Tuesday, May 26, 2009

Empathy and the Court

[From Joel] President Obama's selection of a person who he judges will have the proper "empathy" brings up an interesting point concerning the evolution and philosophy of law. The history of law is one in which individual cases were decided one by one by the ruler or his designate based upon subjective conditions. The rightness or wrongness of a certain action was unpredictable, because there was no fixed code.

Hammurabi's law code, the first written code of laws in human history, marked a breakthrough in the concept of justice. Later on the concept of precedents limiting the latitude of judges to decide as they saw fit, gave us a government of laws not of men.

Theoretically, empathy and sympathy only enter into the penalty phase in the form of "mitigating circumstances" except for the situation in which the jury illegally ignores the law.

The notion that a supreme court justice is to empathize with the individuals or individual involved in a case before it, seems a strange concept , since cases become precedents. It leaves us with a situation in which the law loses one of it's most fundamental characteristics, that of reliability. For every case that is brought to court there are probably hundreds that are prosecuted (or not) at the local level based upon templates previously established by the supreme court. For every case prosecuted or not there are thousands of ordinary people and businesses who govern their behavior based upon these templates.

How is our massive society to function if we revert to an empathetic "Solomon the Wise" approach to justice?

-Joel

26 comments:

JohnS said...

I am currently reading an interesting book. It can be best described as an anthology on a large number subjects. One, TWELVE SUPREME COURT DECISIONS WORTH KNOWING BY NAME. In which the author discusses each case in a short essay. If these cases are typical, it seems that the Supreme Court has always been creative in interpreting the Constitution. I am including short phrases from some of the cases as the author presented them to make my point.
MARBURY V. MASISON 1803, Marshall’s decision was “the classic mix of law and politics that approaches art”.
DRED SCOTT V. SANFORD 1857, “Negroes were not citizens of the United States and were not therefore entitled to sue people”.
SCHENCK V. UNITED STATES 1919, “The principle of ‘clear and present danger’ became one of the rare justifications for restraining freedom of speech, (until the 1990s, that is, when political correctness seemed like reason enough for some people)”.
MIRANDA V. ARIZONA 1966”, Miranda and the ACLU were naturally appreciative of the Court’s libertarian stance”.

I am not judging these cases, or judging Roosevelt’s attempt to stack the Court rather pointing out that Obama has plenty of prior examples of tailoring the constitution so why not "empathy" as a constitutional right or goal. With that said I agree with Joel, Supreme Court decisions should lie within the intent of the constitution and not extrapolate the constitution beyond the intent of the founders.

JohnS said...

Regardless of your opinion of Glen Beck and Fox, Glen’s program interviewed two people who made the good point that empathy is one sided when viewing legal matters . If one is empathetic toward A then B loses if one is empathetic toward B then A loses. This is not what our courts are about. Empathy has no place in the judicial arena.

Ira Glickstein said...

Ideally, Joel, the law should be totally predictable and inevitable - a nation of laws not of men. If the evidence is clear and irrefutable, most cases are fairly straightforward and, as you suggest, "empathy" and "mitigating circumstances" should be reserved for the punishment phase alone.

Yet, the cases that are the most memorable are often so because of a "Solomon" approach. Solomon's unusual decision to "cut the baby in half" revealed who the true mother was. The judge who ruled that the poor man was requred to give the horse he stole back to the rich man -after the harvest- is another.

Gilbert and Sullival's Mikado mocks the idea of the strict interpretation of the law. Ko-Ko and Pooh-Bah claim to have beheaded a man who was in disguise. Here is a bit of the dialog:

****************************

Mikado: "My poor fellow, in your anxiety to carry out my wishes, you have beheaded the heir to the throne of Japan!"

Ko-Ko: "But I assure you we had no idea"

Pooh-Bah: "But, indeed, we didn't know"

Mikado: "Of course you hadn't. How could you? Come, come, my good fellow, don't distress yourself it was no fault of yours. If a man of exalted rank chooses to disguise himself as a second trombone, he must take the consequences. It really distresses me to see you take on so. I've no doubt he thoroughly deserved all he got."

Ko-Ko. "We are infinitely obliged to your Majesty"

Mikado: "I forget the punishment for compassing the death of the Heir Apparent ... Something lingering, with boiling oil in it, I fancy. ... Come, come, don't fret I'm not a bit angry."

Ko-Ko: [In abject terror] "If your Majesty will accept our assurance, we had no idea"

Mikado. "Of course you hadn't. That's the pathetic part of it. Un-fortunately the fool of an act says 'compassing the death of
the Heir Apparent' There 's not a word about a mistake, or not knowing, or having no notion. There should be, of course, but there isn't. That's the slovenly way in which these acts are drawn. However, cheer up, it'll be all right. I'll have it altered next session."
*******************************

According to Wikipedia John Adams wrote his pamphlet Thoughts on Government in 1776.

"Many historians argue that Thoughts on Government should be read as an articulation of the classical republican theory of mixed government. Adams contended that social classes exist in every political society, and that a good government must accept that reality. For centuries, dating back to Aristotle, a mixed regime balancing monarchy, aristocracy, and democracy, or the monarch, nobles, and people was required to preserve order and liberty. ...

"Unlike others, Adams thought that the definition of a republic had to do with its ends, rather than its means. He wrote in Thoughts on Government, there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is 'an empire of laws, and not of men.'' ..."


Ira Glickstein

Howard Pattee said...

Empathy means seeing things from another person’s viewpoint, not just your personal view. It does not imply, like sympathy, that you agree with that viewpoint. Of course courts should follow the law. That is not the issue. The problem is that laws are incomplete and ambiguous. If they were complete and unambiguous our life would be determined by them like robots.

The Supreme Court does not get cases where the law is clear. It gets cases where the law does not give an unambiguous answer. In other words, they must make decisions with incomplete information or instructions from the law. From what other source, then, should they expect guidance? Should they be conservative and just say “No”? Should they flip a coin?

Ira Glickstein said...

I'm pleased Joel's Topic has activated you again Howard.

I agree with you that Supreme Court cases are usually those where the application of law is most ambiguous. When lower court decisions are appealled to the Supreme Court and accepted we may expect the Supreme Court justices to split, often on the basis of judicial philosophy as well as empathy and personal experience.

Thanks for making the key distinction between empathy and sympathy. While the ability to see things from another's perspective may often engender sympathy, it does not guarantee it. Up to this point I agree with you.

Where I side with Joel is when empathy leads to sympathy and thence to decisions that turn the law on its head.

I think the people, through their elected legislators, should make the law. Judges should interpret the law fairly, with empathy and understanding, but they should not make new law.

Example: Title VI of the Civil Rights Act of 1964 says "... all persons must be treated equally without regard to their race, color, or national origin ..." [emphjasis added].

That very law has been interpreted by some courts to require records to be kept of the race of applicants and scores on qualification tests and so on. In effect, and in my personal experience, hiring and promotions are made with regard for race and gender, turning the law on its head!

Ira Glickstein

Ira Glickstein said...

I'm currently reading Team of Rivals, Doris Kearns Goodwin's book about Lincoln, Seward, Chase, and Bates. On page 109 she relates the case of Matilda, a light-skinned young slave brought to the free state of Ohio by a Missouri planter who was both her master and father.

She sought refuge, was discovered by a slave catcher and brought before an Ohio judge. Chase defended her, arguing she acquired legal right to her freedom as soon as she stepped into free territory. The judge went by the letter of the Fugitive Slave Law and she was forced to return to her master in the slave state of Missouri.

That is a fairly clear example where some empathy on the part of the judge would have been right and just - the plain words of the law be damned!

While on the subject of ignoring the law, I believe that, in certain cases, jury nullification is justified. Of course, jury nullification was wrong in the OJ case, but, as a principle, I think it is sometimes justified. I would not want to prosecute the juror or jurors who violate their "duty" and answer to what they consider a higher authority.

Ira Glickstein

Howard Pattee said...

We all agree that sympathy is not a good basis for legal decisions.

My question was: On what basis should a supreme court judge make a decision if no law clearly applies to a particular case?

joel said...

John Sullivan said: Obama has plenty of prior examples of tailoring the constitution so why not "empathy" as a constitutional right or goal.

Joel responds: It seems to me that President Obama's call for a judge with empathy coupled with Judge Sotomayor's statements moves us into an entirely different realm of revolution in judicial philosophy. I guess I should say counter-revolution, since it reverses two thousand years of progress. The goal has always been blind justice even if it wasn't always achieved as John so rightly pointed out in individual case. However, goals and ideals are important even if many judges in the real world are influenced by politics and prejudices. It gives us something to aspire to and calls upon our best instincts. To accept empathy as a judging technique is to fly in the face of neutrality as a principle. In the Dred Scott case, we might say that the majority decided based upon their empathy: their empathy for the slave owner's property rights and his sadness at having lost a valuable slave. I think that Dred Scott might have preferred neutrality.

As an example, the totally democrat appointed Supreme Court of the State of Florida unanimously decided in favor of Al Gore in the 2000 elections each time it was called upon to interfere in the political process. However, in it's last and most obviously politically motivated decision concerning the election, the chief justice apparently could stand it no more. He dissented and scolded his colleagues. He was only a single vote, but there was an ideal to be upheld and a point beyond which he couldn't go even though he was appointed by a democrat. If we accept President Obama's notion of judicial qualification and Judge Sotomayer's contention that her decisions are better that a white male's decisions, we are dealing not with a single decision but with an entire judicial framework. The statue of Justice will need to be renovated so as to remove the blindfold and place Justice's thumb on one of the the scale pans. -with respect -Joel
P.S. I think that Ira gave us a perfect example in G&S of a situation in which the verdict should be "guilty", but the sentence should be suspended , because of mitigating circumstances. The law can be upheld while humanity is shown toward those who trespass.

joel said...

Howard said: The Supreme Court does not get cases where the law is clear. It gets cases where the law does not give an unambiguous answer. In other words, they must make decisions with incomplete information or instructions from the law. From what other source, then, should they expect guidance? Should they be conservative and just say “No”? Should they flip a coin?

Joel responds: I doubt that one can support the above generality. SCOTUS decisions are more often about there being TOO much law. In other words, there is a state law which is very specific and someone has been convicted in court at the local level. The defendant then appeals based upon what they claim is a conflict between federal law (usually the constitution) and the local law. For example, there's a specific state or local law against flag burning and the court decides that the First Amendment trumps the local law. In the case of Roe versus Wade, there was a specific state law against abortion and SCOTUS found a conflicting right to abortion flowing out of the right to privacy which another supreme court found flowed out of the right to be free of unreasonable search and seizure. The same is true for various cases involving capital punishment. Some state laws prescribe the death penalty, but the Supreme Court, rather than saying that the constitution is silent on the issue, nullified the existing state law on the pretext that the constitution forbidding "cruel or unusual punishment" implies something other than torture.

Empathy can only be felt by an individual for another individual or a class of individuals. One cannot "feel" anything or be "in the shoes" of the state or the society. In some cases empathy is accompanied by sympathy, but often it is not. Miranda was not a sympathetic criminal, but this did not prevent the court from releasing him on an invented constitutional right though he violated a clear and specific local law. No, I'm afraid I can't agree that the problem is a lack of legal clarity which would otherwise force us to toss a coin were it not for empathy. With respect- Joel

Howard Pattee said...

Joel says, “No, I'm afraid I can't agree that the problem is a lack of legal clarity.”

If the law were clear, why is there always so much litigation? It seems obvious me that it is just because of the ambiguities of law (whether too much or too little) that we have lawyers and judges. If the law were so clear, why after years of litigation are the final decisions often split with the result coming down to one person’s opinion?

I'll modify my question: On what basis should a supreme court judge make a decision if laws and precedents do not provide a clear basis for decision one way or the other?

Ira Glickstein said...

Great discussion - so here is where "Solomon" comes in and divides the "baby" between the disputants!

The law is not and cannot be completely clear. In just those cases where it is not clear (either due to lack of law applicable to that case or conflicting laws), judges must use the judgement! In just those cases, their personal legal philosophy, experience, empathy, and sympathy apply - and should and must apply. (Which is why we want justices who have legal and political philosophies and experiences most like our own).

However, there is lots of litigation where the law is very clear. That litigation comes because political, or industry, or labor interest groups and others who can afford to go to court do not agree with the plain meaning of the existing law. Failing to get the law changed by legislatures, they appeal to judges who have similar personal opinions regarding political/industry/labor interests. Those judges make new law out of whole cloth, using convoluted arguments.

The example I gave regarding the Fugitive Slave Law applies here. For valid political reasons (which I understand better now that I am reading Goodwin's Team of Rivals), neither national party of that time could muster the votes to undo that Law. Both the Whigs and Democrats had office holders and substantial supporters in slave states as well as supporters whose industries depended upon trade with the south. As a result, over a couple of decades, various compromises were reached. In each case, they found it necessary to retain the Fugitive Slave Law that required free states to return runaway slaves to their legal masters in the south. During that time, some northern judges violated the plain meaning of the law - to their credit! Others had plenty of sympathy with the runaway slaves but either believed in the "rule of law" or feared they would be reversed by higher courts or voted out of office if they did not return them. It took the breakup of the Union and the Civil War to reunite the Union and resolve that issue.

In other cases where the law is quite clear, interests with deep pockets hire superior lawyers and invent technicalities to get around the law, particularly if the case is between a rich or well-connected person or industry or pressure group and one that is not so well off.

Ira Glickstein

joel said...

Despite the many historical occasions where public pressure and political interests have influenced decisions of the court, one hopes that we can find judges who aspire to the attain the wisdom of a justice like Justice Scalia. Here is a man who voted against the flag burning prohibition when his natural constituency was overwhelmingly in favor of the ban. Neither his empathy nor his sympathy entered into his decision, only the law and precedent. with respect- Joel

joel said...

Ira said: During that time, some northern judges violated the plain meaning of the law - to their credit! Others had plenty of sympathy with the runaway slaves but either believed in the "rule of law" or feared they would be reversed by higher courts or voted out of office if they did not return them. It took the breakup of the Union and the Civil War to reunite the Union and resolve that issue.

Joel responds: I find this raises an extremely interesting point. Had judges not nullified the law and allowed the political process to take place in its own good time, would the Civil War have taken place? Would the South have thought it necessary to secede, if they thought they could rely on the rule of law despite the election of Lincoln? Is it possible that millions of lives were lost during the war, because empathy ruled instead of law? With respect- Joel

Howard Pattee said...

One of my favorite conservatives, Davis Brooks, wrote the following in today’s NY Times.
“People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.”

Read the entire column.

Ira Glickstein said...

Joel asks: "... Had judges not nullified the law and allowed the political process to take place in its own good time, would the Civil War have taken place? Would the South have thought it necessary to secede, if they thought they could rely on the rule of law despite the election of Lincoln? Is it possible that millions of lives were lost during the war, because empathy ruled instead of law?"


Based on my reading so far of Team of Rivals I don't think so. Political compromises were reached from the time of the Constitution (slaves were counted as 3/5 of a person for purposes of Congressional representation) to Missouri in 1830 and Kansas-Nebraska in 1850 and beyond. Nearly all northerners were content to allow slavery to continue in the original southern states but were adamant not to allow it to spread to the territories and newly-formed states.

Northern nullifying judges were relatively rare, a minor irritant to the south. Most northerners did not think negroes the equals of whites - free negroes in the north were generally not allowed to vote or serve on juries.

The breaking point for the south was that, absent new slave states to balance new free states, they would eventually lose their influence in the national government. Therefore, they could not accept any compromise that prevented formation of new slave states.

The anti-slavery northerners were motivated by the moral issue that negroes were men and therefore entitled to eat the bread they earned without interference from a master, and the politico-economic issue that the north favored policies different from the south (tariff, national bank, nationally-funded improvements to waterways and other infrastructure). They were willing to hold their nose and look the other way as slavery continued in the south, but could not accept any compromise that allowed it to spread to the new states.

I am now at 1859 in the book where John Brown and his rag-tag group attacked the federal arsenal at Harpers Ferry, hoping to start a slave rebellion in the south. They were put down by Col. Robert E. Lee. Northerners were sympathetic to Brown's cause but generally agreed he had to be put to death.

I have not yet reached the election of Lincoln and the final breach, but it does not seem to me "the Law" and "the political process ... in its own good time" could have resolved the issue peaceably.

History shows that even after the Civil War and emancipation, and all those deaths on both sides, free blacks remained a legal underclass in the south up to our lifetimes. Had compromise been reached, say to limit slavery to the original south and abolish the Fugitive Slave Law, it is likely slavery would still exist there. The US would have been fatally disunited and far weaker. World history would have been quite different.

Ira Glickstein

Ira Glickstein said...

I read the David Brooks piece linked by Howard.

Brooks starts: "The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.OK, it is a useful fiction - an ideal we may strive for but never reach.

I am surprised at the part Howard quoted: "...People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row."

Is Brooks suggesting that by striving to put emotions aside and make rational decisions judges are becoming sociopaths? Of course not! So why the use of that word by Brooks and why is it put forth by Howard?

Brooks says: "...Emotions are the processes we use to assign value to different possibilities."Say what? Does a stock trader or investor use emotion to assign value to his or her choices? Sure, to some extent they do, but it makes more sence and leads to better results if the decision is mostly based on a rational, fact-based evaluation of the realistic risks and rewards of a given decision.

I think judges should do the same. They should understand their emotions and strive to reach the "useful falsehood" that we are a nation of laws not men - to the extent that is humanly possible.

Oh, but if the case is as eggregious as the Fugitive Slave Law, where innocent human beings are being shipped back from freedom to slavery, they should RATIONALLY use their power of nullification!

But, ONLY if it reaches that level. If it does not, then they are making law out of whole cloth, which is the job of the legislative branch according to our Constitution. Joel and I object to that.

Ira Glickstein

Howard Pattee said...

Ira asks: “Is Brooks suggesting that by striving to put emotions aside and make rational decisions judges are becoming sociopaths? Of course not! So why the use of that word by Brooks and why is it put forth by Howard?”

I quoted that passage because it is a well-known fact. As Brooks correctly stated, sociopaths are ". . .People without social emotions like empathy. . .” (See any reference on psychopathology)

In case you didn’t realize it, your love of truth and reason is an emotion.

Ira Glickstein said...

Yes, Howard, I wrote a paper for your class a decade and a half ago showing that our emotional system is the ombudsman for the greater society and the longer future.

Properly socialized young men march willingly off to war when the jungle drums sound, despite the danger to themselves. Mothers sacrifice for their children, people give to the poor and do other acts not to their immediate selfish interests. Our emotional system makes us feel good when we do these things.

As your colleague Don Gause maintained, our emotional system is designed to get us to do what is in our "enlightened self-interest" (and that of others with whom we share genes and memes) rather than succumb to immediate selfish gratification.

I do not doubt that sociopaths, either due to their genetic or memetic inheritance, or both, lack that kind of properly socialized emotional system.

What I do not understand is why Brooks couples the danger of sociopathy with choosing a Supreme Court Justice. Have many Supreme Court judges been sociopaths?

Perhaps Chief Justice Taney who ruled against Dred Scott was a sociopath? Were all six Justices who concurred that Scott "had no rights the white man was bound to respect" also sociopaths? I don't think so.

I also do not understand why President Obama made such a big point about empathy being critical in his choice. As you point out, all humans (excepting sociopaths) have empathy. Did he give special instructions to his staff to weed out known sociopaths from the final list?

In his final paragrpah, Brooks writes: "Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It’s not whether judges rely on emotion and empathy, it’s how they educate their sentiments within the discipline of manners and morals, tradition and practice." [Emphasis added]Ira Glickstein

Howard Pattee said...

Ira asks, “What I do not understand is why Brooks couples the danger of sociopathy with choosing a Supreme Court Justice.”

He does not couple sociopathy with choosing a justice. Read the first three paragraphs of Brooks carefully. If you still don’t follow his logic, I’ll help you out.

Also, Brooks’ statement, “Emotions are the processes we use to assign value to different possibilities,” is obviously in the context of jurisprudence, not playing the stock market.

Why do you feel it is necessary to emphasizing his last paragraph for me? I’m the one who agrees with him!

Ira Glickstein said...

Thanks Howard for your offer. I re-read the first three paragraphs three times and still do not understand. Here is my take on the paragraphs, please help me out with yours.

Para #1: Useful falsehood. No human-run justice system can be perfectly reasonable and unsullied by human emotions. However, it is useful to think the American legal system strives to reach this ideal and has come as close as humanly posible.

Para #2: Role of emotions in decision making. I agree emotions always have a strong role in decision making and that they move us towards things that give pleasure and away from things that give pain. Perhaps you can tell me what Brooks means when he says: "Emotions are the processes we use to assign value to different possibilities." In informal life we do what gives us pleasure. However, in professional life, we study different courses of action and calculate risks and rewards, attempting to reduce the role of raw emotions. You did that as a physicist and professor and I as an engineer. Are legal professionals different?

Para #3: Sociopaths. People without social emotions like empathy are sociopaths who often end up on death row. I agree with that, but, please tell me how that truth relates to selection of a Supreme Court Justice.

THANKS for your participation. It often took a while for me to catch on, but you taught me quite a lot as my Professor and Chairman of my PhD Committee.

Ira Glickstein

Anonymous said...

It seems that we are making a fundamental mistake here. Yes, a sociopath lacks empathy, but those who withhold empathy are not necessarily sociopaths. A sociopath is INCAPABLE of empathy.

Also, let's remember that Solomon the Wise used the baby division threat as an investigative technique not a real judgment. We would have no reason to admire his wisdom if a "split decision" was his actual intent. -Joel

Howard Pattee said...

Here is my interpretation. Obama recently raised the empathy issue in choosing a justice. It is not the first time. In voting against Justice Robert’s confirmation Obama said that 95% of decisions are based on interpretation of law, but the crucial decisions that affect human individuals (abortion, assisted suicide, the death penalty, gay rights) require more than doctrinaire conservative ideology (for which Roberts is noted). Obama felt that wise decisions that directly affect individual lives require empathy.

Brooks’ column is in this context. His title is The Empathy IssueBrooks’ point is that purely rational decisions are impossible, and it is an illusion to pretend otherwise. The two paragraphs are just to support this point.

The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
These are simple generalizations to make his point. Obviously you can find exceptions. Remember the context here is the ethical decisions on legally ambiguous issues like abortion, assisted suicide, the death penalty, gay rights, not about engineering and the stock market! Brooks is simply supporting his claim that rational decisions are impossible. Emotions are inherent in all value-laden decisions. (He could have supported this with many psychological experiments)

Brooks third paragraph is to make his point even stronger by pointing out that emotions are so fundamental that without them you are dangerous.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

Brooks is using the extreme case of a sociopath only to emphasize his point. But it leads to the legitimate question: In cases where the facts, the laws, and the precedents are ambiguous and the social “hot button issues” are of great consequence to individual lives, how will a final judgment be made ― by ideology or empathy? That is not only Obama’s concern. That choice it what separates the conservatives from the liberals.

Howard Pattee said...

Here is some more background from a New Yorker article on Roberts. As Chief Justice, Roberts was pleased that for the first time in the history of the Supreme Court all the members had been a Federal Appeals Court judge. This gives the court “a more legal perspective and less policy perspective.” This is the conservative position inflexibly supported by Scalia and Thomas.

Obama does not see the legalistic mind as the ultimate source of justice. Obama clearly stated his principles for choosing a justice, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is about how our laws affect the daily realities of people’s lives ― whether they can make a living, and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles an essential ingredient for arriving at just decisions and outcomes.”

Ira Glickstein said...

President Obama seems to agree with "... Chief Justice, Roberts [who] was pleased that for the first time in the history of the Supreme Court all the members had been a Federal Appeals Court judge. This gives the court 'a more legal perspective and less policy perspective.'" [quoting Howard]

Obama's nominee, Judge Sonia Sotomayor, is a federal Appeals Court judge on the U.S. Court of Appeals for the Second Circuit.

I have no problem with judges having empathy or not having federal Appeals Court experience.

Perhaps someone who has real experience and success in a business other than government. A business where payroll and bills must be paid, leaving a bit of profit for the investors who risked their money. A business where real customers must be satisfied else they will flock to a competitor. Where thousands of government rules and dozens of officious civil service regulators must be satisfied. In other words, someone with empathy for what makes "the wealth of nations" and what provides jobs and a good standard of living for citizens.

I have no problem with a judge using his or her judgement when the case law is not settled or where laws conflict. My only problem is when emotions lead a judge to nullify the plain meaning of the law as established by the various legislatures.

Ira Glickstein

Stu Denenberg said...

Joel's comments that we should be a nation of laws and that empathy should only be used in the sentencing phase are very persuasive. I also agree with Joel's claim that most of the cases before the Supreme Court are about conflicting extant laws. However, I am more inclined to agree with Howard Pattee, David Brooks and Gene Lyons (see full text at: http://moose-and-squirrel.com/gene/gene.html)where he quotes Sotomayor:

" Personal experiences affect the facts that judges choose to see. . . . I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives, and ensuring that . . . I re-evaluate them and change as circumstances and cases before me requires. "

The fact that Liberals and Conservative glom onto different "facts" seems to be at the heart of the matter. (Sometimes I think that the real deep-down basic difference is that Conservatives believe that all humans are basically evil and Liberals view humans as basically good.) However, I have seen evidence
of students attempting to figure out a scientific/mathematical principle using widely varying interpretations of experimental data so it's more of a human problem than an L/C one perhaps.

If this is, in fact the case, then while it may be a worthwhile goal to run society by proscribed laws, it ain't never gonna happen so long as were talking about a society of humans....

Lyons also said in his column:

"That great apostle of racial harmony Pat Buchanan asked readers to "imagine if Sam Alito had said at Bob Jones University, 'I would hope that a wise white male with the richness of his life experience would more often than not reach a better conclusion than a Hispanic woman who hasn't lived that life.' Alito would have been toast. . . . He would have been branded for life a white bigot."

Sure he would. Because his meaning would be entirely different.

"Could a white man get away with saying something comparable about a Latina?" wrote conservative columnist Kathleen Parker. "Of course not. After Latinas have run the world for 2,000 years, they won't be able to say it ever again, either."

So while it's comforting to believe that we can be a nation of laws, the fact is that we achieve (as are all nations) merely a rough approximation to this ideal.

If we're stuck with human emotions we could do a lot worse than empathy. However, that should not stop us from continuing to worship at the Church of Reason.

Ira Glickstein said...

Stu quotes soon-to-be Supreme Court Justice Sotomayor: "Personal experiences affect the facts that judges choose to see..." [Emphasis added]

Interesting idea! I agree we tend to "see" (or, in psychological terms "attend to") just those "facts" we are inclined to be looking for. For example:

"Pussy cat, pussy cat,
Where have you been?"
"I've been to London,
to visit the Queen!"
"Pussy cat, pussy cat,
What saw you there?"
"I saw a little mouse,
under a chair!"


Stu says: "Sometimes I think that the real deep-down basic difference is that Conservatives believe that all humans are basically evil and Liberals view humans as basically good."

Gosh are you wrong about that! C-minds believe humans should be treated as the adults they are who can and should mostly take care of themselves. We love individuals and think they should be judged individually on the merits. L-minds believe humans are children who need an elite class to run government and help them get along and protect them from their own childish choices and other humans. They love "humanity" in general, but hate or mistrust individual people. They think members of disadvantaged groups should be judged differently because it is society's fault they are that way.

While I am not a fan of Pat Buchanan, I think your objection to his example reveals just that "group-association" fault in L-minded thinking.

If it is racist and sexist for me (a while male) to say: "A white male, because of his life experiences, can make better decisions than an hispanic woman, because of her different life experiences." then it is just as racist and sexist if the genders and races are reversed, and we don't have to wait 2000 years for that to be the case.

On the other hand, had Sotomayor said, "An hispanic woman, because of her life experiences, would bring a wider range of views to a court dominated by white males who have had different life experiences, and thereby reach fairer decisions" then she would have been correct and neither racist nor sexist.

That revised statement would be analogous to my view that someone with a business background, who has demonstrated his or her ability to produce a product or service that people want to buy in a competitive marketplace and who has the experience of dealing with government rules and bureaucratic regulators, would bring a wider range of views to a court dominated by lawyers and judges who have had different life experiences, and thereby reach fairer decisions.

Ira Glickstein