I was wrong about Sotomayor speech

That was a fair and reasonable posting there, Rod.

At the risk of sounding overly flattering (which is something I'm not often accused of!), I'd like to say that this is why your blog is one of the best around here, Rod, and why you seem to have one of the largest stables of regulars. You are always willing to look at the facts, re-evaluate where you're coming from, and to say "heck, I was plain wrong" when the situation warrants. You are also willing to look at ideological opponents and give them their due as people, to show pride in their accomplishments, and to give them legitimate kudos where appropriate. These characteristics separate you from so very many out here in the blogosphere, especially (at the risk of generalizing!) on the Right. Excellent post, Rod, kudos to you, and keep up the good work!

Stunningly naive, when you go before a judge what is expected is the application of law. If you have problems with the laws then as a people the law must be changed, not the application of them, what's so hard to understand about that?

If we live in a society where anarchy previals, our society must fail and that seems to what you are endorsing. Sentencing perhaps is where wisdom and empathy can be employed but not when it pertains to the laws of the people.

AndyG,

Back before most laws had been codified, there were two sets of courts in the Common Law system: law and equity. Equity was the court that had the job of making sure that the courts of law didn't force injustice upon someone because the law, as applied in a particular case, was unjust. Eventually, the courts of equity were merged into the courts of law and it became the responsibility of all judges to apply the law in a way that was fair and just. So, no, we are not asking judges to be unfeeling automatons who don't actually care about the effects of their rulings. The law is neither as simple as you imply nor as simple to apply as you claim.

freelunch,

The role of equity courts was to effect justice in particular cases where the law was unable to do so. Their decisions did not change the law, but merely made specific remedies available to those for whom the law provided no adequate remedy. That's not a model for an appellate judge who is tasked with interpreting the meaning of a written Constitution.

Simon:

No one asked the justices to feel sympathy, they said that the justices needs to feel empathy. The words are different words for a reason, they have different meanings. Empathy is the ability to put yourself in the position of someone else, nothing more.

At the appellate level, particularly the Supreme Court level, almost every decision is an attempt to balance competing rights. The Supreme Court for example, just had to balance the right to counsel against the government's right to question a suspect. Under what circumstances can the police continue an interrogation? Must they stop asking if the suspect asked for a lawyer but remained willing to talk? Will that encourage cops to browbeat others in the future if they are allowed to continue to question? There are no simple answers and the decisions generally affect very few future cases. The 5-4 and 6-3 split decisions are that way because there is no obvious decision for that question.

If a judge is unable to put himself into the position of both parties and understand how his decision will affect both parties and parties to come, he is not competent to be a judge. Laws don't get applied by rote. They are not simple rules that can be programmed into a legal-decision-making computer.

Only the hard cases even get to the Supreme Court. Certiorari (the Great Writ by which one arrives at the Supreme Court) is discretionary to the Court. The easy cases get sorted out in lower courts.

So yes, we need more than algorithms and logic at that level. We need empathy, we need farsightedness, we need vision, we need creativity. And we need politics and policy.

I don't know enough about this lady to determine whether or not she's up to the task.

Rod,
You wrote, "...I was favorably impressed by aspiring judges who talked about, well, empathy." "...justice is not the same thing as rote application of the law..."
It's too bad you can't take the microphone from Republican leaders like Rush, Orrin Hatch, Michael Steele, etc. who are splitting hairs over the meaning of "empathy". They certainly have provided some nice soundbites for Democrats in the midterm.
Conservatives are now saddled with folks that condone torture and see no place for empathy.

Rod:

Thank you so much for approaching this matter on something other than the purely polemical basis that we have seen used in the past by both parties when approaching SCOTUS nominees.

Whethr Sotomayor is the best choice or not, remains to be seen. But you have striven for genuine fairness, rather than scramble for sound bytes that quickly feed someone's ideological propaganda machine.

That's what a real journalist is supposed to do! How refreshing!

The only thing wrong is that Sotomayor can get away with outrageous rhetoric, slurs against white males, and speaking in front of an ethnic activist organization and white people have been so brow-beaten as to think this is okay.

I read the whole thing. I've re-read parts of it and probably will need to read it several hundred more times before I can really understand it but one thing still gives me pause. To paraphrase-a wise Latina woman will make a BETTER decision than a white man.

Better? For whom? For women? For Latinas, Latinos? These will not be her only constituents. Will she follow the rule of law or make it up as she goes along in order to make her better decision. Not that that has not already happened on the Supreme Court. I'm still not over the decision rendered on Eminent Domain and its intended meaning.

Other than this one sentence and her admission to rendering from the bench (kind of an 'we all do it so it's okay' statement) I don't she that she would be any different than Souter. Unless, of course, we aren't getting the full story.

Oh, and the pig intestines she's so proud of pointing to as evidence of her Latin heritage... They're as American as apple pie. When I ate them at Grandpa's they were called "cracklin's , down South I believe they are called "chitlins".

Who Knew- well, we all do now- you are not so bright! Cracklins and chitlins are NOT intestines but bits of fried pork skin (rind). Why shouldn't she be proud of her heritage? Everyone of us came to this country as an immigrant. I am proud of my Russian heritage, whatever you are, I bet you are too. Did you go to Princeton or Yale? Are you a seated judge? Did your mom work 2 or 3 jobs to support you? She should be damn proud!!

I am very proud of you today, Rod.

This is a good start, but I'm still waiting for you to apologize for calling her a "Quota Queen." Or do you still stand by that ignorant statement?

"And that's all apart from the question of whether empathy belongs at all -- it does not, because every case has two sides and having empathy for X automatically implies rejecting it for Y. It's just a rationalization for (in this case) ethnic power."

This is incorrect. Empathy means the power to understand how that person feels and why they feel that way. There is no reason one cannot (or should not try to!) feel empathy for both parties - and by having that empathetic feeling, come to a better judgment based on the situations of both parties in respect to the law.

Victor Morton,

You seem to me to be advancing almost a pure, rationalistic Enlightenment argument, and you do not take into account the fact that every judgment of reason about what is just or wise or good is situated from within a practical life and its cultural traditions. A universal definition of "wise" or "just" is almost contentless. Justice is giving to each what is his due. Well, what is due to each one? That question cannot be answered according to an abstract set of universal rules but only within a context of common cultural, traditional, and economic expectations, and commitments.

Now, I am from NH and have no experience with Latino culture in the United States, so I cannot judge Sotomayor's particular claim. Nevertheless, it seems to me not at all unlikely that someone raised from within a rich, traditional culture that remains in contact with ancient wisdom, more whole, connected ways of life (within families and neighborhoods), and the great art that the culture has produced, will be someone far better able to make a wise and just decision than someone who's grown up in a deracinated, fragmented, shallow, p*rnified, consumerist culture that worships money and speed.

And while it is singularly unhelpful to state these things in terms of race, since we tend to think overly scientifically and, therefore, in a biologically deterministic way about characteristics represented by skin color and social identification, it is absolutely the case that certain cultures are richer, better, and more wise than others, and anyone can know this, not by applying some sort of universal, abstract rule, but by engaging in a real, involved conversation with that culture: by reading its literature and talking with its people.

I am not at all arguing for some sort of absolute relativism. That's just stupid. What I am arguing is that you cannot understand the whole of the universal truth that a Frenchman is communicating until you learn the French in which he is trying to communicate it. And you can't learn French by studying linguistics. You have to read and speak French. It's the same, analogously, with the traditions of justice within different cultures.

You should be a lot more worried. I've read only a few of her rulings, but this comment is thus far indicative of her lack of logic and coherence. How can a white male have the "same experience" as a Latina woman? So what sense does it make to claim that a wise Latina woman would make a better decision than a white male with the "same experiences"? From what I've seen so far, Sotomayor's intellect is much like Obama's -- a mile wide and a centimeter deep.

As for empathy -- that's just an excuse for doing as you want instead of following the law.

"justice is not something mechanical, a result that can be obtained by feeding facts into a program, and having a computer spit out the "correct" answer. Rather, it requires wisdom, and its application."

Good on you, Rod, for coming to this conclusion.

Reminds me of a dialogue between the Lord and Solomon, recorded in chapter 3 of 1 Kings:

7 And now, O LORD my God, thou hast made thy servant king instead of David my father: and I am but a little child: I know not how to go out or come in.

8 And thy servant is in the midst of thy people which thou hast chosen, a great people, that cannot be numbered nor counted for multitude.

9 Give therefore thy servant an understanding heart to judge thy people, that I may discern between good and bad: for who is able to judge this thy so great a people?

10 And the speech pleased the LORD, that Solomon had asked this thing.

Solomon is specifically talking about his role as a judge, as the narrative moves immediately to the case of Solomon threatening to divide the baby in two as an example of how the Lord granted Solomon this gift.

If a judge having "an understanding heart" pleases the Lord, I reckon it ought to please those of us who believe in Him.

Given the logic that her "richness of experience" and latina heritage will serve us so well, and we can depend on her to make fantastic decisions, it sounds like there is no reason to ever appoint another non female non latina jusge in the future. At the very least this should signal the end of the unfeeling white male judge.

What gob-spittle this is.

A judge's job is to follow the law, not to do justice or be wise or do good. Only the written law has quiddity precisely precisely BECAUSE other concepts -- "just, wise or good" -- are not shared, and therefore ad-hoc, standardless, personalist and, in the end, a mere expression of power.

I observe that you are not a lawyer.

If you think "the law" is as easily identified as all that, you would be miserable in law school, let alone in the practice of law. Of course, you'd never get to the practice of law, because you'd flunk out of law school, and about the bar exam the less said the better.

Oh ... and the fact that controlling law, determining jurisdiction and standing, and applying the law to a given case is not automatic is no reason whatsoever to give legal quiddity either to identity politics or to "empathy."

Ah, Victor Morton, I apologize. I thought that you weren't aware of the position you were taking, but I see you are. I think we have a much deeper disagreement, then. If I am not mistaken, you are taking Oliver Wendell Holmes's position (at least as I understood from this First Things article by Phillip E. Johnson) that the purpose of the law is to provide nothing more than a reliable predictor of what the state will do to you if you do x.

A clarification. You seem to be under the impression that my arguments imply that the concepts "'just, wise or good' -- are not shared, and therefore ad-hoc, standardless, personalist and, in the end, a mere expression of power." While this may be your postition, it is not mine. These are not standardless or, in the end, mere expressions of power, but rather are terms that express or describe the reality of the relationships between men. Now, the less you know of any particular relationship, the less you will be able to know what is the justice, wisdom, or goodness of that relationship, but that does not mean, however, that the justice, wisdom, or goodness of that relationship is essentially standardless. There is a real structure in the relationships between two persons that is objective of their "will to power."

But I see (or think I see) that your position is an attempt to keep people from killing each other in a world where other people are to them nothing more than any other natural phenomena, with behavior patterns to be deduced and future operations predicted so that you may be able to stand to one side when the storm blows, the lightning flashes, or the axe swings. I hope I don't offend if I say that this seems to me a horrible, solipsistic world that does not begin to approximate even one tenth of one percent of the beauty and justice that inheres within the weakest friendship.

AAAAAGHHHHH.

This ...
This will necessarily be at least somewhat perfect ...
... should read ...
This will necessarily be at least somewhat IMperfect ...

Angela: "chitterlings-or-chitlings-or-chitlins: the intestines of hogs esp. as prepared for food." Meriam-Webster dictionary.

I never claimed to be oh so smart and have several times admitted to that here. See the first sentence in the above post. I simply find the topics on here much more interesting than those on "Soap Opera Fan Site" or "Perez Hilton".

I am such a mongrel that I count my nationality as "American".

And you don't know me or my mother.

Rod,

You are to be commended for displaying this level of honesty.

Not only did you publicly admit you were wrong, but you did your homework even when the answer might not have been the one you wanted.

It would have been easy to ride on the bandwagon like everyone else who is either willfully ignorant of the context of her quote or worse, is deliberately misrepresenting her.

You go in my book as a good guy.

This is a really stupid post, Sir. A judge is supposed to rule according to the LAW. If empathy shows the law to be wrong, it is up to legislators to provide a remedy--by changing the law. Judges rule, but they do not (or should not) RULE--if you take my meaning. Empathy is a function of subjectivity, which the law is intended to avoid. Judge (not yet, and hopefully never, Justice) Sotomayor, thank you very much, had precious little empathy to offer Mr. Ricci in the recent case. Her empathy was reserved for those who had failed the requisite examination, and her ruling ignored the law. You, Mr. Crunchy Con, would like now to crunch on the Law, chew it up for breakfast and spit it out, and make it a matter of your, or her, or someone's--anyone's--preference. What happens, then, to my preference, or that of anyone with whom your favored judge might disagree? Where's to be the remedy for that, pray tell?

Pfui. You would be merely tiresome were you not so subversive of the rule of Law (which is, by-the-by, to be the rule of Law and not of Men, in its full formulation).

Congratulations on your re-analysis. I am not a conservative or a Liberal, but I am a Latino, and a fair skinned one at that. I am also a lawyer who went to law school in New York.

I think her speech shows she will be a good judge. In fact, the only thing that still rubs me wrong, a comment very common among New York Latinos, is her describing herself as a "woman of color". Granted, Latin America is heavily mixed. Puerto Rico is no exception and most Puerto Ricans have some level of African and Native American in them, but so do many Anglo Americans. But the divisiveness and discrimination of the past has led to a Nuyorican identity that thinks of itself as being "of color", in juxtaposition to being "White". Yet, clearly, looking at her parents, she is what in Puerto Rico one would call a White Puerto Rican. If she had been Italian or Romanian, or many East European Europeans, and with those exact same features, she would have been another White American. In fact many Latinos who have gone to the Midwest have had their kids fully integrate. They are as Latino as an Italian American is Italian, or an Irish American is Irish.

But in a city that has some of the most segregated Burroughs, and right next to Log Island that has the most segregated county in the Nation, people are forced to pick sides. As I said, Puerto Rico is a mixed country. You see Black looking, White looking, Native looking, Mixed looking Puerto Ricans all over the place. But the saying goes, "And your grandmother, where is she at?". In other words, don't act based on some phenotype, because you probably had some ancestor that looked like that.

When a Puerto Rican is raised in New York (and most Latinos, for that matter), they do not see color because of their country of origin. In fact, they tend to side with minorities, and see themselves as ethnic minorities, because even if they may look White (I look as Nordic as they come). They, or I should say we, have family members and/or friends from the home country that would not pass the standards of Whiteness of this country. And their discrimination, is felt by all of us.

I highly doubt Justice Sotomayor is biased against White males. Her father was a White male. A Latino White male. But she does realize that a large proportion of American White males, in contrast to many Latino White males (excluding the elites of many countries that also segregate themselves), have lived in fairly secluded environments as far as interaction and close friendship with people that may not look like them.

The law is about being impartial, but it is also about understanding mitigating circumstances. A key factor in many decisions is Mens Rea. Mind Set, Intention. We hold people to standards where we judge them by what the average person would do. But if we have never lived circumstances similar to that of the person being judged, how could we understand what an average person would think or do, if placed in those situations? I disagree that Justice Sotomayor is a Woman of Color as she is clearly a White Latina. But she is of a culture that is fully embracing of all members of its society, regardless of looks, and that is very cognizant of the struggles of many Latinos that do not fit the stereotypes of what a White American would look like. She would have an understanding of what any person who was not mainstream American might go through as far as thought processes, social pressures, etc. Be he Middle Eastern, Latino, East European with a heavy accent, or even a poor Appalachian kid who doesn't fit in. That sense of empathy, of being able to put yourself in one's shoes, is not affecting the impartiality of the law. But it does allow for the law to be impartial in contexts where an upper class person would not understand the forces at play. In this sense, a person from humble background, who has struggled with discrimination, even if he was a White male, would be able to better understand. But, in my experience, most White male lawyers do not come from these backgrounds that would make them that empathic. Of course I went to law school in Long Island.

Careful Ron you are starting to sound a bit too reasonable and intellectually curious. Keep this up and Rush et al along with the RedState and Freeper crowd are going to start calling you a RHINO and demanding you get out of their ever shrinking tent.

Ron, I read her full speech the way you did. She's no racist. Puhleeeeeeeeez!

In fact, she emphasizes that she (as a minority/woman of color) needs to make sure that her gut experiences don't unduly influence her legal decisions. As should EVERY jurist, including caucasians who grew up in the suburbs or NOT. DUH. Why is this controversial?

Oh, I forgot, cause she's nominated by a Dem. I get it now.

Unfortunately, your post is not what what "THEY" want to hear. Get ready for the blowback.

The allegations that Sotomayor is racist distract from a more important fact evidenced by this speech. This speech displays a level of intellect that is obviously nowhere comparable to that of a Scalia or a Roberts. Since she clearly doesn't have the intellectual firepower one normally associates with a Supreme Court justice, it is clear that Obama's decision to nominate her was primarily based on other factors, her race, gender and underprivileged upbringing.

I don't think that Lester read the speech accurately. As I understood it, in that section, Sotomayor was talking about the fact that it was important to have women and minorities represented in law and politics. She was talking about the passage of laws affecting women and minorities- and saying that, when it came to such issues, she hoped that a wise latina (ie- minority woman) would have better insight into those issues than a white male, who didn't have the same experiences. That makes a lot of sense.

Thanks very much for posting the link to that speech. It was refreshing to read the source text and judge for myself, rather than just relying on rhetoric.

Rod it is so refreshing to see a person on either side of the political line being fair and impartial. Thank you for that. I don't even believe many people have tried to read her entire speech. Ross is answering very biased as I would expect from many people-you can tell that by which justices he sights! I have numerous decisions made by Scalia which are controversial and even seem a bit dim-witted at times! The fact is we are all human beings and to pretend like we can get passed that is naive and idealistic. We can try and we should strive for impartiality but complete impartiality I agree with Sotomayor is not really possible. To believe that you can is also very much part of your upbringing because you are assuming white males are better equipped or more intelligent than minorites because if you ask women and minorities if their race and gender effected their life and the way they see things they will almost always say yes (something Sotomayor also makes note of). This is like saying your religious upbringing doesn't effect your politics. That's foolish. I'm a philosopher entering law school and I'm lad we get to actually discuss these issues not naively assume anything. Neutrality is what we strive for but I don't think we've found it in any supreme court Justice yet.