Archive for category Supreme Court

Conservatives vs. Sotomayor

A lot of conservatives are itching for a fight over the Supreme Court nomination of Judge Sonia Sotomayor.   Pat Robertson says that the Republicans will lose all chance of regaining power if they don’t put up a strong battle, and talk radio hosts like Limbaugh and Hannity seem to see this as a defining issue.

Yet the problem is that there is really nothing to fight about.

The case against Sotomayor is weak.   Most people fixate on two cherry picked quotes — one where she says ‘policy’ is made from the bench, and another where she compares the abilities of a ‘wise Latina’ to a ‘white male.’   From this the opponents say she is racist, or wants intense activism.  The trouble is, if that’s the best they can do in looking for embarrassing quotes examining a public career that has spanned decades, it’s pretty meager.

That’s the old game of ‘gotcha’ politics — find some quote and then magnify it to the point that it drowns out all rational discussion.   Yet in this case the quotes are old, relatively benign and can easily be dismissed as ‘poor wording’ designed for a specific context (a speech about her background, judicial policy, etc.)   After all, how many of us would have every quote  of ours withstand the scrutiny of those who want to give it the worst interpretation possible.

At first the abortion foes were upset with her, but under more scrutiny, many pro-choice groups are suspicious of her belief in their cause.   If both sides distrust her, that’s an argument for her.   Conservatives end up with disagreements about particular decisions (she didn’t see reverse discrimination where the right wing does), but that’s hardly acceptable for a Senator to vote against a nominee.

Then, of course, the political suicide of a fight.  The GOP angrily beat back Democratic attempts to filibuster the nomination of  Justice Alito a few years ago, arguing correctly that Supreme Court appointments should be voted on a straight up or down vote.   It would take every Republican to ditch this principle for the sake of partisan politics to have a chance for a filibuster to work.   And, though some partisans on the Left might say that Republicans have no principles, they do — and most truly believe that she deserves a straight up-down vote.   Already Senator Snowe has signaled her general approval of the pick, and who knows — by the time the vote comes Senator Franken might be seated giving the Democrats a full 60 votes to defeat an attempted filibuster.

What politician would sacrifice the stated principle — something that would be thrown back in his or her face — knowing that the personally dangerous act is in vain?

Beyond that, this pick is popular with the fastest growing demographic in the US: hispanics and Latinos.   The Republicans are losing big time in this group, something that has caught them by surprise.  They had hoped that the fact most hispanics are Roman Catholic and morally conservative would give the GOP a claim to at least a large chunk of their vote — all they need is a decent split.   Instead, thanks to the anti-immigration crusade of folk like Tancredo (who threatened to bomb Mecca if the US were hit by al qaeda again, something that would put him on a moral par with Adolf Hitler), and the vocal anti-immigration rhetoric from the right, the Democrats are winning that group over by a large margin.

Most Republican strategists believe this can be turned around, but not if the GOP fights against the history making first Latina Supreme Court Justice!   In fact, hispanic GOP strategists are already appalled at the attacks on Sotomayor, believing this is only making it less likely that their attempt to win hispanic voters will succeed.    They fear a long term Democratic majority, based on demographics.   Whites are soon to be a minority in the US (though will remain a plurality), and the GOP cannot be seen as the party of whites or, increasingly, white males.

So why do conservatives want this fight so badly?   For some like Limbaugh, they make money on pushing emotional buttons of about 14 million people.  They don’t need to win elections to keep their ratings, they need to satisfy their core audience.  That’s fine, but for some freakish reason Limbaugh has become seen as the face of the GOP — in large part because he makes headlines, and the Republicans have no one else representing them.   McCain is damaged by defeat, Cheney is, well, unpopular and spends his time defending torture and war, and Romney is boring and uninspiring.  Limbaugh inspires the base, who are as vocal and angry as ever, and the rest of the party doesn’t want to anger the base.

And this base wants to fight.  To them, Obama is “the clown” the “usurper” who is threatening all that is American by bringing socialism, debt, and big government to the fore.  He represents everything they have been fighting against, and he’s winning.  This is happening as gay marriage spreads, abortion recedes as an issue, and the Christian right becomes as weak as any time since the pre-Falwell era.   They sense they are losing and feel a need to fight back.  So they are itching for battle — any battle.

But to fight over Sotomayor will dig their hole deeper, and though they are losing to Obama, he’s not the demon their propagandists paint him as.  Yes, he is doing some risky government spending, but it’s with the partnership of capitalist Wall Street (something the left doesn’t like) and in response to a  major crisis.   He’s not the force behind the growth of gay marriage, he’s not going to bring socialism to the US, but he does have different policy goals than the Republicans.  They are traditional democratic positions.  If the Republicans fight smart, they’ll have their day again, and they can play the role of any opposition party in a two party system — to moderate the other side.

Understandably it’s tough for them to take having fallen so far so fast.  They felt on top of the world in 2002, perhaps near a permanent majority.   Now that talk has flipped around.  And therein is the lesson — it can flip around again.  That’s politics.   But to fight for the sake of fighting, especially in a battle they are sure to lose, is to engage in a self-defeating strategy.

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Empathy, Wisdom, and the Supreme Court

If you read some of the commentary about the retirement of Justice David Souter, you’d think that Barack Obama committed an atrocity by simply saying he wants a judge with empathy.   EMPATHY?  The far right hates the term, perhaps because it means you try to understand the situation and circumstances of others, different from yourself.   They claim this is code for “activist judge” or even “pro-choice.”

They also claim that the law is somehow not to be read with any consideration of the human side of a legal action.  It’s purely “constitutional” meaning you use reason to determine the proper meaning of the law, and then apply it regardless of the consequences to the people involved.  The law is the law, after all.

The problem with that argument is that it seems to suggest that justices do not need wisdom, just knowledge.  Laws are made by people to deal with human situations.   The people making the laws, and the situations they entail, become relevant in large part because of how people react to situations emotionally.    To pretend that once the law is put in the books it then becomes something to which emotion is absent is ridiculous — emotion and human experience are part and parcel of every law and every human activity.

Moreover, the reason some people distrust emotion is that it can be misleading.   Let’s say you get an e-mail from a friend that seems to accuse you of something.   Rather than analyze the claim and consider the motives, you might suddenly get emotional and angry at the friend.  You then shoot back an angry e-mail which causes him or her to get upset, especially if the original e-mail wasn’t meant maliciously.  Pretty soon mutual emotions can cause animosity and unnecessary anger.   Whether in personal relationships, business deals, or foreign policy, misguided emotion can create dangerous errors of judgement.

Empathy, though, doesn’t do that.  Empathy in fact is an emotion which provides wisdom.    It allows one to better understand the true nature of a situation by not only categorizing it intellectually, but assessing the emotional state of those involved.   Empathy also doesn’t mean surrender.  When I put my six year old in time out I often empathize with his frustration at not being able to do what he wants.  To him many rules make no sense, he doesn’t understand how dangerous some things are, or the kind of damage certain actions can cause.   I empathize.  I realize that it seems unfair to him, I understand the voice saying “dadddyyy” as he looks at me wondering why his loving daddy is punishing him.

But, as supernanny would note, the “naughty chair” doesn’t work if not implemented with consistency and rules such as not talking after explaining why the child is there, and not giving in to feelings of guilt for causing emotional distress to the child.   Still, empathy helps keep anger in check.  I think that parents who don’t empathize have a harder time not exploding when their child yells, screams, or gets off the naughty chair for the tenth time.  Empathy provides understanding and actually makes it easier for me to provide effective discipline without losing my cool or giving up.

Empathy may be good for dealing with children, but on the court?   I’d argue yes.  If the exercise of making legal judgements only involves an intellectual activity, whereby the facts of the case and the law inexorably drive towards one conclusion, we don’t need judges, we need robots.  We need computers into which we can feed releavant data, and which will give us the proper verdict or ruling.   After all, no matter how learned a justice is, you can put a lot more information in a computer data base!

Or could it be that the law is not merely an intellectual exercise, or a formula to determine what the facts are.  Perhaps the facts themselves are a mix of objective phenomena and human situations.    After all, the makers of a law may have had one thing in mind, never intending the law to have an inadvertant side effect of harming people in an unexpected condition.   Perhaps the unexpected condition is such where a breach of the law was unavoidable or unintended.  Perhaps the breach is in fact no harm to society and there is no risk in letting it go unpunished.  Perhaps strict adherence to pure legality would itself be irrational, not taking into account the complexity and uncertainties of social structures.

If that is the case — if the law is not purely intellectual and formulaic, then what more do we need then a computer?   It can’t be simple emotion — anger for vengence, disgust at violations of ones’ own moral code, and other sorts of reactions may do more harm than good — it may replace the formula with raw subjective bias, rendering a result that is even worse.   If however the emotion is empathy, combining with reason, and not getting lost in anger or despair, the result is wisdom.

Wisdom is more than intellectual application of rules.  It is more than just knowledge.  Wisdom is knowledge plus empathy, it’s understanding the reality of a situation, and responding in ways that take the people’s state of mind and emotion into account.

This is clear in the account of King Solomon, who in the Bible has a dispute brought to him.   Two women claim to be the mother of a baby, each has a compelling case.  Solomon then orders the baby to be cut in half, with each mother getting a half of the child.   One of the women suddenly gives in, and says that it’s better for the other woman to have the child then to have it killed.  Solomon then awarded the child to that woman — she cared more about the child’s life than her claim on the child.   That wasn’t application of an intellectual formula, that was empathy of the human condition, and wisdom.

So yes, I want empathy.   I don’t want judicial activism or a litmus test on abortion, if the word “empathy” is a code, I don’t want the code.   I want the real thing, a justice with knowledge of the law, empathy and wisdom.

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