There are two issues here. On the one hand, as you say, who could be against empathy? If we understand it as the ability to understand the psychology of people other than yourself, this seems like an obviously useful skill in understanding the harm involved in different policies or laws. However, Ginsburg is not really demonstrating empathy in understanding this harm in the case you cite. After all, she herself was in that situation at one point. What she is demonstrating is a range of experience lacking in the other judges. Most of the rest of your post focuses on diversity of experience, not empathy. And that would seem like a valuable thing to include on the Court, but it is not the resulting of picking justices with more empathy (although it would function to increase the ability of the Court as a whole to empathize).

However, there is still a sense in which we can describe empathy as a qualification for superior judging. In the case of strip-searching the 13 year old, it is possible to be completely empathetic and still rule against her. However, and I take it this was Ginsberg's criticism, if you rule against her without understanding the psychological harm or trauma involved, in other words, were not appropriately empathetic, then your decision would be missing information that is relevant. That quality of empathy is (I assume) what Obama is referring to as a quality he is looking for in his nominee.
 

This focus on empathy is stupid. Obama said this:

"Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."
While he said that empathy is essential, there is no reason to focus on that single word more than the rest of those two paragraphs. What has happened here is right wing members of congress along with the conservative members of the media got together to create a controversy where there was none. And it worked as we now have otherwise thoughtful people taking their complaints seriously. Kind of sad, really.
 

The ability to empathize need not depend upon one's having the same experiences as the litigant. Liberals tend to empathize with victims of authority, and conservatives tend to empathize with people in authority. Thus, a liberal need not have been a 13-year-old girl to empathize with the litigant in this case, and you can be sure that Scalia, Thomas, Roberts, and Alito will empathize with the school principal even if they never were one themselves.
 

"Liberals tend to empathize with victims of authority, and conservatives tend to empathize with people in authority."That depends very much on who the victims are, and who the authority is. I've never noticed that liberals had much sympathy for the victims of the BATF, or conservatives much sympathy for that agency.
 

Reece:

Since we are talking about it, though, do you agree that empathy alone is not a plan of action?
 

Obama: I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.

These are fine qualities in an elected legislator tasked with making just law, but dangerous qualities in an unaccountable magistrate relied upon to neutrally apply the law without favor.

Anyone who believes in the rule of law, not just conservatives, should be aghast at this transparent attempt to tilt the scales of justice.
 

This comment has been removed by the author.
 

Our resident LLB* with this:

"Anyone who believes in the rule of law, not just conservatives, should be aghast at this transparent attempt to tilt the scales of justice."

neglects to mention how the tilting of the present scales of justice came about over the past several decades that gave us Bush v. Gore and eight years of we all know what that has been dumped on Pres. Obama.

And to what extent have Scalia, Thomas, Roberts and Alito demonstrated that they " ... neutrally apply the law without favor"?

*Little Lisa's bro
 

Today's LATimes:

"OPINION
Earl Warren, a justice with empathy
The Warren court drew upon the singular character of its chief to craft a remarkable body of work.
By Jim Newton
May 24, 2009"

Amen.
 

I wrote: "Liberals tend to empathize with victims of authority, and conservatives tend to empathize with people in authority." Brett replied: "That depends very much on who the victims are, and who the authority is. I've never noticed that liberals had much sympathy for the victims of the BATF, or conservatives much sympathy for that agency."

Is Brett accurate? If so, has he merely found an exception to the rule I stated, or has he refuted it? I'll take these questions in turn.

Whether Brett is accurate depends upon whether those whom BATF prosecutes should be viewed as "victims." Liberals do not empathize with someone merely because he is prosecuted for a crime he committed, unless it is a victimless crime, such as the possession or distribution of drugs. If he has committed a crime with a victim, then liberals will empathize with him only if the judicial system treats him unfairly, as if it imposes an excessive sentence on him. Thus, if liberals do not empathize with those prosecuted by BATF, it may be because those prosecuted by BATF have committed crimes with victims and gotten what they deserve, or because liberals tend to be ignorant about the doings of BATF (that is my situation).

If those prosecuted by BATF truly are victims, then I see the fact that liberals do not empathize with them as merely an exception to the general rule I posited. To the extent that those whom BATF prosecutes are prosecuted for gun crimes, then the explanation for the exception may be that liberals tend not to have sympathy for guns and their use. I, for example, oppose hunting.
 

Henry? Thanks for confirming your lack of empathy for people who are just exercising a basic civil liberty in the face of a government that wants to quash it.

OF COURSE liberals are not going to say to gun owners, "You're victims of government oppression, and I'm glad you are!". But instead deny their victimhood.

That, after all, is how you maintain your self image as the champion of the downtrodden: By insisting that anyone you don't want to champion ISN'T downtrodden.
 

Brett, perhaps I didn't express myself clearly. I did not mean to deny the victimhood of gun owners; I meant to express ignorance on the subject. Perhaps you could enlighten us instead of (in your final paragraph) imputing a bad motivation to those who do not already share your view.
 

I've never noticed that liberals had much sympathy for the victims of the BATF, or conservatives much sympathy for that agency.

C'mon, Brett. You're stuck in your pre-conceived ideas. If nothing else, you don't remember a discussion you and I had some time ago about Waco, where I flatly stated that what happened there was a massacre and an atrocity. (I relied for my information about the incident on the documentary film, Waco: Rules of Engagement, which I highly recommend to one and all.)

However, the film strongly suggests that the crimes committed took place at the mid- and lower levels of the BATF/FBI, and that is an important detail to keep in mind.
 

"most failures of empathy are likely to be rooted in different values, not judicial abilities or inabilities to see the world from the perspective of other people."

To suggest that a failure of empathy is rooted in different values seems to suggest that individual(s) are uniformly limited in their ability to empathize with other who hold different values. I have a hard time with that conclusion and would suggest that people do have different empathy talents.

Further, to the extent that the supreme court views the constitution as a document with out any strict original meaning but as a document to be construed in conjunction with the different evolutions of societal values, I think it is important to have justices that have a higher empathy talent.
 

> most failures of empathy are likely to be rooted in different values, not judicial abilities or inabilities to see the world from the perspective of other people.

If you're bad at empathizing with people with different values than yourself, then you're just plain bad at empathizing. Seeing things from the perspective of people just like yourself is easy.
 

It is fictional to make empathy out to be a 'liberal' thing. Since Obama listed it as one of many components, it seems the noise is more about the concern among certain conservatives.

I find it ironical that the same people who are likely to defend "empathy" (as Dahlia Lithwick and others have noted, conservatives defend it too ... sometimes) ALSO are out there defending the rights of Nazi members (recall Skokie?), alleged Al Quida members, and various other groups many hate.

[Someone reminds that many on the left were disgusted at Waco. I might add that Gore Vidal spoke out for Tim McVeigh.]

Likewise, in a recent interview on C-SPAN (see also a recent op-ed by Professor Kmiec), Obama said that he is for empathy for different sides. That is, including for business owners or the like. The idea he is only for selective empathy, the guy who goes on and on about "one America," is wrong.

Finally, why do you think that judges aren't aware of the needs for administrators? Did you read the opinions upholding drug testing for students? Souter if anything sounded pro-school in the oral arguments in the strip search case.

I think judges as a whole are more attuned to the needs of authority figures than children, even if they once were children decades back.
 

Henry, perhaps I've spent too much time at lefty sites where the suggestion that gun ownership really IS a right meets with palpable contempt even after Heller.

The issues are:

1. Most of the laws the BATF enforces with respect to firearms are 'reasonable' only if you don't accept that gun ownership is a civil liberty, and wouldn't pass even rational basis scrutiny if you take the right seriously.

For instance, you have to pass a background check, pay a $200 'transfer tax', and get local police approval, to own anything that would reduce the noise of a firearm below the level that causes acute hearing damage. (No, 'silencers' don't work like in the movies, they just cut the noise down enough to let you skip hearing protection.) A fine for owning safety features?

Or the regulation change during the Clinton administration, requiring gun dealers to have a place of business separate from their home: Had no other purpose than to put most of the nation's
part-time gun dealers out of business.

The FCC could impose a regulation outlawing running book stores out of your home, and enforce it with utter impartiality and politeness, and the people whose stores were shut down would still be "victims" in my book.

2. But the BATF has a long standing record of abusive enforcement. Such as having a policy of committing perjury during prosecutions.

3. The BATF also has a long history of institutional racism. Revelations of which reportedly led to the need for positive publicity which produced Waco...

Essentially, what we have in the case of the BATF, and it's been an ongoing problem, is a case of institutional capture by the opponents of the very liberty the BATF is charged with regulating.
 

Shag:

I believe your two posts inadvertently comparing the work of the non-empathetic Scalia, Thomas, Roberts and Alito with that of the empathetic Earl Warren illustrates my point about tilting the scales of justice perfectly. I could not have done better myself.
 

Empathy as I understand it is the ability to see the world from another person's point of view. It requires putting one’s ego aside for a moment, and putting oneself in another person’s shoes. This is especially important in cases where unorthodox or uncommon views are being represented.

Brown v. the Board of Education is perhaps one case where an empathetic advocate in Thurgood Marshall did an excellent job of communicating to the court the inequality inherent in a "separate but equal" standard. Even though the members of the Warren court did not share Marshall's experience, Marshall was able to communicate that experience in a way that helped the Justices’ see his client’s point of view in relation to the law.

A person might say: “A judge is not an advocate” – of course this is true in a narrow sense. In a real sense though, the Justice is supposed to be an advocate for the public interest. That means the Justice must take into consideration a wider range of views than he might as an advocate for one side in a given case.

In the case of the KKK member, I think even then, some understanding is important. Understanding is not synonymous with endorsing another person’s views. A person may understand another’s point of view and still understand the limitations in that point of view.

Even in terms of our own experience, we may have an understanding of why we did or believed things in the past – that doesn’t mean that we still do those things or believe the same ideas that we once did.

In reference to the case of the 13 year old girl, while the Justices may not have the experience of being an educator -- they do have the experience of being an authority figure.

Ruling in their capacity as judges, the Justices’ role, and their power-relationship in reference to the litigants are more akin to that of an administrator performing a strip search, than that of a 13-year-old who has just been subjected to a strip search. I am doubtful that Scalia et al will have much sympathy for Savanna Redding’s point of view.

On the other hand, if Scalia et al were subjected to a strip search along similar lines – even at their current age – I am absolutely certain that they would be the ones screaming the loudest about the outrageous injustice that had been done to them. Perhaps this is because wisdom cannot exist without some degree of empathy. Hopefully Scalia et al prove me wrong.
 

The 13-year-old girl was strip-searched for suspicion of possessing ibuprofen. As a lawyer, I appreciate that the fact that the search was for ibuprofen rather than, say, explosives, is not legally relevant. And so much the worse for the law, I think. The ban on ibuprofen is sick -- it is a symptom of a severe sickness in American society -- and that ought somehow to be taken into account. I can't say how, as I am not making a legal argument, but am merely reminding people of an important aspect of this case that, sadly, is not legally relevant.
 

What am I saying? The fact that the search was for ibuprofen is legally relevant. In deciding whether the search was reasonable under the Fourth Amendment, the justices will balance the government's interest against the girl's, and the government surely has little if any legitimate interest here.
 

President Obama's discussion of what he looks for in a judicial nominee during Friday's C-SPAN interview:

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

In short, Mr. Obama wants judges who have no problem rewriting the law in front of them to achieve Mr. Obama's desired outcomes.

Wonderful.
 

Bart, Obama's oral statement that you bolded was inelegantly expressed, and, if read literally, could be taken as you have taken it. But if one reads it in the context of his saying that the justice in the Ledbetter case misinterpreted the law, then I think that one should conclude that he meant to say that for a judge to apply the law in front of him without taking into account its practical effect is to misinterpret it. Law, in other words, should not be applied in a vacuum. If the Civil Rights Act had clearly indicated that the statute of limitations starts to run when the discrimination begins, regardless of the time of discovery, then I doubt that Obama would claim that a justice should interpret it otherwise.
 

Our resident LLB* must have had experience working in a meat market:
'
" . . . my point about tilting the scales of justice perfectly. I could not have done better myself."

And how are the scales of justice balanced at this point in time? If Scalia, Thomas, Roberts and Alito were "clowned" [pluperfect of "cloned"] to constitute 8/9ths of SCOTUS the scales of justice would be in balance? Now that would be pathetic.

But, pray tell, do LLB*'s DUI clients realize how unempathetic he may be in his representation of them? Of course, to have empathy, one needs a personality. Perhaps our resident LLB* could use a transplant as he joins the lion, tinman and scarecrow down the "yellow brick road" in search of one.

*Little Lisa's bro
 

Is this:

"Empathy is hot among liberals."

Mark's way of assuring LLB* and his ilk that he, Mark, is not a liberal? Is Mark suggesting that the admitted liberal bloggers of Balkinization are hot for empathy as it relates to a replacement for Souter? Or is Mark fanning the embers (clearly out of context) to excite our resident LLB* and his cohorts with their thumbs on the scale of justice? Just curious as Mark usually doesn't open for comments. Maybe it's closet departure time for Mark.
 

OOPS! I left out the tail of the preceding comment:

*Little Lisa's bro
 

Did you read the oral argument of the strip-search case? The justices were rubbing their thighs with glee over the idea of a teenage girl being made to strip to her panties. It was probably the most revolting display from the bench in the history of the court. Lack of empathy? Those dirty old men getting a thrill imagining the humiliation of that child. If there had been two more women on the bench they would have behaved themselves. That's why you need diversity on the bench. Once you have a Jew or two on the bench, the anti-Semites need to behave; once you have some African-American, the racists have to behave; and once you have a couple of women - and this is probably the hardest issue - the dirty old pigs will have to keep it in their pants in public.
 

It seems those robes may be very accommodating:

" . . . the dirty old pigs will have to keep it in their pants in public."
 

Henry:

It is not a judge's prerogative to rewrite the law because he or she does not like the practical outcome of a statute. In a Ledbetter situation, the judge holds that the law says what it says and invites the real legislature to correct its perceived error.
 

It is not a judge's prerogative to rewrite the law because he or she does not like the practical outcome of a statute.I agree. In fact, so does everyone else; this is a straw man. (I know: the statement of Obama's that you bolded appears to disagree, but I've explained why I do not believe that it does.)

In a Ledbetter situation, the judge holds that the law says what it says and invites the real legislature to correct its perceived error.If a question of statutory interpretation makes it all the way to the Supreme Court, then the law does not "say what it says." It must be interpreted and taking account of the practical effect of interpreting the statute one way or another is a relevant tool in interpreting it.
 

You know, Bart, there is a difference between embracing a political view - even an ideology - and just being a partisan hack.
 

To counter our resident LLB*, I am copying here one of my comments at Sandy's 5/21/09 post "Newsnotes from our 'little laboratories of experimentation":

"This is somewhat off topic, perhaps quite a bit, but Sandy's desire for a Constitutional Convention came to mind as I read John Gardner's 'Can There Be a Written Constitution?' available via SSRN at:

http://ssrn.com/abstract=1401244

"Beginning at page 26 he discussed problems or obstacles in calling an Article V Convention. The entire article has a bit of whimsy in discussing the 'unwritten' British Constitution and the U.S. Constitution, including the selection of a SCOTUS nominee (that is discussed by other posts at this Blog without comments because of Justice Souter's resignation). At page 36:

'The only possible reason for choosing a textualist Supreme Court nominee over a purposivist, or an originalist-texualist over a strict-constructionist-textualist, or a original-intent-originalist, or indeed a baggist over a raggist, is that each of them, or at any rate each of them in combination with some like-kinded judges, will have the power to change the law of the constitution by giving the constitution a meaning different from the one that it would have under the authority of a judge or a combination of judges from some rival camp.'

"Then, at page 37:

'And since judges are fallible human beings like the rest of us it had to be that way. So even if one says, crazily, that judicial law-making is always erroneous, one cannot avoid reaching the same result: Any Constitution that provides for authoritative adjudications regarding its own application cannot but be to some extent a living constitution, i.e. cannot but contain less law at its inception than it comes to contain later.'"
# posted by Shag from Brookline : 1:53 PM

Perhaps our resident LLB* falls into the infallible category, at least in his own unempathetic mind. At least the lion, the scarecrow and the tinman recognize what they lack as they travel the yellow brick road.

*Little Lisa's bro
 

For all you early risers, check out Stanley Fish's "Think Again" column in today's NYTimes Internet version titled "Empathy and the Law." I have to reread this to make up my mind whether Stanley has come out of the water to join our resident LLB* on the yellow brick road seeking help. Stanley weaves in Brown v. Board of Education. Perhaps Jack will have a comment, nay a post, on this.

*Little Lisa's bro
 

Charles,

That's not really a good question since it is clear that empathy alone is not the plan of action. Your question is as if someone says, I am going to do X by doing A, B, and C. And you respond by saying, "How will you ever achieve X if you only do B?"
 

I wonder how Mark might apply empathy to C.J. Taney in Dred Scott, or to the dissenting justices. Surely Taney had empathy for Sandford as the owner of property, which empathy also extended to slaveowners. Perhaps empathy is in the eye of the beholder. So I guess empathy can also be "hot" for non-liberals.
 

An additional thought on the question of empathy.

Obama's statement seems pretty clearly to be a rebuttal of Justice Robert's definition of what a Supreme Court judge is (e.g. merely an umpire).

Robert's description makes sense to me in the context of a trial judge -- e.g. the judge rules on procedural matters while the jury of peers is tasked with rendering the verdict of guilt or innocence (I would emphasize the idea that we have a jury of PEERS -- social equals; members of the community -- as part of the process of judgment).

In the case of an appellate judge, if we were simply dealing with a case of calling "balls and strikes" -- why would it be necessary to have more than one judge?

The last time I watched a baseball game I don't recall seeing 9 Umpires sitting behind home plate rendering a verdict on whether the ball crossed inside or outside of the strike zone.

If a judge sitting on the Supreme Court simply rules based on a clear set of procedures -- and doesn't look at issues from a broader context -- why do we have a Supreme Court composed of multiple Justices? If one point of view is sufficient to render justice, why does are system, by design, incorporate multiple points of view as part of its final judgment?
 

I must admit I'm at a loss as to how "Lisa's little brother" contributes any more to this discussion than "poopy face!" would.

At any rate, it seems to me that reasonable people can differ as to the extent to which reasonable people will find the Constitution ambiguous.

The problem with this post modernist approach to the law, is that once you've abandoned the notion of language as an effective means for communicating intended meanings, effective argumentation with you is impossible. What do pre-modernists, who view the very PURPOSE of language as being to communicate definite meanings, have to say to people who'll deny that what we day to them has any meaning beyond what THEY chose to attribute to it?

Living constitutionalism is just one symptom of a terribly corrosive view of language.
 

Jim, nominee Roberts' umpire metaphor was flagrantly dishonest and not worthy of a response. You don't need your "multiple justices" argument to see that; your "multiple justices" argument has the weakness that, even in a situation where a judge may simply rule based on a clear set of procedures, and needn't look at issues from a broader context, it may be that two (or nine) heads are better than one. We don't need to make any argument that judges must look at issues from a broader context; we need simply observe the fact that they do. As Susan Bandes post above this one makes clear, no "umpire" without empathy for both sides could fairly determine whether the government's interest in keeping ibuprofen out of the schools outweighs a 13-year-old girl's interest in not undergoing a possibly traumatic humiliation.
 

Jim makes this observation:

"Obama's statement seems pretty clearly to be a rebuttal of Justice Robert's definition of what a Supreme Court judge is (e.g. merely an umpire)."

Roberts' definition is weak. A baseball umpire has to make instant decisions (subject to the new MLB rule for a quick video review under limited circumstances that might take 5 minutes - Red Sox/Mets game last Saturday) as opposed to the appellate judge who comes in formal contact with a case long after the trial with its decision, including the passage of years, with the assistance of four clerks to review briefs submitted - 71 briefs in the Heller/District Second Amendment case, listening to orals, conferences and other "backroom" stuff, with a decision many weeks, months later that an appellate judge may agree with or disagree with. And Roberts thinks this is serving as an umpire in sports metaphor calling balls and strikes, you're out, you're safe? Weak definition, Mr. Roberts. How long might a Roberts game last?

Jim, thanks for raising this point.
 

Roberts thinks this is serving as an umpire in sports metaphor calling balls and strikes, you're out, you're safe?No, Roberts doesn't think that; he is too smart to think that. Roberts was offering the senators and the media a soundbite, because that's what they require. Senate confirmation hearings are a farce; they encourage and tolerate perjury (e.g. Rehnquist's regarding his Brown v. Board of Education memo; Thomas' regarding numerous matters). A New York Times op-ed recently proposed not allowing nominees to testify at their confirmation hearing, which was once the way it was done. That might help.
 

When I italicize a quotation with the HTML tags and then hit "enter" to skip a line, it comes out without a line skipped and without even a space between the italicized text and my comment after it. (See me posting immediately above this one.) Can someone please tell me what I'm doing wrong?
 

Henry said...

BD: In a Ledbetter situation, the judge holds that the law says what it says and invites the real legislature to correct its perceived error.

If a question of statutory interpretation makes it all the way to the Supreme Court, then the law does not "say what it says."

That depends if you had empathetic judges rewriting the law in the lower courts.

The result in the Ledbetter case was unfair from Ledbetter's viewpoint, but the statutory provision at issue was not difficult in the least to interpret: ""A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred."

The law plainly meant what it said. Under our system, it was up to Congress and not the judiciary to change the provision if they wanted a different result.
 

The result in the Ledbetter case was unfair from Ledbetter's viewpoint,Bart, can't you at least concede that it was unfair from anyone's viewpoint?

but the statutory provision at issue was not difficult in the least to interpret: "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred."I don't remember the case in detail, but wasn't there an argument whether "after the alleged employment practice occurred" could refer to its most recent occurrence, and not merely to its first occurrence? If so, then reasonable people could differ as to how to interpret the provision.
 

Henry,

For the paragraph break you want to insert a break tag.

e.g. < br >< i >quotation< /i>< /br >

I've inserted spaces in the brackets for the purposes of illustration. In using the paragraph break you'll want to delete the spaces.

In reference to Ledbetter, Ginsberg in her dissent highlights a couple issues with the majority opinion:

1. She asserts that the majority ignores relevant provisions of the law (e.g. the law states explicitly that a claim for pay discrimination can cover a two year period -- contra the majority which asserted that a new claim needed to be filed every 180 days).

2. There was a disagreement on the application of precedent. The majority stated that the pay discrimination was open and a discrete event (e.g. akin to the denial of a promotion or a firing). Ginsberg argued that pay discrimination was easily hidden and cumulative in its effect, so that the precedent cited by the majority was not applicable to a case involving pay discrimination. Ginsberg cites other relevant case law to the contrary.

i.e. Ginsberg seems to be saying that the conservative majority effectively re-wrote the Title VII legislation to achieve a desired outcome.

The majority narrowed the scope of the law, ignored explicit provisions in the Title VII Act; it ignored the stated justification for the law at the time of its enactment; and it ignored relevant case law while applying irrelevant case law in an effort to achieve a desired outcome.
 

I asked:

"Roberts thinks this is serving as an umpire in sports metaphor calling balls and strikes, you're out, you're safe?"

Henry's response:

"No, Roberts doesn't think that; he is too smart to think that."

I don't disagree with Henry. And the NYTimes oped referred to did make sense. But we should judge a judge by what s/he actually says and does, even as s/he avoids being pinned down on how s/he thinks, what s/he believes. This raises the matter of how effective is the Senate's advice and consent role if honesty and openness may not be the best policy to garner Senate approval?
 

Henry you can also create paragraphs by using a paragraph tag.

e.g. < p >< i >quotation< /i >< /p >

Once again, I've inserted spaces inside the brackets so that they appear in this comment. You'll want to delete the extra spaces inside the brackets when posting a comment.
 

Thanks for the info, Jim.
 

It isn't clear to me what post-modernist and pre-modernist embrace as relates to constitutional interpretatation, in particular originalism/textualism versus living constitutionalism. Perhaps some dates might be helpful. I took ConLaw in the fall of 1952. At that time originalism had not surfaced; I understand it did early in Pres. Reagan's first term with AG Ed Meese leading the way. I would not attempt to define originalism/textualism which has gone through and is still undergoing changes in academic circles. (My most recent SSRN download is "Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction" by John O. McGinnis & Michael B. Rappaport. I recently finished their earlier - also in 2009 - "Reconciling Originalism and Precedent.") Nor would I attempt to define living constitutionalism which has also gone through changes recently, including Jack Balkin's reconciliation with a form of originalism. But it is clear to me that living constitutionalism is not just making things up.

I've been influenced by legal hermeneutics in constitutional interpretation, which does not ignore language and its meaning but does not lock itself into a much earlier date. The Founding Fathers were greatly influenced by the writings of many British philosophers and political scientists, going back a number of years. Surely the Founding Fathers in being influenced did not limit their understanding of such writings by exploring or committing to understanding or meaning of their writings back when originally published. Surely subsequent events and experiences in parsing such writings influenced the Founding Fathers. If that be the case, then perhaps events and experiences subsequent to the Founding Fathers' writings could play a part in interpreting their writings.

The battle goes on in the search for the Holy Grail of constitutional interpretation. Perhaps most of the posters and commenters at this Blog were introduced to originalism when they studied ConLaw. The history of constitutional interpretation has varied over the past 200+ years and remains unresolved fully. So what is pre-modernist and what is post-modernist on this subject?

I continue to think that John Gardner makes an interesting point with:

"'And since judges are fallible human beings like the rest of us it had to be that way. So even if one says, crazily, that judicial law-making is always erroneous, one cannot avoid reaching the same result: Any Constitution that provides for authoritative adjudications regarding its own application cannot but be to some extent a living constitution, i.e. cannot but contain less law at its inception than it comes to contain later.'"

I continue to be amazed that 71 briefs were filed with the Heller/District of Columbia Second Amendment case. And supposedly the majority and the minority claimed to rely upon originalism with different results.
 

Susan Bandas throws like a girl.
 

"And supposedly the majority and the minority claimed to rely upon originalism with different results."Neither the majority nor the minority in that case covered themselves with glory. I still have trouble believing that Scalia got who'd won at the circuit court level in Miller backwards. Don't they have their interns fact check the opinions?

But it's quite understandable that both sides felt they had to claim to be originalists. It was a case with high public salience, and the consequences of being seen to deliberately trash such a widely treasured amendment were quite possibly revolutionary.

But trash it both sides did, though the minority would have done a more thorough job if they'd had their way.
 

Shag:

You make a good point that granting an unelected and unaccountable judge carte blanche to interpret the law any way he or she pleases is an invitation to judicial legislation.

Power corrupts, absolute power corrupts absolutely.

Perhaps it is time to reconsider the old concept that the elected branches should have co-equal powers to interpret the Constitution.

Obviously, the courts are the branch set up to review cases and controversies. However, what if we allow the elected branches the power to reverse unconstitutionally decided cases along the basic lines of impeachment.

For example, the Supremes in the 5-4 Kelo decision completely disregard the public interest limitation on eminent domain. The House would enact a resolution by a 3/5ths majority providing the House's interpretation of the Constitution reinstating the public interest requirement and an opinion reversing Kelo. The resolution then needs a 3/5ths majority of the Senate. Finally, the President must sign it. Such a resolution reverses Kelo and may not be withdrawn from by the judiciary at some future date.

Such reversals are likely to be rare, but the very prospect of accountability by the elected branches is likely to check any inclinations toward unconstitutional empathy by the judiciary.
 

"Perhaps it is time to reconsider the old concept that the elected branches should have co-equal powers to interpret the Constitution."

Judicial review is not spelled out in the Constitution. But what is the alternative? If a Constitutional Convention were called, perhaps there would be considered a "codification" of judicial review. But judicial review does not mean judicial supremacy. So such a Convention might have to adddress the latter, which might bog down the Convention. While there have been strong arguments supporting judical review, these fail to support judicial supremacy.

I may comment on this further later today after I read "The Modernizing Mission of Judical Review" by David A. Strauss and the response of Jonathan F. Mitchell: "Modernization, Moderation, and Political Minorities: A Response to Professor Strauss." Larry Solum at his Legal Theory has a post on these articles. (I assume that most visitors to this Blog check in regularly with the Legal Theory Blog and the Legal History Blog so that they may readily link to these articles. I still have not conquered linkage skills. It's tough teaching an old dog new tricks.)

In the meantime, perhaps some of you may comment further on judicial supremacy, which I don't think can be supported by originalism/textualism - considering the oaths required of all three branches.
 

I noted Jack Balkin's post of today -
"The Return of Liberal Constitutionalis" - after the comment I put up. While Jack does not refer to "judicial supremacy" he does say:

"Courts have neither the first word nor the last word on the meaning of the Constitution. Rather, their interpretations reflect the values of their time, including the work of political and social movements that make claims on the Constitution and shape constitutional culture. In addition, the decisions of courts often give rise to protest and counter-mobilizations that eventually shape the way that doctrine develops. Because in our system of government ordinary citizens have both the right and the ability to talk back to courts, the development of constitutional law maintains its democratic legitimacy."
 

Shag from Brookline said...

I noted Jack Balkin's post of today -
"The Return of Liberal Constitutionalis" - after the comment I put up. While Jack does not refer to "judicial supremacy" he does say:

"Courts have neither the first word nor the last word on the meaning of the Constitution. Rather, their interpretations reflect the values of their time, including the work of political and social movements that make claims on the Constitution and shape constitutional culture."

Hardly. It would be far more accurate to argue that Court rewriting of the Constitution reflects the policy preferences of the segment of the legal profession that believes Courts have the power to rewrite the Constitution, including Jack. However, these policy preferences values rarely reflect the values of a majority of the citizenry and are often contrary to the laws enacted by the People's representatives. See same sex marriage.

In addition, the decisions of courts often give rise to protest and counter-mobilizations that eventually shape the way that doctrine develops. Because in our system of government ordinary citizens have both the right and the ability to talk back to courts, the development of constitutional law maintains its democratic legitimacy."

Please. The fact that the peasants can protest hardly means that the cases rewriting the Constitution have democratic legitimacy.

One can only hope that Supreme Court nominee apparent Sotomayer will be honest enough to admit that she will seek to rewrite the Constitution rather than umpire cases. Then, the voters can let the Senate know before the damage is done what they think of allowing Sotomayer rather than our elected representatives determine the legal values for our generation.
 

Apparetly our resident LLB* prefers Roberts' attempt at being a jock with his misplaced and deceptive umpire metaphor:


"One can only hope that Supreme Court nominee apparent Sotomayer will be honest enough to admit that she will seek to rewrite the Constitution rather than umpire cases."

Roberts as an umpire would be putting on and taking off his glasses, taking many months to make a decision on events occuring much earlier. Roberts is as ideologically driven as any one else on SCOTUS having so avidly followed the yellow brick road laid out by conservatives. Was Roberts "honest" with his umpire metaphor or merely evasive? By his performance, definitely the latter.

As for Sotomayer, let's await the hearings instead of merely weakly attempting preemptive tactics. Perhaps our resident LLB*'s jock-side envies her ethnicity, her gender?

*Little Lisa's bro
 

Imagine for a moment that Judge Roberts had told the Senate during his confirmation hearing that:

“I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina female who hasn’t lived that life."

With this errant racist and sexist point of view, does anyone here believe that this alternative reality Judge Roberts would qualified to be a judge nevertheless a justice on the Supreme Court? I sure the hell do not.

Thankfully, Judge Roberts said no such thing. However, Judge Sotomayer has:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

Now, perhaps, Sotomayor's racist and sexist belief that Latina females like herself can decide cases better than some white male like Judge Roberts is simply distasteful self promotion and does not extend to her court rulings involving inferior white men...or does it?

Judge Sotomayor's ruling (or lack thereof) in Ricci v. DeStefano may be instructive in this regard. Ricci involved a group of white male firefighters who allege they were denied the chance for promotion when the department discarded the promotion exam they took because no blacks passed it. The department claimed it was not denying the firefighter's a chance at promotion because of their race. Despite the fact that the evidence was mixed and conflicting, the trial court granted summary judgment to the department.

On appeal to Sotomayor's Circuit panel, this nominee for the Supreme court could not be bothered with writing an opinion giving her reasons for affirming summary judgment against the white male firefighters, even though the complex facts and law of the case appeared to fascinate the justices of the Supreme Court in an unusually long oral argument. The panel dissent's take on the majority's cavalier dismissal of the firefighters' claim was absolutely scathing.

This all begs the question of whether Sotomayor simply lacked intellectual curiosity and/or was putting into practice the racism and sexism she baldly conveyed in her law school remarks above. Neither alternative argues for her qualifications to sit on the Supreme Court.
 

Our resident LLB* notes:

"Thankfully, Judge Roberts said no such thing."

Perhaps LLB* can't read Roberts' body language. Perhaps LLB*'s objections are to Sotomayer's ethnicity and gender plus her intellect.
 

OOPS! Forgot the tail on my last comment.

*Little Lisa's bro
 

It appears that the judicial empathy of a certain wise Latina woman is routinely reversed.

Reportedly, of the six majority Circuit opinions penned by Judge Sotomayor for which cert was granted, the Supremes reversed four. If Sotomayor's cursory ruling against the firefighters in Ricci is reversed as expected, her record will be 2-5 before the Supreme Court.
 

This comment has been removed by the author.
 

The comment above this one fails to take into account (1) that the Supreme Court reverses 61% of the cases it takes (since it tends to take cases whose result it dislikes), (2) that the Court did not grant certiorari to many of Sotomayor's decisions, perhaps because it found them unobjectionable, (3) that Supreme Court decisions should not be viewed as necessarily superior to lower-court decisions; a lower-court judge might even consider it a badge of honor to be reversed by a 5-4 decision with Roberts, Alito, Scalia, Thomas, and Kennedy in the majority
 

Henry:

I would be interested to see citations to the reversals to see the margins and reasoning.

To date, I have only identified the 8-0 reversal of Sotomayor's opinion in Merrill Lynch v. Dabit, where she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law.

Along the same lines, but not part of the reversal list, the Supremes unanimously rejected Sotomayor's reasoning in Knight v. Commissioner on the deductibility of certain trust fees, but upheld the result. That inferior white male, Chief Justice Roberts, noted that the "wise Latina woman's" reasoning "flies in the face of the statutory language."

Sotomayor has a very long judicial history. I have a feeling that cases like these may not be exceptional. I would be interested to see Sotomayor's rate of reversal by the Circuit when she sat as a district court judge.
 

Bart,

Before making a fool of yourself on this particular issue by regurgitating talking points in relation to Judge Sotomayor's comments from 2001, why don't you try reading the entire speech to understand what she was saying? Here's a hint: she's not racist and she's absolutely right.
 

mclamb6:

The meaning of Judge Sotomayor's comments is perfectly clear.

You are welcome to offer quotes from the rest of her speech in an attempt to explain how these comments are not errantly racist and sexist.
 

You are welcome to offer quotes from the rest of her speech in an attempt to explain how these comments are not errantly racist and sexist.

Translation: It is not in my interests to understand the full context, and anyway, I don't have to inform myself if I don't want to.

**Also, Bart, I think the word you were looking for was "arrant".
 

Dam Froomkin's White House Watch (WaPo) yesterday indeed provides many of the quotes that our resident LLB* avoids as once again LLB* shows his anglo-saxon side (whatever percentage that might be) in this age of Viagra's male enhancement in his focus on the ethnicity and gender of the candidate.

And once again Mattski strikes at our resident LLB*, this time with misuse of language. But to come to the defense of LLB* out of fairness (a liberal trait), my trusty dusty Webster's New World Dictionary defines "arrant" thusly:

"1. That is plainly such; out-and-out; notorious [an arrant fool] 2. obs. sp. of ERRANT (sense 1)"

that demonstrates LLB*'s obscure/obsolete side, although "arrant fool" is very close to the mark.

*Little Lisa's bro
 

What a surprise. No quotes demonstrating how the Sotomayor statement touting the superiority of wise Latina women like herself over white males is something other than racist and sexist nonsense.
 

President Obama has repeatedly stated that his top qualification in a judicial nominee is "empathy" and assures us that his first nominee to the Supreme Court, Judge Sonia Sotomayor, is empathy personified. However, Sotomayor's idea of empathy stinks of race and gender politics rather than impartial judging.

In 2001, Judge Sotomayor delivered a lecture at the University of California - Berkeley entitled "A Latina Judge's Voice" sponsored by the hispanic political action group, La Raza, where she embraced a race and gender based legal realism.

In the lecture, Sotomayor rejected the contention of Justice Sandra Day O'Connor that a "wise man" and a "wise woman" should necessarily reach the same verdict. Instead, Sotomayor views the judiciary as some sort of a race and gender based political spoils system, arguing: "There is a real and continuing need for Latino and Latina organizations and community groups" to promote "women and men of all colors in their pursuit of equality in the justice system." She further observed: ""Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

It is useful to contrast Judge Sotomayor's race and sex based legal realism with the oath she would take before taking the bench on the Supreme Court:

"I, Sonia Sotomayor, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God."

I can only presume that a wise Latina woman like Judge Sotomayor believes these words mean something completely different than their plain meaning to the rest of us.

If Sotomayor cannot comply with her oath, then she is unqualified to sit as a judge on the federal bench in any capacity.
 

Would I be quoting our resident LLB* out of context with his (not Sotomayer's) words:

"That inferior white male, Chief Justice Roberts, ...."

or his (not Sotomaye's) words:

" . . . the Sotomayor statement touting the superiority of wise Latina women like herself over white males ... "

to compare with the wisdom of our revered Founding Fathers textually displayed in the Constitution in touting the superiority of wise white males like themselves over women and negroes. Perhaps even our resident LLB* may have benefited from the wisdom of Latina women over the years. In righting the ship of discrimination, sometimes hyperbole is helpful. Consider the contributions of Justice Thomas as an African American, Justice O'Connor as a white woman discriminated against in her early legal career, Justice Scalia, with his Sicilian background against the anglo-saxon majority, etc. Balance, diversity, what's wrong with it? All white men in black robes (or in white robes for that matter) is passe. Get over it.

*Little Lisa's bro
 

Let's vary our resident LLB*'s words by substituting George W. Bush in evaluating his performance for the 8 years prior to 1/20/09:

"If Bush cannot comply with his oath, then he is unqualified to sit as President."

*Little Lisa's bro
 

Shag from Brookline said...

Perhaps even our resident LLB* may have benefited from the wisdom of Latina women over the years. In righting the ship of discrimination, sometimes hyperbole is helpful. Consider the contributions of Justice Thomas as an African American... The left considers Justice Thomas a race traitor for utterly rejecting Sotomayor's race and gender based politicization of the law.

Justice O'Connor as a white woman discriminated against in her early legal career...Did you read the Sotomayor speech where she expressly rejected the O'Connor view that women and men should arrive at the same legal holdings?

Justice Scalia, with his Sicilian background...Oh for heavens sake, Scalia does not go around like Sotomayor campaigning for more Italians on the bench because we paisans would come up with better legal rulings than white men. Indeed, I am fairly sure that Sotomayor would lump paisans in her group of inferior white men.

Scalia and Thomas arrive at the same positions by reading the law, not because of the shared melanin content of their skins. In stark contrast, Sotomayor is calling for ignoring the law in favor of advancing her personal race and gender politics. Because of this, she is unqualified to be a judge at any level of the state or federal courts.
 

I'm a bit baffled by the emphasis on a sentence spoken out of court by a nominee (and, arguably, taken out of context).

Is there any evidence, based on her legal rulings, that she applies racist thinking?

If such cannot be found, it appears that making her out to be a racist over a single remark is just an example of an obsessive-compulsive need to find fault.
 

Perhaps our resident LLB* is unfamiliar with Scalia's "Fat Tony" gestures. And why can't two women be in disagreement? Or does our resident LLB* (as a textualist) favor the lock-step approach of our revered white male Founding Fathers when it came to race and gender? And Clarence did benefit from affirmative action as an African-American, but is reluctant to pass this on any further, which may be a tad hypocritical after he got his.

Perhaps our resident LLB* reveals the basis for his animosity and resentment with this:

"Indeed, I am fairly sure that Sotomayor would lump paisans in her group of inferior white men."

Why she might include some anglo-saxons in that group.

Of course, our resident LLB* fails to indicate whether he may have benefited from the wisdom of Latina women over the years. If not, then I see a need for nurturing. Get help.

*Little Lisa's bro
 

Bart,

So you deny that a judge's particular socio-economic background, whether a "Latina", fundamentalist Christian, upper-middle class, etc., will impact how he/she views the law? Judges are simply robots for whom their personal experiences mean nothing?

Now, of course, this doesn't imply or support your gross mischaracterization that Sotomayor views the law as the law as "race and gender based political spoils".

Rather, she correctly states, eloquently I might add, that while every judge aspires to complete and total neutrality (i.e. to render decisions in a legal vacuum), to deny that a judge's background has no impact on decisions is to deny reality...

Or let's try this hypothetical: suppose you have a SCOTUS nominee that was a career military man; after seeing time in combat; went into JAG before being appointed to the federal bench; and then confirmed to SCOTUS. Would you believe that this particular Justice would, because of his background, render "better" decisions regarding, say, habeus corpus for "enemy combatants"?
 

it appears that making her out to be a racist over a single remark is just an example of an obsessive-compulsive need to find fault.

You said a mouthful, C2H50H.

Here's some additional background: A year or so ago, on the subject of racism, Bart made a big hubbub of his own righteousness and instructed the rest of us that his position was one of "zero tolerance for racism."

Around the same time, while discussing the perceptions that US foreign policy under Bush was creating across the middle east, Bart emphatically declared that he "couldn't care less what the Arab street" thought of the Bush program.

I submit that the inability to "care less" about what a particular ethnic group thinks is about as solid evidence of racism as it gets. But that's just me.
 

Baghdad Bart's "zero tolerance for racism" is very similar to his "zero tolerance for lying". Apparently he has never walked past a mirror.
 

C2H50H said...

I'm a bit baffled by the emphasis on a sentence spoken out of court by a nominee (and, arguably, taken out of context).

We are up to two speeches and a law review article where Judge Sotomayor expounds on her identity politics as legal realism.

Ilya Somin over at the Volokh Conspiracy provides an extensive analysis of Sotomayor's Latina Judge's Voice speech here, which rebuts the spin being offered to explain away her rather clear arguments.

Heather Gerkin posted today that she is tired of reporters asking her "what role does identity politics play on the Court?" Gerkin assumes that the reporters are asking these questions simply because Sotomayor happens to be a Latina woman. Actually, it is Sotomayor herself who clearly and repeatedly argued affirmatively for judges using identity politics to shape the law. These are legitimate questions that Sotomayor's supporters need to answer.
 

Bart,

Quote-mine away, old horse. You and the usual suspects are engaging in an obvious evidence-manufacturing enterprise, and I hope you have a good day for it, as the result isn't going to derail this nomination.

Meanwhile, anyone who is actually interested in whether Sotomayor might have a problem being unbiased, take a look at Glenn Greenwald today.

If you aren't familiar with Salon, you'll get an ad, but after a few seconds you'll be able to click through and see the page.
 

Our resident LLB* once again reveals his gender issues what with his spelling pickle in critiquing Heather. Perhaps our LLB* has an inner Latina trying to emerge that he feels compelled to constrain. What was it Boston attorney Joseph Welch said to Sen. Joe McCarthy during the Army/McCarthy hearings: "Have you no sense of decency, sir? At long last, have you left no sense of decency? Where is Mourad with his past loathsome lizard descriptives of how low our resident LLB* slithers?

*Little Lisa's bro
 

C2H50H said...

Quote-mine away, old horse. You and the usual suspects are engaging in an obvious evidence-manufacturing enterprise...

Pray tell, how is quoting at length the nominee expounding on her judicial philosophy "manufacturing evidence." It called examining the record.

BTW, Glenn Greenwald's anecdote is an encouraging indication that Judge Sotomayer will not go as far as to manufacture evidence on behalf of a plaintiff without a case. However, Glenn does not address the issues I have raised apart from calling some righty commentators names.
 

Shag:

The old call the messenger a bigot red herring will not work here. Apparently, you have no substantive defenses for Judge Sotomayor.
 

Bart,

I find your interpretations of Sotomayor's words unconvincing.

Having read the entire speech in its entirety, what I get from her words is that we're all a product of our upbringing and background, and having judges of diverse backgrounds will likely result in better rulings.

This is hardly racist. Quite the opposite. Of course, it's possible to pick parts of almost any speech to find things you want to find.

As she said,
to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care.

 

As that inner Latina seeks to bust out of our resident LLB*, here's his rejoinder:

"The old call the messenger a bigot red herring will not work here."

Exactly whose messenger is our resident LLB*?

Then LLB* follows with:

"Apparently, you have no substantive defenses for Judge Sotomayor."

My role is not to provide substantive defenses for her or anyone else. Rather, my role is to expose you for what you are: a male with gender issues. Perhaps the many Latinas and Latinos in Colorado will become aware of your tactics. You apparently cannot await the hearings with your preemptive attack on a Latina, suggesting perhaps reverse penis envy on your part and your macho DUI deadend career..

*Little Lisa's bro
 

C2H50H said...

Having read the entire speech in its entirety, what I get from her words is that we're all a product of our upbringing and background, and having judges of diverse backgrounds will likely result in better rulings.

I would suggest that you read Ilya Somin's rebuttal of the diversity defense to which I linked in my 3:00 p.m. post. Somin pretty much dismantles that excuse.

If anything, Somin is being too polite by declining to impute racist or sexist motives to Sotomayor's clearly racists and sexist arguments.

If John Roberts had argued that wise white men decide cases better than Latina women because of their upbringing, Roberts would have been universally condemned as a racist and sexist, then run out of the bar. Hell, Trent Lott was run out of his Senate leadership post simply for saying that old Dixiecrat Strom Thurman was a good candidate for President.

The double standard here reeks.
 

The double standard here reeks.

# posted by Bart DePalma : 6:07 PM



I'm pretty sure that smell is your bullshit.
 

Bart,

As Somin admits, since many, if not the vast majority, including conservatives like Rod Dreher disagree with his reading of the speech, perhaps the problem is selective perception.

I've suggested before that, when you have to parse a comment up one side of a molehill and down the other in order to make it a mountain, you're not likely to get a lot of agreement from the rest of humanity.

I find Somin's (and your) parsing of the speech unbelievable, pathetic, and stale. And your claim of double standard is simply insane.
 

Bart:

"If John Roberts had argued that wise white men decide cases better than Latina women because of their upbringing, Roberts would have been universally condemned as a racist and sexist, then run out of the bar."

Of course, that statement was in the specific context of discrimination cases, where, Sotomayor argued, a Latina woman's upbringing (where it is implied that the Latina woman was subject to the type of discrimination at the hypothetical case at bar), would create a "better" result in terms of eliminating discrimination than a white man, who didn't have that same experience. Any argument that Sotomayor was arguing that Latina women are objectively better judges in all instances than white males is utter nonsense.

Moving on to the "what if Roberts had said..." Considering the context was discrimination, a white man opining that he could craft a "better" result in a discrimination case would have a decidedly different meaning. Coming from the ethnic majority, had Roberts made the same statement, it could be viewed as
favoring the purported discrimination....
 

Today's WaPo features four (4) OpEds on Sotomayor: Krauthammer, Gerson, Kinsley and Robinson. Read them all, class, to understand how this nomination will be going down. Krauthammer varies Pres. Reagan's "Trust, but verify" with "Rebut, but confirm." Gerson identifies the Obama trap for conservatives, but says they should fall into it as a matter of prinicple. Perhaps this may lead to a Republican counter-trap for Democrats.

Here's a portion of Krauthammer's column that stands out:

"What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No 'temperament' insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy."

Will our resident LLB* in his self-proclaimed role of messenger heed Chuckie?

Let's have some competing excerpts from these OpEd columns in an effort to elevate the discussion.

*Little Lisa's bro
 

By the Bybee, does this, by Krauthammer, reference an oxymoron?

"What should a principled conservative do?"

Is our resident LLB* "a principled conservative"?

*Little Lisa's bro
 

Mark Tushnet's post "Judge Solomayor as Legal Realist" closes with this:

"I suppose this confirms the Wall Street Journal account: Judge Sotomayor might believe that a judge's decisions turn on what she had for breakfast."

The Journal article is quite interesting, especially Brian Leiter's sage (no pun intended) comment. Mark perhaps posted the foodie bit on Solomayor making the rounds on the Internet to reference, without quoting, a point once made by a legal realist about judging. Those of us with gastronomy backgrounds know full well of the efficiency of the pig as a food source, i.e., that only its squeal is inedible. But what we are hearing are the squeals of conservatives, principled and unprincipled, contesting Sotomayor even as to her diet. In this regard, the conservatives reveal their traif.

By the Bybee, I wonder if Mark Tushnet has dined on any of Sotomayor's favorite dishes.
 

Jack Balkin's post this morning (5/29/09) hits the nail on the head in analyzing Krauthammer's and Gerson's columns in today's WaPo.
 

Shag:

The Sotomayor statements that I have quoted all deal with her judicial philosophy of race and gender politics based legal realism. Indeed, these issues appear to be the subject of most of the following posts here at Balkinization apart from Sandy's ongoing musings about constitutional dictatorships.

I agree with Krauthammer that principled conservatives should not follow the left's example during the Bork and Thomas nominations and stay away from personal slanders and judicial temperament challenges.

However, such conservatives should not expect the left to respond in kind. Be prepared for the left to dodge the issue of Sotomayor's judicial philosophy and instead play the race and gender cards as illustrated by many of your posts on this thread.
 

Our resident LLB* lets us in on a BIG SECRET:

"I agree with Krauthammer . . . . "

NO SHIT SHERLOCK!

*Little Lisa's bro