Capitol Hill Blue Forums Political Issues The Obama Administration Obama picks Sotomayor for high court

Actually, if we were to tell the truth, ALL of the big, tough decisions are based upon the personal situs of the individual judges. The myth that the law exists independent of experience is the kind of hogwash that gets people to accept the horrible decisions of the Court.

Very few of these "big issue" cases have sufficient law in them to do more than provide a fig leaf to hide the prejudices. It is just an accepted fact to lawyers. When arguing always go for the perceived prejudice of the judge to whom you are arguing. Of course you have to have some legal basis, but that recedes in importance the more important the decision to the culture and the more ambiguous the statute or Constitutional provision involved.

So, what you presumably think are bad Supreme Court decisions, you attribute to being based on "emotions" (empathy?) versus reason? Please, continue to make my case.:-)
Yours,
Issodhos

If the examples prove your case, then I guess this invitation for examples was specious?

In other words, the law might boil down to what the judge had for breakfast. Ah, the convinience of legal realism.

By the way, Phil, I did not see where anyone claimed that the law was not based on experience. Obviously the law is based on the experience and recorded experience of humankind. "Experience" and "empathy" are not synonymous.
Yours,
Issodhos

Given that my argument is that "empathy" should not override reason in determining the constitionality of a case, yes.;-)
Yours,
Issodhos

For you I am sure that is true, not for all of us though.

When my daughter graduated from law school, I asked her what she thought was the most important thing that she had learned.

She thought only for a moment before replying: The law is not about moral or immoral, good or bad or right versus wrong - it's about what you can and cannot do.

BTW, I believe that the late William Renquist pointed out that being innocent was not a bar to being wrongfully convicted.

Nor is being guilty a guarantee of rightful conviction, true?

Issodhos, it appears to me that you have taken the post I wrote this morning and done exactly what I was talking about - you've posed two qualities as being somehow in opposition, when there is no requirement that they be posed that way.

I also get the feeling that you believe me to prefer empathy over any other qualification. That's simply a misreading of what I said.

If you were not addressing me directly, but simply hit "respond to" on my message, well, never mind.

Julia, that is quite correct.

If we regard the application of the law as a process, an algorith covering what can/cannot be done, then it is possible that the guilty go free and the innocent get convicted.

Does empathy play any part in the process? Should it play any part in the process?

I think it may well play a part in sentencing, and yes, I think it probably should.

When the law is unclear, I think empathy can play a part there as well.

And when it is unclear whether or not a law is constitutional, some sense of empathy with the citizens who are to abide by that law may be useful.

Realistically - all those who claim to know exactly what the the authors of the Constitution meant, do so through readings of historical papers and "the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of " those writers. (from dictionary.com)

I don't think anyone is arguing that a judge who made his or her decisions on the basis of empathy alone would be a great judge, or even a good one. Nor do I think anyone is suggesting that the ability to empathize is Judge Sotomayor's only qualification, even her primary qualification, as a proposed justice.

So I'd like to reverse the question: If a judge is otherwise well qualified, why does the idea of empathy make them a poorer judge than they would otherwise be?