I pretty much agree with RP here, though I’m not a fan of Sotomayor.
However, I would say that there is no law that calls for judgments that require empathy in order to correctly apply them. Rather - having a certain amount of empathy can enhance that application.
OK. I don’t agree with you. You’re defining his words overly narrowly, as if they were intended to apply only to specific situations in which someone’s mindset is the issue. I don’t think that’s a reasonable interpretation of his words, especially after leading with the word “heart”, and also in considering his audience.
I don’t think a reasonable person would have interpreted his words as a whole, in that context, to be as narrow as you do.
That was a spot on analysis, first of all.
Second of all, that wasn’t about the specifics of the law. O’Reilly said as much. He’s not a legal analyst. Fox does have some of those, but that’s not what O’Reilly was speaking about. You might as well complain that O’Reilly’s statement you quoted doesn’t address climate change.
It wasn’t what he was talking about.
Not really. I’d say about 3/4 of what gets to SCOTUS is completely straightforward non-empathy-requiring legal interpretation. Indeed, this term there was a unanimous judgement in 66% of the cases.
Lots of the remaining cases involve good faith differences in doctrine that do not involve empathy or lack thereof.
It is a relatively small but nonetheless important number of cases that require empathy, and they generally involve interpreting the behavior of someone (or their likely behavior if the Supreme Court changes the law)–a kid who holds up a sign at school, a citizen who runs from a cop, a protestor who approaches the President, or a pharmaceutical company faced with new and different incentives. Technically, all the information necessary to make that judgment should appear in the record, and ideally Congress should be deciding whether, say, a different interpretation of drug patent law will lead to improper behavior on the part of drug companies. But in reality, no judgment applying law to facts is ever made in complete isolation from background experience and common sense. So we need people on the court who can put themselves in the shoes of a CEO, and also put themselves in the shoes of a poor black kid. We need both kinds of people, and ideally people capable of doing both.
Maybe there’s a subtle difference between “correct” and “enhanced,” I don’t know. All I mean is that results are legitimately improved within the rule of law by having a judge who can see things from different points of view.
While I don’t relish stepping into a role of defending Bill O’Riley, his commentary (at least the part you quoted) doesn’t seem to be about the legal case at all. Perhaps you cut this from a longer piece in which he wraps up by saying, “And, therefore, that’s why this lawsuit should end with the IRS rule being nixed,” (and I would not be shocked in the slightest if this were so) but the words you quote seem to be just a general “Here’s why Obamacare is bad,” as opposed to Marcus’ open advocacy for a judge to make his decision based on his sympathy for millions of people with suddenly-expensive healthcare).
It’s as if you only read my post, and not the one I was responding to. You are proving my point, which is that most pundits on both sides talk about overarching policy implications of legal decisions and not the nitty-gritty technical details that are actually at issue in lawsuits.
Ever? Even in extreme cases?
So if congress passed a law which was intended to provide road subsidies, but due to some comically bad copying and pasting the law actually made it illegal to drive at all, the courts should say “well, it’s now illegal to drive… sure that’s going to utterly destroy the entire economy of the united states, and is not at all what the law intended, but hey, it’s not our job to consider social good, just to enforce the law as written”?
I’ll say the same thing to you I said to F-Pipps earlier, which is that you’re presenting something as if you are the one who sees it clearly as an absolute with a defined line where everything on one side of the line is wrong, and you are right; and everyone else doesn’t recognize the line and is basically callow and purely self-interested at all times, when in fact I strongly suspect that, even if you are way closer to the absolute position than most of us, you’re still not at the fully absolute position, which means that you have to argue each case on its merits, not just say “well, here is my immutable absolute position, I wash my hands of further debate”.
As I said, I don’t have a super-certain position on the current ACA issue under discussion… but if this same challenge came up 10 years in the future, when there were millions of families that had for years been planning their lives and depending on their health care working a certain way, and the court ruling against subsidies had the very real possibility of totally disrupting the established order, I think that judges should certainly factor that into their decision-making. It would be utterly criminal not to.
Would you say that a judge’s ability to assess whether someone in a particular circumstance is objectively justified in feeling a certain way is more of a trial judge attribute, or would you say that it’s equally of value at the appellate level?
No, the two commentaries are substantively identical in the extent to which they suggest policy issues trump legal issues.
Marcus did not, as you say, advocate for “a judge to make his decision based on his sympathy.” She made an observation about what Kennedy is likely to do, after having discussed what the actual legal issues were. What O’Reilly did was very similar. He talked about the textual issue raised by the suit, and then said “But the overriding issue here is not the minutia of Obamacare it is the use of taxpayer dollars.”
If anything, while Marcus was making a descriptive claim about Kennedy’s decision, O’Reilly was making a prescriptive claim about what the overriding issue ought to be–not an arcane textual interpretation issue, but Republicans brave battle against Socialism. (:rolleyes:)
They are identical. Whether an officer had reasonable suspicion or probable cause based on the totality of circumstances is a question of law, decided de novo at the appellate level. Of course, a trial judge also gets to determine what facts are to be considered in the totality of circumstances–i.e., whether the officer really did see the kid throw something in the storm gutter before running away. But judges at every level consider anew whether, taking all the facts as given, the officer has the requisite legal basis for his subsequent actions.
Let me offer an example that’s right up your alley.
Federal judges–especially liberal ones–routinely hand down enhanced sentences to gun offenders who carry hollow point bullets, reasoning that one would only use hollow point bullets if their intent was to cause maximum carnage rather than to act in self-defense.
Would it be a good thing or a bad thing if those judges had more experience with ammunition and the purposes behind carrying hollow points?
Granted, a good defense attorney might introduce evidence relevant to that point (but they don’t, most of the time). But a good judge would also not leap to that conclusion without more evidence. He would know there’s more to the story, and require more information before reaching that conclusion. So it is with dozens of areas of law. Judges make factual assumptions all the time, in virtually every case. And those assumptions are informed by their backgrounds, and their ability to empathize.
Your hollow point example has everything to do with knowledge/experience of the judge. And nothing at all to do with empathy.
The point is that empathy is a natural result of knowledge and experience of a different point of view.
For the semi-neurotypical adult human, at least.
Exactly.
A judge with empathy might ask herself “Can I imagine any reason someone might want to carry hollow points other than malicious intent?” That’s a pretty basic thing to do for someone who thinks empathy is important. It’s called charitable interpretation.
Some people do that. Others don’t. Obama wanted someone who would do that.
There’s also the element of background and experience helping with that empathy. It’s easier to put yourself in someone else’s shoes if you used to wear those shoes.
When Abraham Lincoln acted outside the law to suspend the right of habeas corpus, he answered criticism of this move by asking rhetorically, " Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" So, sure, I see that none of our framework of laws ought to be a suicide pact.
But in your hypothetical, since the comical result is so clear, what stops Congress from correcting itself?
Why are the courts the last bastion between the destruction of the entire economy and the proper reading of the law?
So just because I concede that in the case of some future dystopian wasteland awaiting us if some future judge does not act to make law instead of interpret it does not mean I concede it for any less dramatic situations.
Republicans make good zealots. It must be because of the certainty (divine guidance ?) on which they subsist. Show me a man who has never been persuaded he was ever wrong about anything and I’ll show you a rock-ribbed Republican. That kind of certitude can only be found among religious zealots like Al Quaida or the GOP. It’s a mental affliction. Ever wonder why universities offer Liberal Arts degrees, but not Conservative ones ? Neither have I.
New around here, aren’t you?
What’s that matter ? Is there some political standard required, here ? If so, I’ll be leaving soon. I’ve been thrown out of classier joints than this. If that’s the right adjective, which it isn’t.
And you just made the case for mandatory sentencing guidelines.
Sure, let’s run with that.
So we’re agreed that it is important to have judges from many different backgrounds and who are committed to empathy–at least until such time as we’re able to eliminate all discretion and implicit factual assumptions from the application of the law?