Associate Justice Reinhardt?:
Senator Barack Obama, on the qualities he would look for in a potential Supreme Court Justice if he is elected President:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.Ninth Circuit Judge Stephen Reinhardt, on the qualities of a good judge:
[I]n my view they include compassion, sensitivity, empathy for others, and a commitment to the pursuit of justice.Hmmm......
Of course, but I think the implicit point is that the judge should change the law so that the law becomes more compassionate and sensitive. Compare with the conservative version to the contrary, that the judge should not "legislate from the bench."
Of course, but I think the implicit point is that the judge should change the law so that the law becomes more compassionate and sensitive. Compare with the conservative version to the contrary, that the judge should not "legislate from the bench.""
Orin, do you really believe in the accuracy of these conservative stereotypes? Do you really believe that liberals "change" the law while conservatives simply "discover" it?
It sounds like a 1L fairytail, but don't we all get to the point where we stop believing in the tooth fairy and the monster under the bed?
Or it's an understanding that without a sense of empahty, it is not possible to call the balls and strikes fairly; a belief that when people say "neutral" they really mean is (or the actual effect is) that you call the balls and strikes in a way that favors another particular group (e.g., businesses, or state governments, or grousp espousing certain causes).
As an analogy, if your rifle shoots to the right, you adjust it leftwards to get it to shoot straight ahead.
I think Reinhardt would be a fine Supreme Court justice (as one of nine) but is a problem on the circuit court, because of insufficient respect for legalism
Sometimes the Scalia wing gets it right, and sometimes the Reinhardt wing gets it right. However, since each wing can only prevail if it gets five votes, having a balance forces neither wing to go too far off the deep end. While not perfect, I think a more or less balanced court will tend to get the right bottom line more often, or at least mitigate the damage when they get it wrong.
The glaring difference between the quotes is that Obama's fails to mention justice, or by extension the law. It's like choosing a physician because he has a good bedside manner without considering whether he knows medicine.
To me, it seems more like an intentional misunderstanding on your part. Judges have to ponder what the "reasonable man" might think, what standards to use to calculate the preponderance of evidence, what undue influence is, etc. Besides, it's pretty well established that the right wing is as quick to legislate from the bench as the left.
I guess the new format for this blog is "All 'bama bashing, all the time." Why not put in on the masthead?
Obviously I can't speak for Orin, but I honestly do believe that this "stereotype" is at least 98% reality-rooted. In the almost 30 years I've been practicing law, I think you can count on your fingers the very few times when a major legal opinion has changed law in a way that does not favor the "progressive" view. People talk about a "swinging pendulum," but all I see is a constant press in one direction, with an occasional bit of frictional resistance that provokes nonsense allegations that the law has been "rolled back to the 1700's," or the like.
* This does not tantamount, as Ohio Scrivener claims, to "picking favorites," but is simply a recognition that the proper objects of compassion are those who need to be cut a break. The rule of lenity is a prime example of an institutionalized form of this principle.
Why don't we cut out the middle man and have the American people elect legislators with those qualities?
I would replace the SCOTUS with nine computers designed by nine different, independent manufactureres programmed only with the US Constitution and a English Dictionary: 1787 edition.
Compassion is what the pardon power is for.
Who was it that said the best way to highlight a bad law is to enforce it vigorously?
I absolutely agree with you at the trial court stage. Exercising discretion in an empathetic and sensitive way isn't just okay for a trial judge, it's absolutely required. A trial judge who does not feel compassion and empathy simply and categorically does not belong on the bench. But Obama is talking about the Supreme Court, not trial courts. The job of a trial judge and a Supreme Court Justice are profoundly different.
I have to hand it to him. Obama sure does set the bar high!
Then again, that raises this question of Obama:
Will Obama nominate judges who favor the young teenage mom, the poor, or the African-American, or the gay, or the disabled, or the old in cases where the law, as it is written, says they should lose?
Of course, he'd say no, because he knows that the judges he appoints will simply rule that the law means something it doesn't say.
You have a very interesting view of progressive apparently. To name just a few federal jurisdiction areas, since that is what I have been thinking of today: restriction on justiciability, the expansion of abstention doctrine, the restriction of habeas jurisdiction. There have been several cases in each of these areas within the last 30 years that have definitely moved the law in a way that most people I know who consider themselves "progresive" definitely consider them anything but. Those are just some random examples that occurred to me. I guess you count all the cases on your fingers, assuming you keep re-using your fingers over and over.
Of course this is true when you define any landmark ruling you don't like as "changing the law" and any one you do like as "rediscovering the true law."
Is recognizing who "need[s] to be cut a break" not pretty darn close, if not identical, to "picking favorites?
Look at it this way: if someone is downtrodden for some reason unrelated to the lawsuit in which they are a party, why would the judge need to cut them a break? And if that same party is downtrodden because of actions related to the lawsuit committed by the other side, then they don't need sympathy, they just need the relief to which they are entitled by the law. In neither of those scenarios is empathy called for.
To be honest, empathy strikes me as a poor quality for a judge.
Leaving aside that you might have a perceptual bias, there could be a structural reason. Power accrues gradually to strong institutions, so a sudden change in direction (Brown vs Board of Ed, Miranda) is likely to favor the individual.
You're both right and wrong here, Orin. Yes, you're right that the jobs are profoundly different. But you're wrong that this distinction matters to Obama. He wants both appellate judges and trial judges with their thumbs on the scale: minorities should win over non-minorities, women over men, individuals over corporations, government over individuals (except when dealing with the police/executive branch run by Republicans), gays over non-gays, athiests over Christians, etc.
Liberals have proudly and explicitly embraced a system of justice that has nothing to do with fairness. It has everything to do with their thumbs on the scales.
And appellate vs. trial judges makes no difference. The appellate judge is to favor a criminal over the government in a case about trial procedures, the trial judge is supposed to favor the criminal over the government when the trial is being run. The overriding principle is that approved victims groups deserve positive outcomes in the justice system irrespective of facts or law.
What are you trying to say? True law can't be rediscovered?
I have coined a new term today: "Ideological Smuggling"
Anyone wanna guess what it refers to?
Judge Reinhardt notes this: One thing it [i.e. judging] is clearly not, however—it is not simply “call[ing] balls and strikes,” as our Chief Justice told the Senate Judiciary Committee his function would be.8 In fact, as the last term of the Supreme Court demonstrates, his function is quite the opposite.
My take on this, more or less anyway, here.
Not at all. Law can certainly be rediscovered and law can certainly be changed. My point is that those labels become meaningless when you only attach one to rulings you like and the other to those you don't like.
Serious question -- when something has been the law for 75 years or more, and then the Court shifts course, is that a rediscovery or a change?
Can you explain to the layman (i.e. me) why empathy and sensitivity are valuable traits for a trial judge, but not for a SC justice?
Oh BTW, do you think Reverend Wright meets those criteria? If Dubya could nominate Ms. Myers...
Rediscovered. There is no statute of limitations on the constitution.
I can't speak for anyone else but the immediate concern for me is that appellate courts can rarely overturn a decisi
Trial judges see the witnesses, hear the testimony, and observe all the little minute things that go to credibility. They make decisions that cannot be overturned absent an abuse of discretion, which is obviously a very high standard.
Imagine a cold, heartless judge in an area like family law where trial judges have a lot of power. There's a lot of play in the joints for something like "best interests of the child" and weighing of factors. You want a judge who can observe those things with compassion and all those other qualities.
But once the case rises to appellate level, those same qualities would necessarily mean the judges have to decide who "should have won." Because they're bound by the abuse of discretion standard of review, overturning a result often means the law applied to the factual findings is going to be modified. The law of unintended consequences says those changes to the law can have some pretty significant impacts down the road.
If the answer is yes, and he can actually name the case and explain the reasoning, you got a judge. If the answer is no, toss him out.
Just imagine I wrote, "I can't speak for anyone else, but here's my immediate concern." I originally intended to write something else, so everything following that is unnecessary.
My beef is not that Obama is going to pack the every bench with Reinhardt clones; it is that millions of people are going to vote for Obama with the foolish impression that he is a moderate who will appoint Breyer or even O'Connor clones.
I wouldnt mind someone with the above approach to constitutional law during the never-ending 'global war on terror' on the Supreme Court. Posner and his suicide pact non-sense - - not so much.
Perhaps the idea that when someone says they just want judges to be neutral that they are in fact smuggling in their own biases as to how that "neutrality" is exercised?
But when you come down to it, the real issue is not the vague platitudes that people spout that cannot really be disagreed with, but how people actually believe judges should decide cases, described in detail, not in empty rhetoric. For the right, the empty rhetoric tends to be things like neutrality and umpire and not legislating, etc., for the left it is generally fairness or empathy, etc. But really, both are devoid of any real content. There are certainly examples of judges on the left going overboard in the name of fairness or understanding, but also plenty of examples of judges on the right doing the same in the name of neutrality. The real question is what the rhetoric means.
Honi soit qui mal y pense.
While I accept that the outcome of Alden is debatable, I submit that it is misleading to cite only the 11th Amendment and then say that Alden made up law. You seem to be suggesting that the 11th Amendment's text does not mandate the Alden result, thus, the result was not based on text. But the Alden opinion is very upfront about saying that it is not based on the 11th Amendment; it is based on Article III, and on pre-constitutional understanding, and on how Article III confirmed that, etc. The 11th Amendment's reversal of Chisholm was merely a confirmation of that view of Article III and the "plan of the convention." Here's the summary at the beginning of the analysis, which plainly explains that the decision is not rooted in the 11th Amendment alone:
Now, I will freely admit that there is a valid counter-argument about whether Alden was right or wrong in its view of Article III and the "plan of the convention" and all that. Thus, if someone says that "I don't buy Alden's view of Article III sovereign immunity," then I can respect that.
But if someone just says, "Alden isn't backed by 11th Amendment text, so there," then that's not being honest about what the opinion itself said, and it's not grappling with the hard part of the issue. After all, jurisdiction has to be affirmatively authorized by Article III before a statute can give jurisdiction, so even if the 11th Amendment does not bar jurisdiction in a case, that does not mean that jurisdiction automatically exists.
Sounds suspiciously like a penumbra to me.
I agree that the history and subtext (not to mention stare decisis) tend to support the outcome in Alden . I just don't think the actual text of the Constitution supports it, and I keep hearing from many on the right that the text is all that matters.
God help us all, if this asshole ever lives in the White House.
Once he gets in the general election, his blatant racism ( among other things ) will keep him out of office, I hope. I don't think we're quite ready yet for a New Black Panther to get appointed to a Cabinet position.
Nor, for that matter, do we need a President named Barack HUSSEIN Obama, whose roots are in Kenya and Indonesia, rather than AMERICA.
I wonder how much of an issue the Dems will try to make of 'war hero' THIS time around, like they did with sKerry ???? Hmmm...... all of a sudden, they don't think military experience counts any more .... go figure.
Of course, Shrillary landed under sniper fire 'For America's Sake' , right ? Damn, that little girl that read her a poem and handed her flowers on the tarmac didn't even look like she was armed ....
Since only the HUSSEIN is capitalized in Barack HUSSEIN Obama, does that mean he is 1/3 legal fiction, 2/3 sovereign citizen?
I thought that was the whole premise of the "Living Constitution." That it was open to change to meet the 'ever marching progress of American morals' or some such thing. As the judges are the only ones who get to divine what the "Living Constitution" says at any given moment, they must inherently be actively changing the law in the name of compassion (unless they think joe six pack is getting more ruthless with time - a silly proposition).
Isn't Obama all about the change?
BTW, every time I hear it, 'change' makes me think of the South Park episode with the homeless mobs droning "change? change?"
Three umpires were asked -
The first said: I call 'em what they are...
The second said: I calls 'em the way I sees 'em...
The third said: They ain't nothin' until I call them...
I should like to know "just" what is Judge R'hardt's definition of "justice".
The best definition of justice is one that I learned from an Army JAG Colonel: "Justice must first comfort the innocent and then capture and punish the guilty, in that order and in equal amounts." The Colonel said that "justice" was to human affairs what the equal sign is in a mathematic equation.
I have never forgotten that basic, yet profound, definition. I doubt if Judge R'hardt could ever comprehend it. His ways have been to punish the innocent for what the guilty did to somebody else, at another place and another time. A jurists vendetta is not justice. It is simply a form of extortion.
Oh, for Pete's sake. This is a game for English Department faculties, not for people who deal with the tangible world.
Displaced, you need to get back here to the Midwest quickly. I think you're losing your "earthiness."
What? The *other* James Buchanan? What other James Buchanan??
Oh yah, that's clear: The same Constitution that said segregated schools were OK also said segregated schools were not OK. And after half a century of widening the Commerce Clause into an absolute grant of police power to the Feds, the Court finally put some limits to it.
I'm not sure it's really an English department parlor game. The basic idea is that people, especially when talking about something political, are often full of BS. So you don't take them at their words. You look at their actions. If they say judges should be neutral, and they point to judges that actually are in practice, then that is good. If they say judges should be empathetic, and they point to judges who apply the law with a sense of the way the world really works, then that is also good. But too many people who say judges should be neutral really mean that judges should seek conservative results. And too many people who say judges should be understanding really mean that judges should seek liberal results. I'm not saying that you or anyone else here falls into those categories - I don't know enough about you all to make that judgment. But far too many do fall into those categories.
And I don't know about needing to get to get back to the Midwest quick. I'll probably become more liberal. :) When I'm among liberals, I generally push a more conservative line. When among more conservative folk, I like to defend liberals. This blog is mostly liberterian, with some right leaning, so I tend to be more liberal in my comments. I guess at the end of the day I am just a contrarian, which is a political persuasion I am happy to be.
Although it would be good to be where knowing how to make a good steak is the rule, not the exception.
"Although it would be good to be where knowing how to make a good steak is the rule, not the exception."
And I'm a vegetarian, so no help here. Perhaps you and I shoud *switch* locations. Although, as you may remember, contrarians don't fit in all that well in the Midwest. It's just not "nice" enough.
Thanks for your thoughtful answer.
(Pathetic Boosterism alert) And be sure to take your next vacation in Indianapolis!
There are more Bob Evans restaurants in Indy than anywhere else in the country!
Where are the vacation spots in Indiana? Other than Indiana Beach and Michigan City, Indiana has always been a state I've driven through to get some place else. Unless I was buying fireworks.
My condolences on the vegetarianism. I will take the Indianapolis thing under consideration though. I've passed through a couple of times, but never really stayed. I'll probably end up there again later this summer, though, on my way to hitting a couple of states that I need to add to my list to say I've visited all 50 states (41 so far!). When I do, I'll consider staying for a little while.
And I think contrarians fit in nicely in the Midwest - we just don't fit in comfortably.
To find THAT person, Obama would have to look outside anyone who is now or has been a judge anywhere, loo outside anyone who is a lawyer now or has been anywhere, and look to persons who have been excluded from those circles due to race, disability, poverty, or some irrational reason.
Example, person who is blind or with autism who uses only electronic Internet formats that State, federal bankruptcy and appellate levels, and United States Supreme Court do not provide -- persons excluded not because of any inability but solely because of barriers to screen readers or voice-recognition.
I always thought Judge Reinhardt was a very good judge when I litigated in the Ninth Circuit, but to get real diversity, a candidate needs to be selected from those who have been excluded from The Select existing Bar and Bench for reasons that are nothing more than PURE discrimination.
No one on the bench or practicing law anywhere in the United States has those qualifications?
Something tells me there are a number of judges currently on the bench who, despite your silliness, meet those qualifications. Heck, just among 6th Circuit judges in Detroit, Damon Keith and Cornelia Kennedy come to mind.
It isn't that hard to get along here. Some tips--If you're in:
Minn or Iowa: Bring a "hot-dish" to the socail at the Lutheran Church
Wisc: Bring beer to trivia night at Holy Rosary
Western Mich: Claim to be Dutch
Eastern Mich: Claim to not be Dutch
Illinois: If you're a Cubs fan, let people know. If you're a Sox fan, just stay the Hell out; we've got enough of your kind already, thank you very much.
Etc.
Wow - I totally missed the words ' segregated schools' in the Consitution. I would have sworn they aren't there. Could you refresh me as to the Article and Clause that mentions them ?
Sure he is General. He's old enough.
When Obama loses, and he will, we are all going to be called racists because he and his whiny wife won't be able to accept that the reason he lost is because the majority of the country does not like him or his Socialist policies.
Um, maybe. Or maybe they were just following the election returns in both cases.
It would be more accurate to say that they were following the general opinion of the elite circles in which Supreme Court Justices travel. In fact, the only election returns we have direct evidence the Warren Court paid attention to in the Segregation Cases were those of the segregationist Little Rock School Board, which were discussed at conference in Cooper v. Aaron.
The appointment and confirmation process has seen to that.
The people got wise to that over the last 3 or 4 decades.
>>>"God save us all"<<<
Yep.