court justice in terms of group “representation” is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.
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 farther 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.
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? Nothing could be farther from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.
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.
We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law becomes meaningless when it is replaced by the empathies of judges.
Barack Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words “rule of law.” And if you are willing to buy it, he will keep on selling it.
Those people who just accept soothing words from politicians they like are gambling with the future of a nation. If you were German, would you be in favor of a law “to relieve the distress of the German people and nation”? That was the law that gave Hitler dictatorial power.
He was just another German chancellor at the time. He was not elected on a platform of war, dictatorship, or genocide. He got the power to do those things because of a law “to relieve the distress of the German people.”
When you buy words, you had better know what you are buying.
In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.
Justice John Paul Stevens virtually destroyed the Constitution’s restrictions on government officials’ ability to confiscate private property in his 2005 decision in the case of Kelo v. New London - 30 years after President Ford appointed him.
The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues - whether private property, abortion, or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law - what has been called “a government of laws and not of men.”
Under the American system of government, this cannot be done overnight, or perhaps even during the terms in office of one president - but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.
Some people say that whomever Barack Obama appoints to replace Justice Souter doesn’t really matter, because Souter is a liberal who will probably be replaced by another liberal. But if no one sounds the alarm now, we can end up with a series of appointees with “empathy”- which is to say, with justices who think their job is to “relieve the distress” of particular groups, rather than to uphold the Constitution of the United States.
- Thomas Sowell is a senior fellow at the Hoover Institution.
© 2009 CREATORS SYNDICATE, INC.
Link: http://article.nationalreview.com/?q=MzM0MzdiMTVhZTgxNmE5ZGYzZWY3M2UyNDQ3NjI3NWY=
‘Empathy’ Versus Law: Part II
Obama vs. Oliver Wendell Holmes.
By Thomas Sowell
The great Supreme Court justice Oliver Wendell Holmes Jr. is not the kind of justice who would have been appointed under Pres. Barack Obama’s criterion of “empathy” for certain groups.
Like most people, Justice Holmes had empathy for some and antipathy for others, but his votes on the Supreme Court often went against those for whom he had empathy and in favor of those for whom he had antipathy. As Holmes himself put it: “I loathed most of the things in favor of which I decided.”
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’s 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.”
By the same token, Justice Holmes did not let his sympathies with some people determine his votes on the High Court. As a young man, Holmes had dropped out of Harvard to go fight in the Civil War because he opposed slavery. In later years, he expressed his dislike of the minstrel shows that were popular at the time “because they seem to belittle the race.”
When there were outcries against the prosecution of Sacco and Vanzetti in the 1920s, Holmes said in a letter, “I cannot but ask myself why this so much greater interest in red than black. A thousand-fold worse cases of negroes come up from time to time, but the world does not worry over them.”
Yet when two black attorneys appeared before the Supreme Court, Holmes wrote in another letter to a friend that he had to “write a decision against a very thorough and really well expressed argument by two colored men” - an argument “that even in intonation was better than, I should say, the majority of white discourses that we hear.”
Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society. He had a very clear sense of what the role of a judge was - and wasn’t.
Justice Holmes saw his job to be “to see that the game is played according to the rules whether I like them or not.“
That was because the law existed for the citizens, not for lawyers or judges, and the citizens had to know what the rules were in order to obey them.
He said: “Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts.”
Legislators existed to change the law.
After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: “Do justice, sir. Do justice.”
Holmes had the carriage stopped. “That is not my job,” he said. “My job is to apply the law.”
Holmes wrote that he did not “think it desirable that the judges should undertake to renovate the law.” If the law needed changing, that was what the democratic process was for. Indeed, that was what the separation of powers in legislative, executive, and judicial branches by the Constitution of the United States was for.
“The criterion of constitutionality,” he said, “is not whether we believe the law to be for the public good.” That was for other people to decide. For judges, he said: “When we know what the source of the law has said it shall be, our authority is at an end.”
One of Holmes’s judicial opinions ended: “I am not at liberty to consider the justice of the Act.”
Some have tried to depict Justice Holmes as someone who saw no need for morality in the law. On the contrary, he said: “The law is the witness and external deposit of our moral life.” But a society’s need to put moral content into its laws did not mean that it was the judge’s job to second-guess the moral choices made by others who were authorized to make such choices.
Justice Holmes understood the difference between the rule of law and the rule of lawyers and judges.
- Thomas Sowell is a senior fellow at the Hoover Institution.
© 2009 CREATORS SYNDICATE, INC.
Link: http://article.nationalreview.com/?q=YjNhMWFhZGIxNWFlNjNkMjQ2MmY5ZjA5ZWI1YWQ3NjU=
Judges are still people, yet they ought to ask themselves if their job is a higher calling, or not. Until they address and deal with it themselves, the lawmakers and the citizenry have to attend to all the implications and consequences. The "Law & Order" franchise merely encapsulates the effect, yet the writers yield considerable influence.
Like the judges, it's on the writers to decide on whether they wish to offer honest slices of legal system life, heart-wrenching drama, both or neither. The "Law & Order" franchise's effectiveness has been demonstrating legal realism with pathos, which has been slipping away in recent times. The test will be if they can regain the winning formula of accurate-yet-riveting legal drama.
What happens in reality may be reflected on a future episode. However, in certain cases, life can imitate art (Andrea Yates). The stakes for "empathy vs. law" has never been higher in our hyper-political climate. Forever in the sidelines, the judges have and will affect the L&O viewer in one form of reality or another.
(1) - Obama's empathy comments can be read within the link.
Link: http://hotair.com/archives/2009/05/01/good-news-obama-promises-souters-replacement-will-be-big-on-empathy/
*I forget which episode the exchange occurred -- I'm semi-certain that it was Gunshow. My appreciation for anyone assisting me on it.
Update (5/11): Jeff Jacoby, a columnist for the Boston Globe, has written against the empathy argument. If one needs convincing from a mainstream media perspective, Jacoby performs it deftly. Jacoby also does his homework, for he links his examples within the text of his op-ed below. Special thanks to Hotair.com.
Lady Justice's blindfold
By Jeff Jacoby
Globe Columnist / May 10, 2009
Judicial dispassion - the ability to decide cases without being influenced by personal feelings or political preferences - is indispensable to the rule of law. So indispensable, in fact, that the one-sentence judicial oath required of every federal judge and justice contains no fewer than three expressions of it: "I . . . do solemnly swear 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 . . . under the Constitution and laws of the United States, so help me God."
There are biblical echoes in the wording of that oath - a reminder that the judge's obligation to decide cases on the basis of fact and law, without regard to the litigants' wealth or fame or social status, is a venerable moral principle.
"You shall not show partiality in judgment; you shall hear the small and the great alike," says Moses in Deuteronomy, instructing the Israelite judges. "You shall not distort justice; you shall not respect persons, and you shall not take a bribe."
Elsewhere they are reminded that it is not only the rich they are forbidden to favor. "Neither shall you be partial to a poor man in his dispute," Exodus firmly warns. Judges may not bend the law, not even to help the underprivileged.
Without judicial restraint there is no rule of law. We live under "a government of laws and not of men" only so long as judges stick to neutrally resolving the disputes before them, applying the law, and upholding the Constitution even when doing so leads to results they personally dislike. That is why the judicial oath is so adamant about impartiality. That is why Lady Justice is so frequently depicted - as on the sculpted lampposts outside the US Supreme Court - wearing a blindfold and carrying balanced scales.
And that is why President Obama's "empathy" standard is so disturbing, and has generated so much comment.
Time and again, Obama has called for judges who do not put their private political views aside when deciding cases. In choosing a replacement for Justice David Souter, the president says, he will seek not just "excellence and integrity," but a justice whose "quality of empathy, of understanding and identifying with people's hopes and struggles," would be "an essential ingredient" in his jurisprudence. In an interview last year, he said he would look for judges "sympathetic" to those "on the outside, those who are vulnerable, those who are powerless."
When he voted against the confirmation of Chief Justice John Roberts in 2005, Obama declared that the "truly difficult" cases that come before the Supreme Court can be decided only with reference to "the depth and breadth of one's empathy," and that "the critical ingredient is supplied by what is in the judge's heart."
But such cardiac justice is precisely what judges "do solemnly swear" to renounce. Sympathy for others is an admirable virtue. But a judge's private commiserations are not relevant to the law he is expected to apply.
If Obama means what he says, he wants judges who will violate their oath of office.
"We need somebody who's got the heart - the empathy - to recognize what it's like to be a young teenage mom," he told a Planned Parenthood conference in 2007. "The empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."
With such criteria, what would remain of the rule of law? What would happen to "Equal Justice Under Law," which is carved above the Supreme Court's entrance? What would be left of the 14th Amendment's guarantee of "equal protection of the laws" to every citizen?
Lady Justice wears a blindfold not because she has no empathy for certain litigants or groups of people, but because there is no role for such empathy in a courtroom.
"Our constitution is color-blind," wrote Supreme Court Justice John Marshall Harlan, in his great dissent in Plessy v. Ferguson, "and neither knows nor tolerates classes among citizens." Harlan had supported slavery; he believed whites were superior to nonwhites. He had his empathies, but he confined his judging to the law.
Jeff Jacoby can be reached at jacoby@globe.com.
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Link: http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/05/10/lady_justices_blindfold/