Network News

X My Profile
View More Activity

Happy Hour Roundup

* The RNC hits back: The RNC is now trying to defend its attack on Elena Kagan's praise of Thurgood Marshall, pointing out that Kagan also wrote in her 1993 piece that the role of the court is to interpret the Constitution to help the "despised and disadvantaged."

This, says the RNC, is proof that she hews to an "empathy standard." But I think the RNC is seeing the word "disadvantaged" through today's prism, and seems to think this merely means "poor" or "worthy of pity."

Rather, Kagan's point is that justices must interpret the Constitution to ensure that everyone has equal rights under the law, which is what the Constitution was repeatedly amended to do. Honestly, this hardly seems like a controversial point.

* Also: Ben Smith points out that Marshall is a far more outspoken liberal than Kagan has ever been in any case.

* Droll understatement of the day, from Adam Sorensen, on the RNC's claim that Kagan shouldn't have approvingly cited Marshall's claim that the original Constitution was "defective":

"Republicans questioning Democratic nominees on constitutional fidelity is par for the course, but this seems like an unusual extension of that critique."

* Even the folks over at National Review think the RNC's assault is daft.

* Striking new ad from America's Sheriff John McCain, featuring a border cop telling the Senator: "You're one of us."

The less charitable interpretation of this, of course, is that it's a racial appeal. Of course, McCain's camp can say the cop is just telling McCain that he's "one of them" in the sense that he's truly fighting the problem with them on the front lines.

* Chris Bowers says the opposition is failing to build a coherent negative narrative about Kagan.

* Senators Jon Kyl and Jeff Sessions say a filibuster of Kagan is highly unlikely, suggesting the White House succeeded in picking someone too uncontroversial to allow Republicans to justify such a step.

* Steve Benen says there's cause for (a little) less worry on the left about Kagan's views on executive power.

* Mitch McConnell joins the anti-Miranda cause, claiming interrogation must take precedence over prosecution, though it's worth restating that not Mirandizing can imperil prosecution.

* And Adam Serwer points out that Republicans didn't see any need to revise the Miranda procedure when they ran Congress.

What else is happening?

By Greg Sargent  |  May 10, 2010; 5:28 PM ET
Categories:  Happy Hour Roundup , Immigration , Senate Republicans , Supreme Court  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: Shadowy Ark. group run out of Va. P.O. box
Next: The Morning Plum

Comments

What the hell is wrong with an "empathy standard"? Only a Republican could view a heart of stone as a GOOD thing.

Posted by: rachel16 | May 10, 2010 5:35 PM | Report abuse

"* And Adam Serwer, points out that Republicans didn't see any need to revise the Miranda procedure when they ran Congress."

Of course not. They decided long ago, before Obama even took office, that they would paint him as weak on terrorism. Their newfound views on Miranda rights are a political ploy. Nothing more to see here.

Posted by: SDJeff | May 10, 2010 5:36 PM | Report abuse

Via Benen, here's what the National Review (!) said about Steele's statement today:

"Mr. Steele (and RNC staff), just as a little experiment, you might try thinking before you speak."

Oh, snap.

Posted by: BGinCHI | May 10, 2010 5:37 PM | Report abuse

Speaking of happy hour, I'm about to push off for a nice week-long vacation on the beach somewhere. Oh I cannot wait! Hold down the fort for me ladies and gents while I'm gone, hehehe. Greg, all, take care and be well! :)

Posted by: Ethan2010 | May 10, 2010 5:44 PM | Report abuse

"the role of the court is to interpret the Constitution to help the "despised and disadvantaged."

It is.

Posted by: wbgonne | May 10, 2010 5:45 PM | Report abuse

Hey guys, Check out this new political forum / website!

http://thepartisandialogues.com

Posted by: allenmicheals | May 10, 2010 5:46 PM | Report abuse

Enjoy, Ethan. And rachel, if you haven't commented here regularly before, welcome.

Posted by: Greg Sargent | May 10, 2010 5:56 PM | Report abuse

From that ABC News interview with McConnell that Greg links to above, first paragraph:

"I hope so. But one thing I've learned -- we've all learned a lot more about Miranda in the last few month -- is it’s not critical to Mirandize a suspect, whether he's a citizen or a non-citizen. I mean if you have all the evidence you need to convict, there's no need to read them the Miranda rights."

Well gosh, that settles it. This sounds so easy, doesn't it. But how do you know if you have the right guy/gal? How do you know you have "all the evidence"? None of these comments in any way reflect the kind of messy reality law enforcement faces every time they pursue and apprehend someone in any complex situation. Miranda is there as a systemic protection. It's Law and Order 101.

Jesus, don't these guys even watch TV?

Posted by: BGinCHI | May 10, 2010 6:19 PM | Report abuse

BG -- bingo. The problem is it's hard to get into a policy argument with people who don't seem to want to have a real policy argument.

Posted by: Greg Sargent | May 10, 2010 6:22 PM | Report abuse

"You're one of us" is a continuation of Sarah Palin's "real Americans", and What's her name....Nancy with the last name that's unspellable talking about "real Virginians" during the 2008 campaign.

All a piece of the same inherentely warped view of Americans.

He's pandering away as fast as his little panders can pander, isn't he?

Posted by: CTVoter | May 10, 2010 6:24 PM | Report abuse

"Jesus, don't these guys even watch TV?"

LOLOLOLOL!

And Greg, I've gone through the stages of grief over the loss of the reply option, and with the general state of this site, but is there any possibility, however remote, that we'll be able to use html tags?

Just lie to me, ok? It's been that kind of day.

Posted by: CTVoter | May 10, 2010 6:27 PM | Report abuse

I can't wait until several GOP Senators ask Kagan at her hearing whether she favors the mandate provision in the Affordable Care Act (does it violate the 10th amendment or not). They'll ask this as a pressing matter due to the court cases filed by 20 or so states.

And I hope she looks at them deadpan and says, "Sir, do you know anything about the law? About trying cases? How could I answer something so speculative before any OTHER rulings have even been made?" Then she would shake her head and mutter, really softly: "f'ucking idiot."

Seriously, don't these guys watch TV? Hint: lots of court shows. And also there are books and staffers and actual lawyers you could ask.

Posted by: BGinCHI | May 10, 2010 6:32 PM | Report abuse

I guess the dome is old news now. I read about this junk shot over the weekend. It sounds like they're getting desperate.

"Using a method known as “junk shot,” BP plans to clog the pipe with large quantities of plastic and rubber trash items, such as tires and golf balls. Has this ever been done before? Yes, in fact, unlike the dome method, oil companies have plugged leaks using the “junk shot” method before."

"But has it ever been done at a depth of 5,000 ft? No, and scientists are warning that employing such a method in a situation ‘beyond experience’ could actually make things worse, causing crews to lose control of the well and spill even more of its contents into the Gulf."

Posted by: lmsinca | May 10, 2010 6:34 PM | Report abuse

lms, I don't want to go all South Park on you, but do they have to call it the "junk shot"?

It's degrading to the oil well.

Posted by: BGinCHI | May 10, 2010 6:40 PM | Report abuse

"No, and scientists are warning that employing such a method in a situation ‘beyond experience’ could actually make things worse, causing crews to lose control of the well and spill even more of its contents into the Gulf."

Well, given how fabulously things have gone up to this point with this well, I think we know what to expect, don't we?

Posted by: CTVoter | May 10, 2010 6:49 PM | Report abuse

"Well gosh, that settles it. This sounds so easy, doesn't it. But how do you know if you have the right guy/gal? How do you know you have "all the evidence"?"

You should probably address your mockery to Obama and Holder, too, since they apparently share those views.

Posted by: quarterback1 | May 10, 2010 6:54 PM | Report abuse

How many golf balls does it take to plug an oil leak? Sounds like a winner.

Posted by: lmsinca | May 10, 2010 7:03 PM | Report abuse

"Even the folks over at National Review think the RNC's assault is daft".

Those pinkos at the NR think Reagan was a Union man.

Republicans have lost their collective minds.

Posted by: thebobbob | May 10, 2010 7:29 PM | Report abuse

Personal politics aside, it seems inherently dangerous for the court, made up of just a few elite people, to be able to effectively alter the Constitution without going through required change process. They may have the best and purest of intentions but Americans have a right to be involved and not dependent on the court's balance of yin and yang.

Posted by: wonderingstevie | May 10, 2010 7:34 PM | Report abuse

Sarah Palin's speaking demands revealed.

http://www.theonion.com/articles/sarah-palins-speaking-demands,17287/

Posted by: BGinCHI | May 10, 2010 7:37 PM | Report abuse

An entire round-up with no skewers! You're slacking Greg.

So, either Steele was just reading a talking point without knowing wtf he was saying which wouldn't surprise me or he is willingly race baiting which also wouldn't surprise me. I'm not sure how the guy can sleep at night knowing GOP operatives purposely race bait to instigate racial animosity. I guess some people are that driven by power they have no morals.

Well, I guess this oil might be possibly destroying all the white sand beaches of Alabama, otherwise known as the Hillbilly Riviera. We're about ready to see just how influential and good at changing peoples minds the oil industry is. It's gonna take a lot of those commercials that explain how oil companies help with medicine and stuff to convince people its safe when they peer out their window at a sea a black gunk with dead animals everywhere.

Posted by: mikefromArlington | May 10, 2010 8:03 PM | Report abuse

Evening Slaves:

A little message for the Alleged Hawaiian from citizens in Arizona:

http://www.youtube.com/watch?v=NLgZ1LWLlko&feature=player_embedded

Good for your moonbat mental health

Posted by: Bilgeman | May 10, 2010 8:21 PM | Report abuse

Drat..stoopid intertoobs!

http://www.youtube.com/watch?v=NLgZ1LWLlko

Posted by: Bilgeman | May 10, 2010 8:24 PM | Report abuse

There was a Republican earlier today, I think it was Cornyn, who said he didn't think Kagan knew what "regular people" went through. And to that I had to ask, why would he care? I mean aren't Republicans the one saying Justices don't need empathy? So in their world the perfect justice not only wouldn't know about what "regular people" go through, they also wouldn't care.

Which is why I could never be a Republican because if you carry their policy arguments out far enough sooner or later every single one of them is contradictory.

Posted by: sgwhiteinfla | May 10, 2010 8:28 PM | Report abuse

"Drat..stoopid ignorant racist troll, me!"

Fixed it for ya. A little more focus and a little less meth and Budweiser would do wonders for ya, you betcha.

Posted by: mikefromArlington | May 10, 2010 9:05 PM | Report abuse

Good catch, sg. These folks will say anything, truth and consistency being quite irrelevant.

Posted by: bernielatham | May 10, 2010 9:10 PM | Report abuse

Media Matters digs up a Hannity quote from an earlier period on why folks should just go along with a President's SC pick.

"HANNITY: Well, let's go back to the Ruth Bader Ginsburg example, if we can, for a minute. Because I think elections mean something, and I know you do, Senator. And if a president wins an election, and he has a particular judicial philosophy -- in the case Bill Clinton picked two very left of center people for this position. Ruth Bader Ginsburg was a former general counsel with the ACLU. She was approved 96-3.

George W. Bush is conservative. So if he has somebody with more of an originalist mainstream philosophy that he picks for the court, shouldn't the Democrats go along with that nominee, based on the fact that the Republican won this election?"
http://mediamatters.org/blog/201005100028

Posted by: bernielatham | May 10, 2010 9:18 PM | Report abuse

sg,

If American jurisprudence codified the concept of empathy, or sanctioned the weighting (de facto or de jure) of all legal decisions to privilege the "regular people," what...sooner or later if that policy was carried out far enough...would be the effect upon the nation?

btw: I'm not a "little guy" but I'm most definitely "regular people."

Posted by: tao9 | May 10, 2010 9:29 PM | Report abuse

So talk show host Sean Hannity asked why Bush's nominees should get the same deference as Clinton's.

Unfortunately, Senator Barack Obama didn't see it that way.

Posted by: quarterback1 | May 10, 2010 9:31 PM | Report abuse

@Rachel16 - I share your dismay that an entire political movement would rally behind an "empathy is bad" notion. Particularly one which attempts to define itself as manifesting "compassion". More particularly, one which claims to have the proper bead on Christian values.

The proper ownership of "empathy is bad" sits, really, with psychotics who are unable to experience it and with a species of "free enterprise" ideology which finds it inconvenient (we can increase tobacco sales by targeting the young...or...let's figure a way to make oodles of money through others losing their money). Likely, those are the same category.

Posted by: bernielatham | May 10, 2010 9:38 PM | Report abuse

tao is exactly right on this.

Greg, your comments about the Court and empathy for the disadvantaged can only be naive or disingenuous. I assume it is the former.

This is a hard left concept of the Court and justice. When the left -- Obama, Kagan, Marshall -- talk about the Court as champion of the disadvantaged, they mean judicial lawlessness. They mean not the impartial protection of rights recognized through legitimate processes of self-government but judicially invention of "rights" for those the judge feels have not had deserved political success in achieving their interests.

Welfare rights, the "right" to health care, SSM, these are what they mean, and, it is hard left and controversial to say the least. Bland characterization of it as "equal rights" is hardly accurate.

Posted by: quarterback1 | May 10, 2010 9:43 PM | Report abuse

@thebobbob
"Republicans have lost their collective minds."

My take is probably close to yours but I'd word it somewhat differently. They have managed to gain and maintain a significant amount of power over the last three decades or so through moving to the extreme. In many ways, it has worked for them. A consequence, noted by many, has been the coincident disempowerment of moderates within their ranks and a they really are in danger of becoming a one trick pony with little capacity to change direction. That's an enduring danger with extremism and so, in this sense, it seems irrational in that it limits and endangers them as a party/movement.

What I think they've really lost more than "mind" is morality or ethics and integrity. They have, as a movement/party, become a deeply pernicious influence on the nation.

Posted by: bernielatham | May 10, 2010 9:54 PM | Report abuse

Bernie,

A question asked in good faith: Do you consider yourself a moderate?

Posted by: tao9 | May 10, 2010 10:06 PM | Report abuse

This is apparently what passes for moderate and principled opposition party response to SCOTUS nominations.

http://www.democrats.org/a/2005/09/gov_dean_speaks.php

Anyone want to defend and explain your new-found outrage?

Posted by: quarterback1 | May 10, 2010 10:10 PM | Report abuse

@tao - Interesting argument. Would you hold that your Constitution and your Bill of Rights are devoid of empathy? Would you hold that English civil law is devoid of empathy? Would you hold that civil rights laws as previously established by the SC are devoid of empathy? Is it your argument that a complete lack of that human response we term empathy will give us judicial findings superior to those which entertain empathy for others? Could we (it might be a consequence of your argument) simply write a software program using the text of the constitution (or some other text you might have in mind) and crank that up to resolve legal issues?

Posted by: bernielatham | May 10, 2010 10:15 PM | Report abuse

Here is part of Ted Kennedy's infamous litany of unhinged slurs against Robert Bork:

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice."

Then we had the incredible Democrat smearing of Clarence Thomas.

Then we had Stonewalling by Clinton's nominees.

Then we had the Obama Dems trying to filibuster Bush's picks and demanding party-line opposition, based soley on judicial philosophy.

Now we have the Obama Dems decrying any opposition.

I don't think we need to hear from Democrats about who adopted extremism and lack of integrity.

Posted by: quarterback1 | May 10, 2010 10:24 PM | Report abuse

Better that you should explain, Bernie, how deciding Supreme Court cases based on empathy and disadvantage would be better, or more appropriate, than impartiality.

What kinds of cases should be decided that way? And how does the judge decide which side to empathize with?

Posted by: quarterback1 | May 10, 2010 10:31 PM | Report abuse

@tao - Do I consider myself a moderate?

This is a relative term, of course, and requires some framework or context to give it any sense. That might be a relationship to others or to a majority or to a historical referent. So, for example, when I describe modern conservatism as being immoderate (which I do constantly) it is through relating modern American conservatism to that which was in place a few decades past or that which is in place in Canada or in Europe or Australia etc.

As to myself, a proper answer would depend on a more specific narrowing of subject/context. Most of my political view would put me slightly left of center in the context of Canadians' voting patterns. My notions on the proper government role in healthcare, for example, are mainstream Canadian views (or English or European or Israeli, etc).

On wealth redistribution, I'd be close to the center of Canadian notions as they've stood in my lifetime but perhaps somewhat further left (closer to many European countries). But again, I could also compare that position to the US during, say, Eisenhower's time when tax rates on the wealthy were far far higher than now.

I'm probably further left than most Canadians as regards regulation of corporate enterprises or maintaining government control of particular enterprises, but again, not much. There would be, for example, little difference between myself and 90% of my Canadian friends, most of whom are professionals or self-employed. I don't think there would be a single one of them who would imagine that privatization of prisons would result in a decreased demand to fill them up (three strikes rules, continued criminalization for pot use, etc etc).

But if you wish to compare me (or most of the rest of the industrialized western world) to present conservative norms, then I'd be a radical leftist. But I suppose one could consider such a framing as rather warped.

Does that help?

Posted by: bernielatham | May 10, 2010 10:38 PM | Report abuse

"striking new ad from america's sheriff john mccain, featuring a border cop telling the senator: 'you're one of us.' "

one of us...one of us...one of us...

Posted by: skippybkroo | May 10, 2010 10:39 PM | Report abuse

Jeeze qb, do you have like a file or something where you store all the real or imagined insults ever thrown out there by a Democrat anywhere in the History of the Universe? Spew away. We get it, you hate Democrats.

Do you consider the Constitution a dead document to be stoically adhered to in it's original form, or do you believe in the living Constitution where the Amendments have breathed new life into our Democracy as contemporary issues challenge all of us past, present and future?

Posted by: lmsinca | May 10, 2010 10:42 PM | Report abuse

"Better that you should explain, Bernie, how deciding Supreme Court cases based on empathy and disadvantage would be better, or more appropriate, than impartiality."

False dilemma. Impartiality and empathy are not exclusive.

Posted by: bernielatham | May 10, 2010 10:44 PM | Report abuse

Bernie,

"Would you hold that your Constitution and your Bill of Rights are devoid of empathy?"

No. That is my point. They are, as written, the most empathetic documents in history (IMHO).

"Empathy" as is being touted as a qualification for an Associate Justice is a term of art. This new term is used to steal a Constitutional base via requiring or prohibiting things the authors did not.
The BofR is precisely the seat of anti-federal advocacy (empathy, if you will).

If the left is so confident of the reception by the people of their superior empathy and ingenuity, let them exhibit this via the formal amendment process (which the left NEVER proposes to do).

Golly, sometimes the straw-men stamping around here are bigger than Mr. Stay-Puft.

Posted by: tao9 | May 10, 2010 10:44 PM | Report abuse

Bernie,
Stay-Puft a general observation, not aimed @ thou.

Posted by: tao9 | May 10, 2010 10:47 PM | Report abuse

B,

For the record, I don't think anyone on this thread, or our host, are radical leftists.

I also miss Tena, NewsRef, and the ability to post emoticon winking smiley faces.

Posted by: tao9 | May 10, 2010 10:56 PM | Report abuse

Warning: culture swerve.

tao, and others interested in fiction. I recommended a novel to ruk last week and I suggest anyone interested in the Vietnam war experience pick up Karl Marlantes' novel Matterhorn. It's an extraordinary book.

More later on empathy.

Posted by: BGinCHI | May 10, 2010 11:06 PM | Report abuse

Oops, forgot ERA. Selective memory & straw-men are not exclusive...
{{{winking smiley face emoticon}}}

Posted by: tao9 | May 10, 2010 11:09 PM | Report abuse

BG,
At the half-mile pole w/ the McGahern. Will seek out Matterhorn next.
Keep'em comin' doc.
Thnx.

Posted by: tao9 | May 10, 2010 11:13 PM | Report abuse

"Jeeze qb, do you have like a file or something where you store all the real or imagined insults ever thrown out there by a Democrat anywhere in the History of the Universe? Spew away. We get it, you hate Democrats."

Of course not. I just remember a few things clearly. This is yet another thread frothing with claims that, in the context of some awkward but tame comments by Steele, Republicans have "lost their minds," sold their souls to "extremism," and lack all integrity or consistency.

A few of Democrats' past deeds that are relevant regarding judicial nominees come easily to mind. Your party is quite proud of that history, so I don't see how they are insults in the first place.

"Do you consider the Constitution a dead document to be stoically adhered to in it's original form, or do you believe in the living Constitution where the Amendments have breathed new life into our Democracy as contemporary issues challenge all of us past, present and future?"

As Bernie would say, false dilemma. These are not the choices. And, btw, neither is even close to what the "legal left" means when it refers to a "living Constituion."

Posted by: quarterback1 | May 11, 2010 6:29 AM | Report abuse

I am splitting this post since it went to moderation, which seems to eat posts:

"False dilemma. Impartiality and empathy are not exclusive."

Either empathy leads to a different decision or it doesn't. If the latter, your argument lacks substance.

I think Tao has this exactly right again. The rhetoric of empathy for the disadvantaged is a term of art in legal academia and SCOTUS jurisprudence, where this is a very well-rehearsed debate. It in fact is inconsistent with impartiality and, perhaps as often, with judicial restraint itself. (And by judicial restraint I mean fidelity to written law, the Constitution being primary.)

Empathy in more unvarnished terms means departing from the law as written because the Justice feels it should be otherwise. Oh, it is always covered up in linguistic rationalizations, but that is the gist.

It is easier to defend this concept of juding by empathy in the abstract. How would it affect concrete cases?

What would it mean in a case like Citizens United? How about review of a restriction on late-term abortion? Review of a gun ban? The Leadbetter case? The desert cross case?

What about the bulk of cases decided by SCOTUS, which deal with more mundane matters such as intracacies of administrative and procedural law?

Or what about a flagship "empathy" case like Goldberg v. Kelly, where the issue was a claim of government liablity for failing to protect a minor. The law said no, but liberals said empathy should say yes.

Or take cases in which Kagan has some history -- the legal challenges to the Solomon Amendment and DOMA.

For whom are the Justices to feel empathy, and how does it change the result in any of these cases? If it changes the result, are we not saying that the law itself, sans judicial "empathy," would have led to a different one?

Posted by: quarterback1 | May 11, 2010 7:40 AM | Report abuse

Part 2, to Bernie:

You present your own false dilemmas, as well as confuse some relevant features of law:

"Would you hold that your Constitution and your Bill of Rights are devoid of empathy? Would you hold that English civil law is devoid of empathy?"

Tao again has it right. The "empathy" advocates mean judicial empathy, not empathy embodied in the written law, the whole point of the former being to authorize departure from what is written.

I assume by English civil law you mean common law, or the judge-made law of torts and contracts, for example. That is a somewhat more interesting question, but common law is generally accepted to be a development of principles, not an exercise of empathy.

The SC does not, however, as a general matter decide common law issues, at least since 1938, when it held that there is no such thing as federal common law. It generally decides statutory and Constitutional questions, and this is where "empathy" generally is called for by the left. (The SC sometimes deals with state common law questions in diversity cases, but the federal courts do not establish state common law.)

"Would you hold that civil rights laws as previously established by the SC are devoid of empathy?"

In American legal usage, this is a bit of a malapropism. We would generally say the civil rights laws are those statutes written by Congress. If you mean SC precedents under those statutes, no doubt many were decided by liberal judges based on some concept that they were being empathetic, but the doing of the act is not its justification.

Posted by: quarterback1 | May 11, 2010 7:41 AM | Report abuse

"what the "legal left" means when it refers to a "living Constituion.""

And you know this how? From Rush Limbaugh?

Posted by: wbgonne | May 11, 2010 7:46 AM | Report abuse

For those who want to wade further into the trenches of judicial empathy, here is the wiki page on the Deshaney case mentioned above (oops I see I called it Goldberg, which is a welfare benefits case from much earlier):

http://en.wikipedia.org/wiki/DeShaney_v._Winnebago_County

The Blackmun dissent ("Poor Joshua!") is often seen as a key manifesto of judicial "empathy." The legal issue was not really very close, empathy demanded a different result according to him (and Marshall and Brennan).

Posted by: quarterback1 | May 11, 2010 8:06 AM | Report abuse

This tripe about the dangers of "judicial empathy" is yet another example of the Right's obsession with canards and labels. What Obama means is that the judge should have a conception of the real world consequences of his or her decision. Every good judge does this at every level of judging. That is why SCOTUS arguments ate filled with hypotheticals asking, "Well if we rule that way what does that mean in other situations?" That is what good judges do. Bad judges living in Ivory Towers just pretend that consequences are irrelevant. Call it empathy, call it pragmatism, call it realism. Whatever. That is how good judge make decisions. And the related charge of "judicial activism" is even more specious. THe Conservative justices are as much result oriented as the the Warren Court in its heyday. The difference is that the Right Wing justices in the Roberts Court are activist in advancing the interests of the Rich and Powerful, while the Warren Court focused on the downtrodden. And the Warren Court was correct in its focus: It is the downtrodden -- the poor, the helpless, the despised, the criminally accused, the alleged terrorist supporter -- that are in need of protection, not the Rich and Powerful. The Rich and Powerful have the political branches to secure their interests.

Posted by: wbgonne | May 11, 2010 8:13 AM | Report abuse

There you have it, the proper role of the Court per wbgonne: Just another political branch to spread the wealth around.

You know all that from where, Keith Ubermoron?

Posted by: quarterback1 | May 11, 2010 8:17 AM | Report abuse

"Just another political branch to spread the wealth around."

No. Spread the Rights around, not the Wealth, But to Right Wingers like you, Wealth is all that matters. Greed is your creed. But don't worry: the SuperRich will stay SuperRich even when the downtrodden and despised are protected.

Posted by: wbgonne | May 11, 2010 8:26 AM | Report abuse

All, morning roundup posted:

http://voices.washingtonpost.com/plum-line/2010/05/the_morning_plum_5.html

Posted by: Greg Sargent | May 11, 2010 8:28 AM | Report abuse

"Just another political branch to spread the wealth around."

And that statement, unsurprisingly, misses the point altogether. The Court is definitely NOT "just another political branch"; the Court is the check on the political branches. It is the only Un-political branch.

Posted by: wbgonne | May 11, 2010 8:29 AM | Report abuse

qb, we're not all just a bunch of crazy radicals with no respect for the Constitution, contrary to your belief. Laws, amendments, formal and informal, are always open to interpretation and repeal or modification. It's an age old left, right struggle but I don't really see anything substantial that should keep Kagan off the court. Most of it's just posturing from both side to make political hay.

"How could a 208 year-old document, written for a small agricultural nation of thirteen states endure through the tests of time to apply to today's immense, modern highly industrialized society? This is because of the flexibility with which the Constitution was imbued. The framers knew that they could not possibly plan for every circumstance or situation. As such, they provided various methods by which the Constitution and its laws could be modified as society grew and changed. That is why the United States Constitution is known as a "living constitution," one which can adapt and be flexible as necessary. There are three ways in which the Constitution is a "living" document: the formal amendment process; the informal amendment process; and custom, usage, and tradition."

http://library.thinkquest.org/11572/constitution/important/living.html

Posted by: lmsinca | May 11, 2010 9:00 AM | Report abuse

You are incoherent.

The Kagan/Blackmun/Obama notion of judicial empathy most certainly is not just an awareness of consequences and hypothetical applications. It is favoring the "interests" of whomever the justice feels is "disadvantaged" or otherwise deserving -- that is what Kagan herself describes.

You need to decide whether you are talking about interests or rights, and what rights, located and defined where in the Constitution. Right now you are doing nothing but engaging in liberal doubletalk.

Either the Court is to advance the "interests" of this or that group -- which you've said more than once -- or is impartially to apply the Constitution and impartially to protect the rights it defines. These are mutually exclusive roles.

It's funny how the "rights" the empathetic left would like invented amount to other people's money. That's what Obama once lamented the Court has not done enough of and isn't very good at.

But whatever the "rights" are for which "empathy" is invoked -- welfare, abortion, SSM -- they are always extraconstitutional and hence lawless.

Posted by: quarterback1 | May 11, 2010 9:01 AM | Report abuse

"Either the Court is to advance the "interests" of this or that group -- which you've said more than once -- or is impartially to apply the Constitution and impartially to protect the rights it defines. These are mutually exclusive roles."

So you say. But your Constitutional theory is incorrect. One of the primary functions of the Judiciary is to protect persons and groups against the Rich and Powerful acting through the political branches. To a myopic Right Winger, that probably looks like favoring such people and groups but it isn't; it is merely ensuring that all people, including the politically powerless, are afforded the same rights under the Constitution.

Posted by: wbgonne | May 11, 2010 9:10 AM | Report abuse

That last was to wb, not lms.

lms,

Those authors are confused and lost to say the least.

There is no such thing as informal amendment, and I have never heard of anyone who thinks of legislation as informally amending the Constitution. It is little more than an absurdity. Nor does custom amend the Constitution. It is custom. Period.

The idea of a "living" Constitution generally centers on judicial interpretation. Those who advocate it generally reject the idea that judges are bound by the text. Efforts are made to make it more complex, but that is the bottom line.

Posted by: quarterback1 | May 11, 2010 9:10 AM | Report abuse

wb, so you say in the abstract.

What are some compelling examples of how the Court should protect the "interests" of the non-rich and powerful against the rich and powerful, by making sure that "all people . . . are afforded the same rights under the Constitution"?

Please show us all how these are the same thing, and explain how "empathy" is needed to ensure that "all people" have the same constitutional rights.

Posted by: quarterback1 | May 11, 2010 9:15 AM | Report abuse

Thanks for the exposition on the "living Constitution" but you don't know what you are talking about. The Constitution was written almost 250 years and it was written by mortals who would never have the audacity to claim that they were writing Biblical text. The Constitution was designed to be flexibly enough to adapt to changing times and circumstances; indeed, that is part of its genius and the primary reason it has endure so well as the nation and the world have changed dramatically over 2 centuries. Those who believe in a Living Constitution recognize that the Constitution is to be interpreted not only by reference to Colonial and Confederation conditions, but by considering how the world has changed as well. In short: It is up to each generation to interpret the Constitution in light of the world as it is, not as it was in the 1700s.

Posted by: wbgonne | May 11, 2010 9:19 AM | Report abuse

Thanks for the exposition on the "living Constitution" but you don't know what you are talking about. The Constitution was written almost 250 years and it was written by mortals who would never have the audacity to claim that they were writing Biblical text. The Constitution was designed to be flexibly enough to adapt to changing times and circumstances; indeed, that is part of its genius and the primary reason it has endured so well as the nation and the world have changed dramatically over 2 centuries. Those -- like me -- who believe in a Living Constitution recognize that the Constitution is to be interpreted not only by reference to Colonial and Confederation conditions, but by considering how the world has changed as well. In short: It is up to each generation to interpret the Constitution in light of the world as it is, not as it was in the 1700s. It's much harder than acting as if the Constitution is a scripture; but it's the only way to make it work.

Posted by: wbgonne | May 11, 2010 9:20 AM | Report abuse

Oops. Sorry for the double-post. I should probably try to use that snazzy preview feature.

Posted by: wbgonne | May 11, 2010 9:22 AM | Report abuse

tao said: "They [constitution and bill of rights] are, as written, the most empathetic documents in history (IMHO).

Well, I'm not so sure about that but clearly they do beat the Old Testament all to hell.

""Empathy" as is being touted as a qualification for an Associate Justice is a term of art. This new term is used to steal a Constitutional base via requiring or prohibiting things the authors did not.
The BofR is precisely the seat of anti-federal advocacy (empathy, if you will)."

Once again, I can't decipher what argument or point you are trying to forward here.

"If the left is so confident of the reception by the people of their superior empathy and ingenuity, let them exhibit this via the formal amendment process (which the left NEVER proposes to do)."

And here as well. Are you suggesting that majority sentiment/vote equals empathy? A lot of black people, through the majority of US history, would find that equation not terribly sensible. Or do you mean something I'm not getting?

Re "radical leftists"... there really aren't many left anywhere. Even in the mid-seventies, one could still easily find fellows hanging about downtown or at various transit hubs handing out "The Daily Worker" or some other Marxist/Leninist tracts. Do a survey of any university population presently and the percentage of them who have ever even been tempted to pick up a text by Marx (if they know who he is) will be seriously small. Descriptions, common to the talk radi/FOX/NRO crowd of someone like Obama or Clinton as "hard left" have no connection with any educated or reasonable frame of reference - it is simply a propaganda strategy manifested. As I've mentioned before (I think), a couple of economists some years back did a comparison of policies forwarded under Eisenhower and Clinton and it was the latter's policies that fell further to the right (as you or I would define that).

Posted by: bernielatham | May 11, 2010 9:34 AM | Report abuse

I said:

"The idea of a "living" Constitution generally centers on judicial interpretation. Those who advocate it generally reject the idea that judges are bound by the text. Efforts are made to make it more complex, but that is the bottom line."

You said:

"Those -- like me -- who believe in a Living Constitution recognize that the Constitution is to be interpreted not only by reference to Colonial and Confederation conditions, but by considering how the world has changed as well. In short: It is up to each generation to interpret the Constitution in light of the world as it is, not as it was in the 1700s. It's much harder than acting as if the Constitution is a scripture; but it's the only way to make it work."

I'd say I had a pretty good idea what I was talking about, as proved by your own confirmation of exactly what I said.

You can make it sound prettier and more complex in the abstract, but you can't give any concrete examples, because that always exposes the lawlessness of your theory. At the end of the day you don't believe the Court has to abide by the text as written. Stephen Breyer, no doubt one of your approved Justices, wrote a little book rejecting the binding authority of the text (and the "textualism" of Scalia).

Posted by: quarterback1 | May 11, 2010 9:36 AM | Report abuse

"Descriptions, common to the talk radi/FOX/NRO crowd of someone like Obama or Clinton as "hard left" have no connection with any educated or reasonable frame of reference - it is simply a propaganda strategy manifested."

I think Obama can fairly be called hard left in terms of his heart of hearts; Clinton not so much although definitely to the left.

You might have more credibility in purporting to denounce such appellations if you did not regularly do likewise.

Posted by: quarterback1 | May 11, 2010 9:40 AM | Report abuse

wb said: "This tripe about the dangers of "judicial empathy" is yet another example of the Right's obsession with canards and labels"

Yes. Had anyone heard of this particular complaint before somebody tasked with finding suspicious statements by Sotomayor tossed this one out and tried to drum up a narrative to make it seem bad?

Posted by: bernielatham | May 11, 2010 9:41 AM | Report abuse

Textualism is what the Taliban believe in.

Posted by: wbgonne | May 11, 2010 9:42 AM | Report abuse

QB:

Face facts: To you everyone to the Left of Rush Limbaugh is a Radical Leftist. That's what makes you largely irrelevant. You are a radical fringe thinker and the perfect counterpart to the Leftist Radicals you see in your cereal every morning.

Posted by: wbgonne | May 11, 2010 9:46 AM | Report abuse

Just a few examples qb. Haven't we been having the same fight for over two centuries and aren't both right and left constantly trying to interpret the Constitution favorably to their belief in it's intent? That's all I'm saying, I think some people look at it as an absolute and I don't believe it is. I believe our Justices should consider the unintended consequences of their decisions and weigh the effects on both the rights of the individual vs. the community at large.

As you know I am not a lawyer, only been to court a few times, but some things strike me as common sense issues that don't necessarily need to be couched in legalese.

"Informal amendments include all of the following: basic legislation passed by Congress, executive agreements, and court decisions. Congress has the power to pass whatever legislation it can within its restraints. This includes any and all acts such as the Judiciary Act of 1789 and the Civil Rights Act of 1964. The President can use executive agreements in dealing with foreign affairs and powers. An executive agreement is a contract made by the President with the head of a foreign state. They are not subject to Congress' approval. Throughout the nation's history, court decisions have had a great influence over the emergence of new laws, practices, or interpretations. They have changed the course of key issues and have existed as an important check on the legislative branch by the judicial branch. Informal amendments have played decisive roles in the evolution of the government, even directing which path shall be followed into the awaiting future."

"The terms custom, usage, and tradition refer to the ways in which the various parts of the government react to new circumstances. The past customs of previous administrations have limited today's administrations. For example, delivering the State of the Union Address every year at approximately the same time as a televised event is derived from custom. Article II, Section 3 merely states that: "he shall from time to time give to the Congress Information of the State of the Union." Nowhere is it mentioned that he must do this at a certain time and in front of lots of cameras. This is a custom. Usage of certain pieces of legislation has also changed the Constitution. For example, the War Powers Resolution of 1973 has never truly been enforced. Parts of it have been used before but no President has ever been strictly held to the resolutions provisions."

Posted by: lmsinca | May 11, 2010 9:47 AM | Report abuse

This interesting discussion suggests a deeper and more fundamental point: the Right Wing doesn't want to think independently; the Right Wing craves a set of rules like the Ten Commandments to follow mindelessly. Sorry, life in a constitutional democracy ain't that simple.

Posted by: wbgonne | May 11, 2010 9:53 AM | Report abuse

"Had anyone heard of this particular complaint before somebody tasked with finding suspicious statements by Sotomayor tossed this one out and tried to drum up a narrative to make it seem bad?"

At a minimum, yes, anyone who went to law school at Harvard or places like it in the past 30 years is quite familiar with this debate.

What do you think the chief complaints were against Robert Bork?

Posted by: quarterback1 | May 11, 2010 10:08 AM | Report abuse

wb, it's too bad you can't engage in a debate above a juvenile level of caricatures and straw men. You don't even try.

lms,

There are large areas and many cases in which there is room for argument about what the Constitution means.

But it does no good to imagine there is not a real debate between two (or more) camps with irreconcilable positions on the proper role of the SC. They are not equivalent or the same. One believes the Constitution itself has primacy -- which simplistic wb calls "mindless" -- and the other sees the Constitution more as a malleable tool to be used by judges as they think best, generally to serve the political, social, and economic interests of the "disadvantaged."

Posted by: quarterback1 | May 11, 2010 10:24 AM | Report abuse

I almost forgot one of the best test cases for judicial empathy on the SC.

What should empathy have contributed to Sotomayor's overturned decision in the firefighter discrimination case?

Was it lack of empathy that got her reversed by the SC? Was SC more empathetic?

In whose shoes should the Justices have placed themselves, leading to what conclusion?

Good luck.

Posted by: quarterback1 | May 11, 2010 11:44 AM | Report abuse

Umm.....didn't the Supreme Court apply an "empathy standard" to large corporations allowing them to "invest" in the candidate of their choice?????

Posted by: shoegal_69 | May 11, 2010 4:47 PM | Report abuse

Umm.....didn't the Supreme Court apply an "empathy standard" to large corporations allowing them to "invest" unlimited funds to the candidate of their choice?????

Posted by: shoegal_69 | May 11, 2010 4:48 PM | Report abuse

The sad thing is, we have no voice in who is selected for Justices. We do however have the freedom to vote, a freedom that should be taken very seriously. Living in Arizona, I have researched JD (I was too young to vote last time he was elected into Congress) I found that JD not only failed miserably in office, but he continues to struggle with ethics. I do not agree with everything McCain has done, however, when comparing the two, McCain wins hands down.

Posted by: antidonkey | May 12, 2010 12:34 AM | Report abuse

The comments to this entry are closed.

 
 
RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company