Hermenuetics

Comments

I think most of these lines of attack won't go anywhere if people look at them honestly. According to some independent reviews of her cases she is not out of line of the court. In case where she was on a three judge panel and at least 1 other judge was appointed by a Republican (as she was) she voted the same as the other republican appointed judge 95 percent of the time.

According to another review of cases by Tom Goldstein, she has reviewed 96 race related cases. Of those she agreed with the panel and rejected the claim of descrimination 78 times. She agreed with the panel and accepted descrimination occurring 10 times (9 times unanimously). In only one case did she dissent in favor of discrimintion and that was a case of a white NY cop being fired for distributing racist literature off duty. She found that the cop had free speech rights.

It does seem odd that in her 11 years on the bench there is not a single case where she found discrimiation without the support of other members of the bench. She is not out of the mainstream. We need to be looking at an actual record if we want to talk about empathy. In abstract it doesn't really get us far.

Posted By: Anonymous | June 1, 2009 1:39 PM

What might our political system look like if we spent less time mud-slinging and assuming the worst, and more time in prayer for those that God allows onto the national stage?

Based on many conversations I've had, I'd say that few of us evangelicals spend deep, passionate time on our knees interceeding for the affairs of our nation ... we're too busy wringing our hands to fold them in prayer.

Posted By: Linda Stoll | June 1, 2009 2:17 PM

Lady Justice has a blindfold on for a reason: our justice system is supposed to be blind and objective, and based on the laws written to achieve it. Who it is applied to and who is doing the applying should (theoretically) be irrelevant. When you go to your physician it may be helpful if he or she can empathize with your health problem so they might better understand symptons and order appropriate tests. But the interpretation of the tests, just like applying the law, is not especially helped by the application of empathy. In fact, it could interfere with rational analysis and steer one to a wrong conclusion.

Empathy is nice, but it is not a criteria for selecting a judge, and it may be a relative disqualifier if it interferes with objectivity.

Posted By: Truthmeister | June 1, 2009 4:00 PM

The problem is that her empathy only goes one way. She has made it clear that one party out of the two will always approach her at a disadvantage. That's not right.

Posted By: RDM | June 1, 2009 6:45 PM

RDM and Truthmeister, it just is not clear that you are right from her long history on the bench. Look at my above comments. She has rarely sided with the discriminated party and never (not once) was she the dissenting opinion for a discriminated party. You may not support her, but she is not an extremist according to actual cases. Yes she is a liberal, but she is being appointed by a Democrat. I think that Obama has actually picked a fairly moderate candidate (she was first appointed to the federal courts under Bush. There are many other worse options.

Posted By: Adam S | June 1, 2009 7:30 PM

As some other examples of this type of "empaty" and "better judge because of my experiences language.

Bush, July 1, 1991: I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. (talking about Clarence Thomas)

Alito, Jan. 11, 2006: When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. (Alito's confirmation hearings)

Posted By: Adam S | June 1, 2009 7:46 PM

Truthmeister and RDM, you're wrong about how the law works. If the law were like a scientific equation, we would not need judges, we could suffice with robots. To the contrary, many laws explicitly include a "reasonable person" standard. For example, in police interrogations, the law requires consideration of whether the suspect "reasonably believed" they were being detained by the police or whether they realized they could leave. In fraud cases, the law requires consideration of whether a person could have "reasonably relied" on the statement by another. In pornography vs. First Amendment rights cases, Justice Stewart famously said he would "know it when [he] saw it." The 4th amendment protects against "unreasonable searches and seizures."

Usually (although I'm a little fuzzier on the criminal law ones since that's not my area), "reasonability" is determined by looking at what a reasonable person in the situation of the person at issue would believe, not a generically or so-called "objectively reasonable" person. Yes, these tests are confusing even to lawyers and judges.

But, application of these legal principles expressly require empathy from the judge -- the judge MUST try to determine what a reasonable person in that particular situation might believe, feel, or be expected to do. For example, it might be that a senior citizen might have a greater expectation of privacy in his/her personal information than a young adult who is used to publishing every detail of their lives on the web. A woman might have a greater expectation of privacy in a matter because women tend to be more self-aware of personal safety issues than a man. Considering these matters is not an abdication of objectivity. Rather, it is doing what the law explicitly requires.

The blindfolded figure of "Justice" is meant to portray the rule of law that refuses to expressly decide a case on the basis of power, privilege, or person. The sorts of "reasonability" tests I've described go back centuries to the earliest beginnings of the English-speaking common law system and provide for fair treatment of those who come before the court. The symbol of "Justice" was never meant to overturn the requirements of the law.

Posted By: Christian Lawyer | June 1, 2009 9:46 PM

Christian Lawyer, in what you have just presented you have unwittingly proven my point. You have attempted to be objective in determining what meets a particular criteria, and that's what I'm arguing we should have more of.
As human beings we are limited by our unique personal capacity (sometimes self-imposed) to do that, especially when many variables are involved, and that may be part of what you are saying. If so, you are quite correct.

No one, including myself, is suggesting that judges, who are flawed human beings like the rest of us, are perfect in their attempts to interpret and apply the law. But they can always do better, and when someone suggests that judges are not perfect and therefore any expectation that they move toward perfection is unreasonable, then such talk is not helpful in getting us closer to the goal of justice and may actually move us away from it.

Our western system of justice has made tremendous strides due to one main reason: the creation of objective standards and the impartial application of them. If we assume that a liberal amount of subjectivity (to include the aforementioned "empathy") will always be part of the equation, and in fact is preferred, then we become lazy in pursuing a more objective standard, which is what that theoretical thing we call "justice" really requires.

The blindfold on lady justice means what you said....and more. It means, among other things, that a judge will interpret and apply the law in a way that maximizes objectivity, which, incidentally, also requires the judge to stay within the boundaries set for him or her by the system (i.e., not "legislating" from the bench).

I strongly challenge your assertion that emotions like "empathy" are particularly helpful in this process. In fact, they could be a real detriment.

Posted By: Truthmeister | June 1, 2009 11:21 PM

Truthmeister, I want to honestly and respectfully ask for what is different between what you said in the last post and what Christian Lawyer said. I think we have some different definitions going on here. I understand that you don't think legislating from the bench is helpful.

But what I don't get is that you seem to suggest that we should be using our personal capacity to understand a situation. Then you assert that the judge needs to stay within boundries (I would assume you mean stare decisis among other things, but maybe not.) If I understand those two points I think that you are basically in the same position that Sotomayor is. She has said that her status as a Latina woman has helped her understand the minority status of others, but that she must continually check her assumptions to insure that what she doing is right according to the law and the situation. Then she takes stare decisis very seriously and her record shows that she rarely goes against the precedent. That seems to be what you are asking for.

Posted By: Adam S | June 2, 2009 6:58 AM

Adam, maybe we are having a problem with semantics, and maybe I just didn't express myself clearly enough, but I would invite you to go back and read both of my prior posts.

Christian lawyer said that empathy is actually required from a judge. The term "empathy" implies that a judge in some way "feels the pain" of a defendant or a victim.

This may mean, for example, that the judge identifies more strongly with the defendant than the victim, thereby interfering with an impartial application of the law. Our emotions frequently lead us away from objective truth.

Feeling "empathy" is different from understanding the viewpoints of the different persons involved in a legal dispute in the effort to ascertain relevant facts. "Stare decisis" simply refers to reliance on legal precedent as a guide in present and future applications, and that is another important, objective approach that we should expect from any judge.

Sotomayer will probably end up getting confirmed, but if a white male, or even a white female, had made the same type of comment regarding race their nomination would have been dead on arrival.

The fact that we "need" a minority female on the court will cause the majority of people to "look the other way" regarding any questionable attitudes, decisions, comments or temperament on the part of Ms. Sotomayor.

Notwithstanding that, she may still end up being a great Supreme Court Justice.

Posted By: Truthmeister | June 2, 2009 9:05 AM

My comments above showed a line from Alito's hearing that indicated fairly similar feeling as what Sotomayor said. Scalia's appointment was clearly identity politics as was Thomas's appointment. So that line just doesn't seem to make sense to me. I have read conservative opinion after conservative opinion about why what she said was not racist, so we will have to disagree on that point.

But on your first point, I think you are automatically assuming that empathy is only for the defendant. A judge with appropriate empathy is concerned about the defendant, the plaintiff or victim and the whole case. As I stated above her history of actually using her empathy is that most of the time she has not found for the defendant and when she has most of the time it was a unanimous case. I think that you are allowing your own bias to make the assumption that empathy can only be for the defendant. That is not what she or Obama said when talking about empathy.

Posted By: Adam S | June 2, 2009 11:27 AM

Adam, I appreciate your attempts to grapple with this issue but you clearly are not understanding what I'm saying on at least a couple of fronts (i.e., my "example" above could have just as easily been a judge who identified too strongly with the the alleged victim). You may be unknowingly engaging in the psychological phenomenon of "projection."

For my part I am honestly trying to address the issue rationally and fairly. Maybe someone else can chime in.

Posted By: Truthmeister | June 2, 2009 11:54 AM

Truthmeister: "when someone suggests that judges are not perfect and therefore any expectation that they move toward perfection is unreasonable"

--This is not what Judge Sotomayor or anyone else is saying. In fact, she said just the opposite -- that we should always strive to apply the law objectively, but that this is sometimes and often impossible.

You still misunderstand the role of the "reasonable person" test within the law. The law requires the use of an "objective test" in some circumstances and a "subjective test" in others. Here's one area of law requiring use of an "objective test":

"Whether Moya was "in custody" and entitled to Miranda warnings is a mixed question of law and fact; we review the district court's factual findings on the matter for clear error and its legal conclusions de novo. Jacobs v. Singletary, 952 F.2d 1282, 1291 (11th Cir.1992). At the outset, the issue is whether "under the totality of the circumstances, a reasonable man in the suspect's position would feel a restraint on his freedom of movement ... to such extent that he would not feel free to leave." United States v. Phillips, 812 F.2d 1355, 1360 (11th Cir.1987) (citations omitted). The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984); Phillips, 812 F.2d at 1360. But, to be more specific, the Supreme Court has said that whether a suspect is in custody turns on whether restrictions on the suspect's freedom of movement are "of the degree associated with formal arrest." Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984) (citations omitted). And, under the objective standard, the reasonable person from whose perspective "custody" is defined is a reasonable innocent person. See Florida v. Bostick, 501 U.S. 429, 437-38, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991). Whether a defendant knows he is guilty and believes incriminating evidence will soon be discovered is irrelevant." http://bulk.resource.org/courts.gov/c/F3/74/74.F3d.1117.94-4912.html

In other circumstances, the law REQUIRES a "subjective test":

"The standard for determining whether an individual's consent to search is voluntary is a subjective one aimed at determining whether that individual's consent was freely and voluntarily given and was not the product of police coercion. See Schneckloth, 412 U.S. at 225-26; Wilson, 895 F.2d at 171. ... In short, the proper voluntariness question is not whether the conduct of the officers was sufficient to communicate to a reasonable person that she was free to decline the request, but whether Mrs. Wilson subjectively felt free to decline or give her consent under the circumstances. Accordingly, we remand for further consideration of the voluntariness issue under the proper standard." http://bulk.resource.org/courts.gov/c/F3/19/19.F3d.1431.92-5607.html

In either type of test, a court MUST look at the circumstances the person finds themselves in. This is not bias in favor of a defendant or a police officer. Rather, the law REQUIRES a court to have empathy, that is, to be able to understand the feelings and thoughts of another. This is not mere "emotion." It's the ability to acknowledge the feelings of others, not necessarily feeling the feelings of others.

The law tells the judge which person's circumstances must be considered and which not. In the first case above, it's the suspect. In the second case, it's the person who gave consent to a search. In a contract case, it's both parties. In a rape case, the court must look at whether the victim consented and what the defendant's state of mind was.

If you have any example of Judge Sotomayor inappropriatelyt showing bias or using empathy where it's not called for in the law or not following precedent, please bring them forward. She has several thousands of opinions, mostly available on-line. To the contrary, she has historically followed precedent and she has explicitly stated that she aspires to objectivity. She does, however, as does Justice Alito, believe that a judge can properly consider the circumstances of a person WHEN THE LAW ALLOWS.

Posted By: Christian Lawyer | June 2, 2009 8:36 PM

Christian Lawyer, my comments were related more to the philosophy of law and the theory of how justice can best be achieved. I would invite you to read my comments again and maybe that will come through. You may want to study the word "empathy" a little more so you can better appreciate my contention that it can be an impediment to impartial decision making. Let me offer you the words of another commentator:

"Obama said a Supreme Court nominee's two most important qualities are rigorous intellect and mastery of the law and recognition of the limits of the judicial role — that a judge's job is to interpret law, not to make it.

Then came the "but," the exception that imperceptibly swallowed the rule. He quoted former Justice Oliver Wendell Holmes as saying, "The life of the law has not been logic; it has been experience."

In other words: "Forget what I just said about how judges should interpret, not make, the law. I want my judges to have empathy. And don't tell anyone, but when I say 'empathy,' that's code for bending the law to achieve the results I want, based on the selective empathy I have for certain victimized groups."

Before you fall for the upcoming protests that Sotomayor truly is a practitioner of judicial restraint, you might want to examine her record, including the case of Ricci v. DeStefano.

Frank Ricci is a dyslexic Connecticut firefighter who quit a second job in order to study up to 13 hours a day and paid someone to read his textbooks onto tape in preparation for the New Haven Fire Department's exam for promotion to lieutenant or captain. Though he received the sixth-highest score out of 77 applicants vying for eight vacancies, the city decided to deny him (and all other applicants) his earned promotion because no black applicants passed, even though the exam had been constructed carefully to ensure race neutrality.

Ricci was among 18 candidates, including 17 whites and one Hispanic, who sued the city of New Haven for racial discrimination. The district judge issued summary judgment against the plaintiffs. On appeal to the 2nd U.S. Circuit Court of Appeals, Sotomayor was one of three judges on the panel who issued a per curiam opinion (adopting the full reasoning of the district court without elaboration) affirming the district court's ruling.

The plaintiffs failed to achieve an en banc (entire court) rehearing of the appeal, but not without a strongly critical dissenting opinion from one of Sotomayor's fellow Clinton appointees on the court, Judge Jose Cabranes.

Cabranes noted that it was highly unusual for the panel to have issued a per curiam opinion, because the questions raised on appeal were "indisputably complex and far from well-settled." He wrote, "The core issue presented by this case — the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants — is not addressed by any precedent of the Supreme Court or our Circuit . . . What is not arguable . . . is . . . that this Court has failed to grapple with the questions of exceptional importance raised in this appeal."

Sotomayor and her like-minded colleagues not only highhandedly denied justice to the aggrieved firefighters in this case but also tried to bury their injustice in their summary affirmation of the district court's ruling, something that obviously troubled Cabranes. This is judicial activism at its most egregious and least transparent, when judges disregard the law to achieve the result they prefer and attempt to conceal their actions.

Again, this is what Barack Obama obviously has in mind when he discusses "empathy." In Ricci v. DeStefano, Sotomayor's empathy was for those who weren't aggrieved — call it "reverse empathy." She just didn't have any left for the poor saps who worked their tails off to earn their promotions — just as Obama doesn't have any left for mortgage debtors who honor their obligations.

Although defenders of Sotomayor will argue that she didn't engage in judicial reverse discrimination in this case, the facts yell otherwise.

But if you're still in doubt that she would base her rulings on her personal feelings, be aware that, in a speech at Berkeley in 2002, she said it's perfectly acceptable for judges to consider their "experiences as women and people of color" in making their decisions.

Also readily available (on YouTube) is videotape of her saying, before remembering her comments were being taped and then feigning to backtrack, that "the Court of Appeals is where policy is made." "

Posted By: Truthmeister | June 2, 2009 9:34 PM

TM -- you've set out a philosophical view of how the law SHOULD function, yet you disregard the examples I posted of how the law ACTUALLY functions. Likewise, you've posted one commentator's view of how you both BELIEVE Judge Sotomayor will rule based on 1 out of thousands of her opinions, but you ignore the analysis of the thousands of other ACTUAL rulings she's already made that Adam S posted about, which I think come from scotusblog.com, one of the most well-regarded sources of analysis for Supreme Court scholarship. It's impossible to have an honest discussion without someone who wants to deal in hypotheticals when actual facts are available.

The Ricci case is certainly a difficult one, but a per curiam opinion is permitted for a reason and in Ricci there was a lengthy, well-written opinion by the lower court going through the extensive evidence presented by both sides and going carefully through the law. Of course, the evidence was much more mixed than your commentator acknowledges.

One key point overlooked is that the City held 5 hearings AFTER the test, revealing only the racial and ethnic breakdown of the results, and called a number of experts to re-analyze the test and the results to try to figure out if the test was flawed in some way. The results were mixed. It was not clearly flawed in an identifiable way, yet there was testimony from which it could have been concluded that the areas of questioning favored white test-takers over minority test takers because there were different ways that firefighters could achieve the same goals and methods differed among different groups.

The question was NOT whether the court felt more sympathy for the minority test-takers or the majority test-takers. The specific legal question before the court was whether the City's decision to throw out the test results claiming that it was trying to follow the civil rights laws was merely a pretext for an invalid, intentional decision to disfavor one group at the expense of the other. Empathy for the minority test-takers was not really an issue. Read the district court decision for yourself. http://www.ctemploymentlawblog.com/uploads/file/ricciusdc.pdf

Posted By: Christian Lawyer | June 3, 2009 6:52 PM

I appreciate the thoughts of this article! About the first thing I've seen that digs a bit under the surface, and quite properly showcases the human, subjective element almost always involved in applying the law. Brooks is right... we don't want absence of empathy, but empathy broadly and equitably applied. And accordingly, diversity of both gender and ethnicity on the high court IS vaulable.

Posted By: Howard Pepper | June 4, 2009 1:54 AM

Christian Lawyer, in your earlier post you asked for a case that showed possible evidence of inappropriate bias on the part of Ms. Sotomayor....and I gave you one. And, with all due respect, I find your response to be rather inadequate and defensive. (You, along with many others involved in this debate, continue to misunderstand the most common meaning of the word "empathy" and why it may not be in the best interests of achieving true justice, but I will not keep on beating a dead horse.)

Ms. Sotomayor has certainly presided many cases, but some should be considered more carefully than others since they have the potential to be more consequential. And her comments and lectures, like those of all Justice nominees before her, should be fair game. We're talking about a lifetime appointment to the highest court in the land. There is no higher court of appeal.

You apparently dislike dealing in hypotheticals, but if we are to speculate on future rulings of a potential Supreme Court Justice, as well as ways of improving the Justice System, then we have no choice but to deal in some hypotheticals.

Other relevant facts to consider include Ms. Sotomayor's high rate of turnover on appeal, and in January of this year Sotomayor was among three judges on the U.S. Court of Appeals for the 2nd Circuit who issued a short unsigned opinion rejecting a defendant's claim that a New York state ban on nunchakus, a martial arts weapon, violated his constitutional right to keep and bear arms. This would appear to show an unusual interpretation of the 2nd amendment.

As a member of the general public neither I nor anyone else should not be expected to comprehensively examine the record of Ms. Sotomayor, even though the state of modern journalism is glaringly deficient in impartially doing such things for us. But, based on what I know thus far, and despite the major red flags presented, I agree with you that she should would not qualify as an ideologically-driven judicial "activist."

Nevertheless, facts are still coming out and there is yet to be a hearing. Ms. Sotomayor was identified early in her career as a potential Supreme Court nominee and that may well have factored in some of her rulings. We don't know these things yet, but she needs more scrutiny.

While maintaining a healthy degree of skepticism I remain open-minded regarding her nomination and would encourage you and all others to do the same. I do thank you for the information and perspective you have provided.

Posted By: Truthmeister | June 4, 2009 11:37 AM

In all of her years only 3 of her five cases reviewed were overturned. That may seem high, but those cases that where the court is likely to agree with her, they don't take the case. So in reality only about 2 percent of her cases were overturned, which is not a high rate.

Also while the Ricci case is open to interpretation, many legal scholars believe that she did not have much option in her ruling because of the state of the law. And you keep being resistant to the actual facts of the case. What was being ruled on by her was not the firefighters and their plight, but the ability of a city to follow the law. The facts of the case were decided already. What she is ruling on is not the facts of the case (which you talk partially about) but the state of the law that concerns those facts. The law says that if there is a disparity in a placement test, then the test can't be used.

Posted By: Adam S | June 4, 2009 1:25 PM

Adam, I concede that the reversal rate may not mean much since it involves a small number of cases, but it is part of the overall picture that should be considered. I don't know where you are getting the 2 percent since a case cannot be overturned unless it is appealed. It's illogical to include cases that were not appealed since they had no chance of being overturned.

The cases overturned include one environmental and one prison abuse case that are drawing strong scrutiny. In the two cases where Sotomayor rulings were upheld only one was firmly accepted by the Supreme Court. In the other case the Supreme Court upheld her judgment but repudiated her reasoning.

In the five cases overall, her decisions won 12 votes from the high court, with 32 votes against.

Posted By: Truthmeister | June 4, 2009 4:04 PM

Truthmeister -- It's you who misunderstand the word empathy and misunderstand that just because there is a lay understanding of the word doesn't mean that highly trained constitutional scholars can't reconcile the idea of empathy with their obligations under the law. I've pointed you to 2 examples of specific law that REQUIRES a judge to expressly determine what a reasonable person in a particular situation would do/believe/act. You continue to ignore that. When Pres. Obama and Judge Sotomayor speak of empathy, they speak as constitutional lawyers, not lay people.

In Maloney v. Cuomo, the nunchaku case, the 3-judge panel, including Judge Sotomayor, unanimously upheld the NY statute based on an 1886 US Supreme Court decision that expressly held the 2d Amendment did not apply to the states. Now, you can argue that later Supreme Court cases make clear that, should the issue come before it again, the Supreme Court will likely overrule the 1886 case. But, the 2d Circuit was obligated to follow precedent.

In fact, just this week, the 7th Circuit, out of Chicago, in an opinion written by highly-regarded conservative Judge Easterbrook, and joined by highly-regarded Judges Posner and Bauer, explicitly agreed with the Second Circuit and followed the same 1886 precedent. See NRA v. Chicago.

Even if the Supreme Court reverses Maloney and NRA v. Chicago, it will be because the Supreme Court receded from its earlier precedent, not because the two Circuit Courts misstated the law.

Her lectures and speeches are fair game, but only if you fairly read them in context.

I don't have a problem with dealing in hypotheticals, but you're not using hypotheticals. You're extrapolating broad conclusions from 1 or 2 cases out of about 3600. This is particularly inappropriate when you clearly don't understand the procedural posture of the cases you cite.

Judge Sotomayor's decision in Ricci was approved by a majority of the entire Second Circuit sitting in banc. Really, how far out of the mainstream could it be, even if it's overturned by the Supremes?

Your "reversal rate" comments omitted several key facts:

- Cases that don't get appealed have to count for something because, while yes, they can't get overturned unless they are appealed, but before that, they can't get appealed if there isn't a serious appellate issue. You misapprehend the process to discount all of the cases in which the parties accepted Judge Sotomayor's decisions.

- The Supreme Court reverses approximately 74% of all cases it takes from the Second Circuit, and about 3/4 of all cases it takes, so her rate of 3 out of 5 is actually better than the national average.

- The Supreme Court doesn't take cases where there isn't a split of authority among the Circuit Courts, so the cases that make it to the Supreme Court are already likely to be the ones the Court disagrees with.

- Justice Alito had a 100% reversal rate at the Supreme Court when he was nominated. It was not really raised at all.

All of this, and more context, is explained in this article by the completely non-partisan National Journal. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431087253&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20090601NLJ&kw=Critics%20pounce%20on%20Sotomayor%27s%20reversal%20rate&slreturn=1

So, again, the facts and the law are just not in line with your fears.

Posted By: Christian Lawyer | June 5, 2009 12:07 AM

CL, you are presumptuously poking holes in arguments I've not made and evading those I have (e.g, I NEVER said that the 200-plus cases Sotomayor presided over didn't count for anything, I was simply pointing out that in EIGHTY PERCENT of cases appealed to the Supreme Court her legal reasoning was shot down. As I further stated it should be considered in the context of a small number of cases....MY GOODNESS!)

I can see it will do little good to point out the illogic in some of your preceding comments since you seem unable or unwilling to understand what I've said thus far (you concede absolutely nothing), but let me just bring up a couple of straightforward questions which should call for straightforward answers.

1) I am unaware of any specific legal definition for the word "empathy." If you could point me to an objective source for this I would appreciate it. By far the most common meaning is to, in vicarious fashion, emotionally experience the actual feelings of someone else.

2) In Maloney v Cuomo I was unaware that the 2nd Circuit was "obligated" to follow precedent. It was my impression that precedent is to guide but not bind, and it was my further impression that the Constitution trumps a legal judgment generally considered by most intelligent people to be an outlier.

3) I was unaware that Barack Obama has any specialized training or experience that would qualify him to be called a "constitutional lawyer." If you could provide facts on this I would be most appreciative.

3) Is there anything presented up to this point by me or anyone else that causes you concern about Ms. Sotomayor??

Posted By: Truthmeister | June 5, 2009 1:46 PM

TM- "I was unaware that the 2nd Circuit was 'obligated' to follow precedent. It was my impression that precedent is to guide but not bind, and it was my further impression that the Constitution trumps a legal judgment generally considered by most intelligent people to be an outlier."
-- This is utterly incorrect. That you don't understand the single most important concept underlying the rule of law in our common law system invalidates every other opinion you've spouted here.
Our system of law is based on "stare decisis," which is a shortend phrase standing for the Latin "that which has been decided must stay decided." "Binding precedent," sometimes referred to as "vertical stare decisis" refers to the mandatory rule of law that inferior courts are "bound" to follow the precedent of higher courts within that system. Thus, as the Supreme Court held:
"But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." HUTTO v. DAVIS, 454 U.S. 370 (1982) (per curiam, unanimous). http://caselaw.lp.findlaw.com/scripts/cases/clcc.html?court=us&vol=454&invol=370
"We do not suggest that the Court of Appeals on its own authority should have taken the step of renouncing [old Supreme Court case]. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." DE QUIJAS v. SHEARSON/AMERICAN EXPRESS, INC., 490 U.S. 477 (1989). http://openjurist.org/490/us/477 The Second Circuit expressly followed this rule.
It works the same in the state courts:
"Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. ... Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962). http://online.ceb.com/calcases/C2/57C2d450.htm
In contrast, "persuasive precedent" is more along the lines of what you are talking about:
"Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, State courts versus Federal courts in the United States), and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court." http://en.wikipedia.org/wiki/Precedent#Binding_precedent
To not understand the difference between the two types of precedent, to not understand the SIMPLEST and most commonly understood of those 2 concepts (that lower courts are BOUND to follow the decisions of higher courts), is to show that you are utterly and hopelessly ignorant of how our system of law actually works.

Posted By: Christian Lawyer | June 7, 2009 9:54 PM

CL, thanks for your cordial response. Really classy. You totally ignore Heller as well as the 2nd Amendment. You totally fudge in calling Mr. Obama a "constitutional lawyer." You proceed as if there's some specific legal definition for the word "empathy," yet provide none upon repeated opportunities to do so. You hide your incapacity for rational thinking behind egotistically expressed legalisms you don't even understand. Next time you want to blow smoke, pick somewhere else to blow it. If you are a practicing attorney it's no wonder we have such problems in the legal system. LOL

Posted By: Truthmeister | June 9, 2009 3:13 PM

TM -- Notably, you didn't, because you couldn't, challenge the substance of my last post.

You criticized Judge Sotomayor's decision in Maloney, the 2d Amendment case about the nunchakus or nunchuks. I pointed out that it was a unanimous decision of the 3-judge panel of the Second Circuit, which was approved by a majority of the full circuit court, and which was agreed with by a distinguished unanimous panel of the Seventh Circuit. Thus, the decision was well within the mainstream and not extreme as you suggest. Moreover, both the Second Circuit decision and the Seventh Circuit decsion make clear that the decision was based on an old US Supreme Court case, Presser (1886), which is BINDING PRECEDENT on the Second and Seventh Circuit courts.

You said you didn't think the precedent was "binding." You thought judges were only "guided" by precedent, not bound by it. I quoted 2 US Supreme Court cases and 1 California Supreme Court case, all explaining opinions of higher courts are binding on all lower courts within that court system, and demonstrating clearly and irrefutably that your "understanding" of precedent was utterly incorrect. (This, in fact, does make you woefully ignorant of the prime directive of our legal system.)

Heller, a recent decision from the US Supreme Court on the 2d Amendment, DID NOT overrule the old Presser (1886) case. In fact, Heller said Presser is still good law. See Heller at fn. 23. Thus, both the Second and Seventh Circuit courts were correct to follow it.

Even if the US Supreme Court reverses both Maloney and NRA v. Chicago, it doesn't mean that the two circuit courts were wrong for following precedent. As the US Supreme Court said in Hutto and De Quijas, the two cases I cited, it's not for the circuit courts to ignore precedent. It's up to the US Supreme Court to change its own mind.

When you get a liberal, as Judge Sotomayor undoubtedly is, and a conservative, as Judges Posner and Easterbrook undoutedly are, agreeing on the law, that's usually a good clue they are probably right. Only in some parallel universe would that be considered extremist or outside the mainstream.

While you are correct there is no "legal" definition of "empathy," that doesn't mean there aren't legal principles that draw on the colloquial meaning. Use of a colloquial term when speaking to non-lawyers doesn't mean the lawyers urged rejection of the law in favor of the colloquialism.

Pres. Obama taught "constitutional law" classes at the University of Chicago for many years. He also litigated constitutional issues briefly in private practice. In any rational person's mind, the teaching position alone makes him a "constitutional lawyer."

Give it up. You're just wrong on the law and the facts.

Posted By: Christian Lawyer | June 9, 2009 7:44 PM

CL, you have provided some good legal reasoning and resources, and I credit you for that, but you call your credibility into serious question by stating as fact what is essentially your opinion. There’s a name for this: arrogance. I’ve seen some of your posts elsewhere and would suggest you take a more moderate tone lest you betray that moniker you’ve chosen to use (you might start by NOT calling those who disagree with you “hopelessly ignorant.”).

With respect to Maloney, there is a strong case to be made that Presser is a binding precedent, but there are some reasons to take another view, in stark contrast to what you have affirmed. Binding or mandatory precedent basically says a court is "bound" to follow a precedent of that jurisdiction only if: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was required in the precedent case; (3) the basic facts of the precedent case are essentially replicated in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.

I would argue that probably because of point (1) and definitely because of point (4) the Maloney case does not unequivocally qualify as falling under binding precedent. As I’ve stated, you can reasonably argue the other way, but it’s not a cut-and-dried affair as you have so bolded asserted. Once removed from binding precedent then other factors come more into play.

Regarding any specific legal definition of the word “empathy,” I think you have essentially conceded that there isn’t one is spite of the fact that you have disingenuously implied such throughout this discourse. That opens the door for you to use the term very loosely and in whatever fashion suits your purpose at the moment. This doesn’t lead to productive communication.

Regarding Barack Obama’s qualifications as a Constitutional scholar let me offer you an excerpt from a 2008 article by Ed Lasky:

Senator Obama often invokes his expertise on constitutional law. Does he actually have any? You can't tell from his publications, and he even lacks a record of intellectual engagement as a legal scholar.

Although he was president of the Harvard Law Review as a student, in which capacity he no doubt wrote some unsigned notes, a search of the HeinOnline database of law journals turns up exactly nothing credited to Obama in any law review anywhere at any time. This is yet more indication that his status as "lecturer" at Chicago was not a regular faculty appointment, since regular full-time faculty are expected to produce scholarship. Notwithstanding an apparent eleven-year teaching career in constitutional law at a top-flight law school, not one single article, published talk, book review, or comment of any kind, appears anywhere in the professional legal literature, under Barack Obama's name.

As a person who prides himself on his legal background, should we be surprised that he did not seek a seat on the judiciary committee, a coveted spot for the Senate's most legal beagles?

Casting doubt

On the campaign trail he has issued a series of statements that cast doubt on the breadth and depth of his legal knowledge.

During a fundraiser in Denver, Barack Obama was asked what he hoped to accomplish in his first hundred days in office. His response:

"I would call my attorney general in and review every single executive order issued by George Bush and overturn those laws or executive decisions that I feel violate the constitution," said Obama"

One should not have to remind the former President of the Harvard Law review that a President of the United States cannot overturn a law. Only the Supreme Court can overturn a law; Congress can change laws. A President -- even one consumed by his own grandiosity -- cannot "overturn" a law. That is Constitutional Law 101.

He has certainly been wrong about the law and terrorism, and was wrong about the applicability of the Nuremberg trial in terrorism related legal matters (Does Obama Know What He Is Talking About? ). He certainly missed key legal aspects.

Blaming others

He misjudged the constitutionality of Washington D.C.'s gun control law -- which is surprising considering this has been a signature issue for him throughout his political career. He believed the DC handgun ban was constitutional and supported it. The Supreme Court disagreed and threw out the ban. In a move that has become a pattern with Barack Obama, he sought to distance himself from his earlier opinion, blaming an "inartful " statement from an "unnamed aide" for stating that Obama believed that DC ban was constitutional. Blaming staffers for his mistakes and problems may not be an inspiring campaign slogan but it is certainly a motif for Barack Obama.

Neither he nor his campaign objected or sought to clarify that statement when it was published last year in the Chicago Tribune. Only when the Supreme Court ruled and decided his view was legally wrong did he and his campaign try to disavow this position. This will be a problematic pattern: blame others for mistakes and seek to recreate history

Constitutional misinterpretation

State Senator Obama willfully misinterpreted a "Born Alive" bill that came before the Illinois State Senate when he served there. This legislation was meant to address the issue of babies who were born during abortion procedures. Illinois had been rocked by scandals of babies being allowed to die (there were even macabre "comfort" rooms set aside in hospitals where nature was allowed to take its tragic course). Legislation was submitted that afforded these babies the protection of the law. Babies born alive during an abortion would be treated just like every other baby born alive and prematurely. The legislation was also clear that it did not apply to unborn babies and would not restrict abortions or violate Roe v. Wade. Nevertheless, Obama spoke out against the bill saying it would not pass "constitutional muster" and three years later, in his book The Audacity of Hope, wrote that it would have overturned Roe v. Wade.

He was wrong. For those with a legal bent, the elements of this bill may seem familiar -- as it should. Almost the exact same bill: the Born-Alive Infants Protection Act, which passed in the U.S. Senate in 2001 by a margin of 98-0, supported by Senators such as Barbara Boxer who are fervent pro-choice advocates. Neither these Senators nor has the Supreme Court seen any constitutional problems with the legislation.

But Barack Obama, the constitutional law expert, somehow did. The superb new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate provides a very insightful treatment to this and many other issues involving Barack Obama; see also this.

However one may feel about abortion, the fact remains that Barack Obama was completely wrong on the legal merits of this legislation. Disappointing for a man who prides himself on being a constitutional expert.

For a man who was President of the Harvard Law Review and taught constitutional law for 12 years, he seems to have a very odd conception of the law. Or is there something more at work -- a yearning to interpret and apply the law to advance his liberal goals, even if it means ignoring case law and the Constitution?

This leads one to question how Barack Obama would see to it that he fulfills his Presidential obligations as outlined in Article 2 of the Constitution to

"take care that the laws be faithfully executed" (Article 2)?

We may be skeptical of his fealty to this principle, when he told the Teamsters union he would end federal oversight of the union in exchange for their electoral support. Such oversight was the result of a long history of corruption of the union. It was an unusual stance for a Presidential candidate; one not taken at any time before by any candidate. Up until now, union anti-corruption efforts have been treated as a legal matter left to the Justice Department. Barack Obama instead offers to lift this monitoring -- meant to prevent crime -- in order to gain votes.

How actively will he and the attorneys and judges he appoints monitor groups such as ACORN?

The Courts

Finally, how will a President Obama select Supreme Court nominees? They, too, apparently do not require a rigorous grounding in constitutional law. He disagreed even with fellow Democrats over the selection of Justices Roberts and Alito and voted against their confirmation -- despite (or maybe because of?) their sterling academic and legal credentials. He refused to participate in the so-called Gang of 14, a bipartisan group of Senators (including John McCain) who worked together to overcome roadblocks in the way of judicial confirmations.

His criteria for selecting justices (and remember a President appoints all federal judges and US Attorneys):

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

How about legal acumen? A sterling record of scholarship? Are those just optional?

These are lifetime appointments.

Nobody can deny that Barack Obama has an impressive list of titles to his name as a lawyer. But when it comes to actual substance as a lawyer and a scholar, very few accomplishments can be pointed to. The pattern of leaving no footprints when it comes to ideas should raise questions in the eyes of voters still trying to understand the man behind the public persona of Barack Obama.

Posted By: Truthmeister | June 13, 2009 11:51 AM