No “Empathy”
We can’t stand Barack Obama, nor can we stand “liberal activist judges.” On top of all that, we hate political correctness – and people who make decisions based on it.
Having said all of that, the last time we checked Presidents pretty much got to pick their Supreme Court justices, unless of course your name is Ronald Reagan (remember Robert Bork?) …
Anyway, amid all the reality TV-style drama surrounding Obama’s Supreme Court nominee Sonia Sotomayor is a curious case of dictionary discretion … dictated of course by political considerations.
From the New York Times:
Empathy, of course, was all the rage in Washington just a few short weeks ago, when Justice David H. Souter announced his retirement and Mr. Obama, in a surprise appearance in the White House briefing room, set forth his criteria for a replacement by declaring that he viewed “that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient.”
Empathy had a nice ring to it, evoking images of compassion, kindness, wisdom, depth. The word stuck. Empathy was in.
But now that conservatives have hijacked empathy and turned it into an epithet — “a code word for an activist judge,” as Senator Orrin Hatch, the Utah Republican, said recently on ABC — Mr. Obama seems to have deftly dropped it from his lexicon. Don’t look for him to use it again.
Obviously, whoever wrote that article (hijacked? that’s so pejorative) is a left-winger upset that “the One” is being deprived of his word choice. To which we can only offer one word – “pudding.”
But the whole “diction kerfuffle” does go to show us just how ridiculous the political process has become.
Right or left, you can’t say what you really think unless you mask it with so many protective layers of PC drivel that it loses all of its meaning.
Look, Sonia Sotomayor does want to judge based on how she views the world – which means that when she rules the skin tones and income levels and political persuasions of those who come before her absolutely will factor into her decision-making process.
But don’t we all do that to some extent? And – let’s be honest – is that really always a malicious thing?
Obama doesn’t think so … which we’re guessing is why he initially used the word “empathy” to describe it in the first place.
Of course when we make snap judgments in our heads they don’t dictate the overturn or upholding of federal law …
Comments
By Pat Hendrix on May 28th, 2009 at 12:45 pm
Funny thing about those liberal “activist” judges, they ain’t nearly as active as their counterparts:
http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?_r=2
“We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
One conclusion our data suggests is that those justices often considered more “liberal” – Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens – vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.”
By Jamie Holts on May 28th, 2009 at 1:07 pm
Well said? Great information, keep up the great work!
By Mike on May 28th, 2009 at 1:55 pm
The term “activist,” as applied to appellate and Supreme Court jurists has little to do with the quantitative number of statutes overturned. Rather, it refers to the standard by which a justice rules. Although not absolute, the two “camps” in this regard are strict constructionists (who interpret laws through the lens of the Constitution and the framers’ intent) and activists (who create case law based on fuzzier math- like “empathy” and “little guys vs. big guys”).
Cooking ability has as much relevance on a SCOTUS resume as does empathy.
By Recovering Lobbyist on May 28th, 2009 at 2:38 pm
Hendrix:
You clearly don’t understand what activist means. It means legislating from the bench. It also means not voting to overturn a law that is unconstitutional.
So you would have us criticize the Supremes for overturning an unconstitutional law? That is their jobs. What I’d like to see is a report on how often my representatives in Congress voted for a bill that the Supreme Court overturned. We already know how some members of the court voted. Thanks for the useful info Pat.
By The Baldmongoose on May 28th, 2009 at 4:14 pm
You took the words right out of my mouth Mike.
By Liberty for me on May 28th, 2009 at 9:29 pm
Hendrix….tossing out laws that are unconstitutional makes you an activist for freedom?? Is that what your saying??? I kinda dont think thats what everybody else means about Sonia Suconmysore..DUH
Even for a socialist your dumb…
By Mike on May 28th, 2009 at 11:23 pm
The other obvious (or maybe not so obvious, obviously) point is that since the framers designed the SCOTUS specifically as a check against legislative overstepping of Constitutional boundaries, strict constructionists would be MUCH more likely to strike down laws which overstepped the limits the Constitution places upon national governance. Hendrix’ piece from the NYT (go figure) perfectly demonstrates this- the three most conservative (in the Constitutional sense) constructionists on the current Court are the three justices which exceeded the Court’s current average.
No real shock that the Grey Socialist (I mean Lady) didn’t get it either, or tried to spin it as they did. They live in a bubble, and a weird bubble at that.
By Pat Hendrix on May 29th, 2009 at 7:11 am
Liberty,
When calling someone dumb, I suggest you spell the proceeding word correctly. It’s not “your” it’s “you’re.” Grow a brain.
As for the other comments, yes, overturning the laws passed by the democratically elected representatives of the people is the very definition of “activism.” Case in point: Abortion. When conservatives talk about “activism”, that’s a dog whistle meaning abortion.
By CL on May 29th, 2009 at 7:47 am
“overturning the laws passed by the democratically elected representatives of the people is the very definition of ‘activism.’”
So by your logic, allowing a plainly unconstitutional statute to stand is what, conservative? This is pure sophistry, as it omits the central question – how does the judge view his or her role in interpreting the Constitution. Your statement would be like saying my kids’ pediatrician is a better doctor than my grandfather’s oncologist because he has fewer patients die. Context is important. I suspect you know that, but liberals need their cute rationalizations.
“When conservatives talk about ‘activism’, that’s a dog whistle meaning abortion.”
I always appreciate it when Pat comes on to explain conservative positions to us. Such a valuable public service he offers. If conceding the abortion question (i.e. dropping all challenges to Roe) would get liberal judges to stop making the law in other areas(as Sotomayor tells us, the Court of Appeals is where policy is made), I believe I would take make that Faustian bargain.
By the way, I suppose you would concede that Roe is a perfect example of judicial activism, as it overturned a statute.
By Pat Hendrix on May 29th, 2009 at 7:52 am
Okay, let me toss out an example near and dear to the hearts of the fitsnews All-stars.
If the courts overturned a law passed banning civil unions, thereby making gay unions legal – would that be activism? Seems clear that it’s a matter of equal protection under the law. It’s unconstitutional, but somehow I doubt it would be considered good jurisprudence by you folks.
And Mike, the study was not conducted by the New York Times, merely cited. I know it’s your practice to answer and address the question you want to answer, not the one asked, but try sticking to the point. The New York Times is irrelevant to the discussion. Yesterday, you managed to address a question about female rights in Islam by discussing a nutty professor’s sympathy for Hamas. What did that have to with Herzog’s strawman argument that the “left” has ignored the plight of women in the Middle East and Africa? In fact, nothing.
By Pat Hendrix on May 29th, 2009 at 8:03 am
CL,
Perhaps you could explain to me what “activism” means. Clearly, I’m missing something after decades of hearing the word activism and abortion in the same sentence.
Back to the matter of “empathy” and diversity. Yes, she made a comment about diversity playing a part in judicial decisions but added in the same discussion that judges needed to “transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” Similarly, Sotomayor also noted in a discussion that the appeals courts are “where policy is made.” That’s the section you will continue to cite, but you conveniently leave out the subsequent sentences, “I’m not promoting it, and I’m not advocating it,” but rather was explaining that “the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.” That’s statement of fact. Like it or not, constitutional interpretation, forges and constrains public policy.
Face it, she’s a moderate. Sure she has a liberal voting record, but that in itself does not make her an activist judge. She’ll pass with 85 votes. Deal with it.
By Pat Hendrix on May 29th, 2009 at 8:21 am
“By the way, I suppose you would concede that Roe is a perfect example of judicial activism, as it overturned a statute.”
Yes, by the definition used in the study cited, it would be. CL is keen to tell me I don’t understand what “activism” means to conservatives, like understanding this mysterious race of ideologues is not possible for someone outside the fold (I once was), but as I understood the term – “activism” means that judges make law from the bench by striking down or expanding laws enacted by the people’s representatives. That was the case with abortion. Do I have this wrong? I’m more than willing to concede I’ve reached the wrong conclusion, but watching Jerry Falwell and Pat Robertson doubt the very validity of judicial review has me thinking otherwise.
By StupidShouldHurtMore (SSHM) on May 29th, 2009 at 9:24 am
Paging Miguel Estrada … paging Miguel Estrada. Would you please be so kind as to remind all of us how you sir, were treated at the hands of Democrats and by those who “dare us to oppose Sotomayer because of her ethic background.”
The street runs BOTH ways.
- SSHM
By CL on May 29th, 2009 at 11:10 am
Pat,
A judge’s role is to apply the individual rights of the citizens and the restrictions on government found in the Constitution to the facts of a particular case, whether that involves the interpretation of a statute or not. Judicial activism is where a judge believes that his or her interpretation of what the Constitution says to be colored by changing societal conditions, the so-called “living” Constitution (of course the Constitution is a living document, as it has a mechanism for amendment, but liberals seem to ignore that).
Your thought hypo begs the question a bit. A law banning civil unions is not unconstitutional unless homosexuals are a protected class or gay marriage is a fundamental right. These are the only situations where heightened scrutiny is supposed to be applied to a statute. Admittedly, the SCOTUS’s completely muddled and unintelligible opinion in Lawrence v. Texas confuses the question (and if you read the O’Connor concurrence you will see that the majority holding is not based upon equal protection), but until then there had been no question that heightened scrutiny does not apply to gay rights questions.
I think I know what you were driving at though, and the answer is no, I would not want an activist conservative judge. For instance, if a judge held that a law legalizing abortion in the State of California was unconstitutional, I would consider that inappropriate. But note how rare such an animal is. We have such a skewed landscape that judges who simply want to apply the Constitution as written are viewed as “right wing,” when really this should be considered the moderate position.
By Mike on May 29th, 2009 at 11:11 am
Wow, Pat, take a deep breath.
The point of the OTHER story (as I read it anyway) you just dragged in here was actually the left’s sympathy/attitude toward Islam’s treatment of women and a myriad of other issues; the “hypocrisy” of Western apologists, I think she called it. That makes my example pretty much on point, I think- sorry you didn’t dig it. That night’s “assault” on me was only led by the nutty professor- he had plenty of help from the other lefties in the room, trust me.
Now, back to the NYT thing- I didn’t know I credited them with the study. I was just talking about how they spun it, that’s all. They do, after all, get to pick the op-eds they run.
No hard feelings, bro. Sorry my occasional posts tend to answer the questions incorrectly in your world…
By CL on May 29th, 2009 at 11:15 am
And to clarify on your gay marriage hypo, I agree entirely with Justice Thomas’ dissent in Lawrence. To paraphrase, sodomy laws are stupid, and if I was in the state legislature of Texas I would have voted against it. But the SCOTUS justices are not in the legislature, and they are not allowed to overturn a law, even a stupid one, unless it is unconstitutional. And based upon the Bowers opinion issued just a few years ago, it was plain that the statute was not unconsitutional. Therefore, the case is a textbook example of judicial activism, even if I am happy about the outcome.
By Mike on May 29th, 2009 at 12:36 pm
Oh, and no one doubts she’ll be confirmed (quite handily). Also “not what we’re talking about.”
By Pat Hendrix on May 29th, 2009 at 1:24 pm
No problem, Mike, I was being a grouchy asshole – it’s a default setting at 7am. I agree completely that the notion of “empathy” as a deciding factor in the selection process is idiotic and Obama should be flogged for it. Presumably he was pandering to some group on the left, don’t know, didn’t make sense to me.
Both sides like activist judges, just not the ones that rule against their positions. You think Dems liked Bush v. Gore? It was a clearly activist, Supreme Court that forced its way into an issue explicitly set aside for the state. What could be more activist than that? Flip that around, conservatives were talking about legally sanctioned murder and the need to ignore the judiciary during the Terri Schiavo case, which was the most litigated right to life case in American history. Everybody knew it was going to be stuck down because it was clearly unconstitutional. That didn’t stop howls of “judicial activism.”
In any event, off to play golf.
Best,
Pat