Not like self-described libertarians, though. 
Empathy is an emotion. I would prefer to have intellectually curious justices who “know what they don’t know”. Your hollow bullet example isn’t really about empathy, but about ignorance.
I don’t know what you mean by “an emotion” in this context. Empathy is not a gut reaction or unreasoning response to something. Empathy is the act of using reasoning and experience to see something from someone else’s point of view. A failure of empathy is a species of ignorance.
In the hollow point example, it is both ignorance about ammunition and a failure of empathy. Even if one knew nothing about ammunition, someone who placed importance on empathy would certainly ask the question as to whether there was any charitable explanation for the decision to use these rounds. And that question, sincerely pursued, would inexorably lead to the conclusion that there are other reasons out there, which would require further fact-finding before concluding that mere possession of them indicated malicious intent.
Maybe not an emotion, per se, but the ability to recognize emotions in another person. i never think of “lack of empathy” meaning “I didn’t know a hammer could be used to pull out a nail”. If you empathize with someone, you understand why they feel the way the do.
Maybe we’re talking about the same thing, but using different words. It just seems that “empathy” is a strange word to use instead of “intellectual curiosity”.
Wow. You’re not only thin skinned but down right stupid, too. No matter. Just looking at a few of your recent posts (and this OP) and it’s pretty clear your time here will be brief.
John Mace: Well, you have to give a fuck about someone in order to want to ask the question about why someone would act the way they do. So the first step of empathy is giving a fuck, I suppose. But I don’t think there’s a very clean line between empathy and intellectual curiosity about what makes different people act the way they do.
Fotheringay-Phipps: Looking over Obama’s many statements on this, it seems obvious to me that some of it can fairly be described as endorsing jurists using the law to achieve their preferred policy ends, as you suggest. In my view, it is fairly easy to distinguish the political pandering statements from the genuine statements of judicial philosophy, but that could easily be my own bias. In any event, regardless of what Obama’s view is, I think there very clearly is a place for empathy in the law, and it is good to seek judges with empathy, at least as I’m using the term here.
Is “achieve their preferred policy ends” merely a dismissive way to say “do justice”?
No. Judges should “do justice” within their role as judges. The law quite rarely calls for inclusion of a judge’s own views about good public policy, and so as a general matter it is outside a judge’s role–and a subversion of the rule of law–for a judge to act to achieve her preferred public policy goals. There are exceptions, but they are few.
OK. But the more important point is not the word “empathy” or Obama specifically.
Because even if he was politically pandering on occasion, this at least indicates that there a bunch of people out there that he’s pandering to by using this type of lingo. Which indicates that there is indeed a school of thought out there who believe in using the law to achieve their preferred policy ends. Which brings us back to Bricker’s original point on which I commented.
No. We haven’t.
Mandatory sentencing guidelines are a backlash to judges injecting too much of their personal empathy. I don’t agree at all that we need to deliberately seek out judges from different backgrounds. We need to seek out judges who understand the law, and their role in applying it.
Yes, and my contention on that point is that you’re describing the average American. Americans–right and left–don’t give a shit about legal details. Bill O’Reilly’s audience cares about the battle against Socialism and Ruth Marcus’s audience cares about providing medical care to people. Neither cares about Chevron deference.
Then good luck in your quest to stamp out discretion and assumption-making from judging. I think those of us in the “empathy good” camp recognize that in the real world these things will always be with us, and the only reasonable response is to appoint judges with sufficient dedication to empathy and breadth of experience to minimize systematically biased outcomes that result from the fact that our judges are humans and not robots.
I agree with this. But this is true in individual cases. People root for the outcome they want and tailor their opinion of the legal principles to fit this. (Just like they do WRT all abstract principles.) But they don’t realize they’re doing it. So it does not represent their legal philosophies.
Meaning, if you tell the average American: “I am going to appoint judges who will make sure that such-and-such type of preferred outcome triumphs in cases before them”, I think it would be rejected by most people. But there are also some who accept it. Those are the people Obama would have been pandering to.
You can also see some examples of such people posting in this thread.
Or, more accurately, the subset of such people who prefer liberal outcomes are the ones Obama was pandering to.
In my view, the only difference between politicians on this issue is that conservative legal theorists have managed to persuade a number of people that applying the Constitution’s principles only as they were applied in 1789 (or 1868) is a value-neutral effort in judging that just so happens to produce extremely conservative results. So in addition to talking about appointing justices who will overturn Roe v. Wade, somebody like Romney can talk about literalism and original intent and everyone knows that means no rights for gays.
These two paragraphs seem inconsistent.
In the first, you seem to be saying that both sides like the principle of judicial rulings based on outcomes but just that Obama only panders to those on his side of the fence. In the second you seem to be acknowledging that it’s predominantly liberals, but just that the conservatives have bought into the idea of ruling based on original principles for self-serving reasons.
Yes.
It wasn’t very clearly expressed. I was pointing out that the only difference between the two in my mind is that conservatives use references to textualism and originalism
where liberals use references to a living constitution and the rights of various groups–all of which is largely shorthand for preferred social outcomes, and even though each actually refers only to a method of constitutional interpretation. I don’t necessarily think Scalia or Breyer developed their judicial philosophies for self-serving reasons. I do think average Americans claim to follow those philosophies for self-serving reasons.
Please also note the important difference between “ruling based on original principles” which I support and “applying the Constitution’s principles only as they were applied in 1789 (or 1868)” which I do not support.
Yes, you have to give a fuck about people to be interested in justice, but that is a very low bar. As you say, it’s the first step. Anyway, we seem to be saying about the same thing. We don’t want judges that have a fixed mind set and are not open to different ideas or that others might have different experiences than they had.
They’re out of session?
They’re in the middle of a filibuster about a completely unrelated issue?
But of course your definition of what’s drastic doesn’t necessarily agree with everyone else. Which is fine. But I believe that if we imagine a scale where 0 is “make decisions purely based on what you think would be a social good” and 100 is “make decisions purely based on the letter of the law”, even a vaunted strict constructionist yourself isn’t 100.0.
Here’s a related way to think about it. If you were a judge, obviously some cases would be pretty cut and dried, you’re entirely convinced that position A is correct or position B is correct. But others are closer. And others are SUPER close. Some, purely by chance, would be so close as to be perfectly balanced on the edge of a razor. At that point, what do you do? The human thing to do is to let your larger opinions about societal good tip the balance. Why should you not do that? Why should you not strive to make society a better place, when you can do so while being as conscientious as humanly possible in maintaining high standards of jurisprudence?
It means that legislatures, not courts, fix the problem of “No rights for gays.”
It does “just so happen,” because resistance to change is an aspect of conservatism. But it also fits with what we supposedly revere as our notion of representative democracy.
I shouldn’t because that’s not my role.
Your comment comes close to the fallacy of the heap – is 1 grain of sand “a heap?” Clearly not. How about 2? 3? And then whenever I concede that, ok, 2,000 grains of sand is a heap, then you point out than there’s only 1 grain of sand that separates 2,000 from 1,999, and to deny that 1,999 grains are a heap is silly, given that 2,000 is.
I suppose we might imagine some issue so closely balanced that I, as a judge, can tip either way – but that’s a rare issue indeed. And my role in judging is not to let my opinions about societal good tip the balance at all, any more than you’d be happy hearing an umpire say, “Of course, I call 'em as I see 'em, but sometimes the ball is so close to the strike zone that it could really go either way, and then I let my idea about which team should win guide my decision.”
I’m personally looking forward to the deployment of the Scotusbot 5000. It’ll turn justice into what it should have always been - an exact science.