Dana Summers for June 01, 2009

Empathetic is pathetic. Great, the law (constitution) is in the trash.

Time to get all touchy feely on the bench! (Oops, don’t want to say that too loud … words like that attract Bill Clinton)

Right_On: You don’t think Summers is actually telling the truth, do you?

Right_On yes all that empathy that has been given to the white collar criminals is pathetic.

well we know where Summers stands … fortunately Sotomayor has a 17-year history on the bench that proves she’s never thrown the law in the trash

The more the Republicans go after her, the more they get buried by Rush’s shadow.

Could we get a link to the similar comics that I’m SURE he did during the Alioto and Thomas confirmations, when those nominees were each praised for their empathy by their Republican handlers …. whoops, I just realized the difference …

Suggest reading the excellent op-ed discussing seen and unseen empathy.

Seen is the poor minority screwed by society.

Unseen is almost never considered by liberals. Example when a corporation is “unfairly” penalized. Who is harmed? Less profits so lower level employees get paid less. Less taxes paid so entire public must make up that loss. Some marginal products are dropped so the users lose out. etc etc. Unseen empathy is derided by the left but in reality harms the poor far worse than seen empathy.

As the conservative, Andrew Sullivan said last Friday (http://wamu.org/programs/dr/09/05/29.php#26748), justice should be blind; legislators, on the other hand, should be allowed to emote. HOWEVER, empathy is not a product, but process of getting to blind justice. One has to understand how one’s own life experiences influence one’s own decision making in order to divorce oneself from these biases when making objective decisions.

While I do not agree that justice should be blind (or can be blind), I found his thoughtful remarks to be compelling.

GNWachs: A good judge has both “seen” and “unseen” empathy. Sotomayor is one of them.

To danielsangeo:

I hope you are correct. She will certainly receive 70+ votes.

My problem with her is that while she may prove to be a fine Justice there were others on the short list who had the potential to be outstanding- Wood-Kagan and Sullivan plus the many men with proven records.

I believe that Sotomayor will be just as outstanding as Wood, Kagan or Sullivan or “the many men with proven records”.

Ultimately, Obama can pick only one and my opinion is that, if Obama had picked one of them, you’d be saying the same thing but with Sotomayor’s name in there (“Wood-Kagan and Sotomayor plus the many men with proven records” should he have picked Sullivan, for example).

Obama picked Sotomayor. And now many on the right are attacking that choice on racial, gender, or other lines that little-to-no bearing on the subject. No matter WHO Obama picked, that person would’ve been attacked by the Right.

And I think you know it.

Danielsangeo:

You made two different assertions. Correct, whomever Obama would have chosen would have elicited a negative response from Republicans which is exactly the same as whomever Bush would have nominated got a negative response from the Democrats. Obama himself voted no on both average choice Alito and outstanding choice Roberts.

I don’t want a liberal activist on the court but elections have consequences. I personally was rooting for Kagan and would NOT have said the things about her I am saying about Sotomayor. Kagan, like Roberts, would have been an outstanding nomination. Sotomayor like Alito is of course a fine judge but not the elite of the elite.

Wachs, I agree with you that there is a difference between the seen and unseen consequences of injustice. I also agree that corporations are unfairly blamed for malfeasance and economic woes. A good example of this kind of travesty was what happened to Arthur Anderson in the wake of the Enron debacle.

The fact is, a corporation is not a moral entity. Good people and bad people work for corporations. It is essential to root out who specifically is at fault and assign punishment to those responsible. This may mean fewer punitive damages, and I think that’s fine. If it meant that the good people of Arthur Anderson could have kept their jobs and held their heads up high, then it would have been a victory for justice.

PS - The argument made by this cartoon is ridiculously without merit.

“Obama himself voted no on both average choice Alito and outstanding choice Roberts.”

“Average” and “outstanding” are opinion statements. Obama voted against “outstanding choice Roberts” because of his history of impartiality in favor of the strong over the weak. Roberts is different than Sotomayor because Sotomayor favors NEITHER side.

Obama voted against Alito for the same reason.

Part of the problem with faulting judges who rule in favor of “the strong over the weak” is what is an outstanding justice supposed to do when the law specifically says in a case the strong is correct and the weak is wrong? Example say after an accident the injured has 180 days to file a claim. She files 3 years later or 9 months later. Unfair? Yes, but that is the law. Congress should have the sole prerogative of changing the law.

This occurred last week when Ginsburg felt the law as written was unfair and voted in a dissent to personally overturn the law as written by Congress and signed by the President. She certainly had empathy for the weak but was legally wrong. In this particular case even both Stevens and Souter felt she went too far.

Danielsangeo, what should a judge do when the law as written produces what the judge feels is an unfair result? Obama voted against Roberts/Alito because they made the mistake of obeying the law.

“Part of the problem with faulting judges who rule in favor of “the strong over the weak” is what is an outstanding justice supposed to do when the law specifically says in a case the strong is correct and the weak is wrong?”

Rule in favor of “the strong”, of course.

“This occurred last week when Ginsburg felt the law as written was unfair and voted in a dissent to personally overturn the law as written by Congress and signed by the President.”

Can I see some references on this?

“Danielsangeo, what should a judge do when the law as written produces what the judge feels is an unfair result? Obama voted against Roberts/Alito because they made the mistake of obeying the law.”

No.

danielsangeo

Look up the Supreme court decision of last week in the ATT pregnancy case. Very briefly, women who were pregnant between 1964-1978 only received sick days off which didn’t count towards retirement. Law changed in 1978 and these became disability days and did count toward retirement. This small class of women sued and wanted those sick days to count toward retirement which according to 1964 civil rights act did not. Ginsburg said ATT rich/strong, women poor/weak and ATT could “voluntarily” give them the days. Final decision was 7-2 for ATT and against the women. Stevens and Souter went with the law and the majority. Ginsburg had empathy but she had no authority to rewrite a law and do what she thought was fair. My guess is Obama would have agreed. But we live in a nation of laws not what a judge thinks is fair.

“Ginsburg had empathy but she had no authority to rewrite a law and do what she thought was fair.”

And Ginsburg didn’t. She wrote, in her opinion, that people are STILL being discriminated against today even after a 30+ year old law was overturned. She’s not implying that a law needs to be overturned or that she was somehow being “sympathetic” or something. If you read her dissent, you’d find Ginsburg was interpreting the law how she felt it was intended to be applied.

I’m not sure what you’re getting at, to be honest. Are you saying that every judge should always reach the same decision? If so, why do we have 9 judges? If not, what are you getting at?

Remember, she was joined in her dissent by Justice Breyer, who has a history being the judge to defer to Congress and voting to overturn existing law at the lowest rate since 1994. If overturning existing law is what is considered to be “activist”, then Breyer has been the LEAST activist judge in 15 years.

Even still, even if all 9 judges vote in favor of calling a law unconstitutional, they STILL do NOT have the authority to rewrite the law. That’s a job of the legislative and executive branches. The power of the SCOTUS is to STOP enforcement of an existing law or portion of the law. It cannot and has not ever “written” a law.

daniel

Thanks for answering. In 1978 when Congress passed the anti-discrimination law they had the option to make it retroactive. They chose not to. Ginsburg wanted to rewrite the 1978 law to make it retroactive.

ATT up to 1978 had the legal option to pay women sick leave and not disability leave. They elected to follow the law. Are you saying by obeying the civil rights act of 1964 ATT was “still discriminating”?

Clearly women who only received sick days and not pension days between 1964 and 1978 did not do as well financially as women who got pregnant after 1978. But that was the law and therefore cannot be legally discriminating. Ginsburg thought the difference was unfair and wanted to rewrite the law to give those women pension days. Yes, that is activist.

I think you put your finger on our differences. A wise man and a wise woman will come to the same decision as judges. Once again, we are a nation of laws not of men (or women). If they don’t obey the Constitution why should we bother to write it?

GNWachs said: ” Once again, we are a nation of laws not of men (or women). If they don’t obey the Constitution why should we bother to write it?”

wow … somebody should have reminded Bush and Cheney of that

Right_On: u were right on!

Yeah, except for the parts where he was actually typing words. All those parts were complete nonsense.