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Sotomayor vs. Alito Revisited:

In an earlier post on Sotomayor's nomination I wrote that the quantitative data on Justice Samuel Alito's record on the court of appeals showed that he had a "substantial edge" over Sotomayor in terms of judicial distinction. Co-blogger Eric Posner now presents new data showing that Sotomayor's recent record stacks up well against Alito's by various measures. I agree with most of Eric's analysis. As Eric stated, it's not clear that Sotomayor's higher citation count proves that she was actually much more successful than Alito, since Second Circuit decisions likely get more citations than Third Circuit ones. But it can no longer be said that the quantitative data show that Alito had a "significant edge" over Sotomayor.

As I stated in the original post, my reservations about Sotomayor are primarily focused on her judicial philosophy and the substance of her decisions rather than on competence. I agree with Barack Obama's view that it is sometimes justifiable to oppose a technically competent nominee on philosophical grounds. I took the same position during the Bush Administration, and I still hold to it now. Even so, it's important to recognize that new evidence reveals that my original unfavorable comparison of her judicial record to Alito's was probably wrong.

Related Posts (on one page):

  1. Sotomayor vs. Alito Revisited:
  2. Judge Sotomayor: More Data, and a New Conclusion.
Psalm91 (mail):
Alito: Princeton, Yale, ethnic identification and empathy good.

Sotomayor: Princeton, Yale, ethnic identification and empathy bad.

It's as simple as brown and white.
5.28.2009 1:24am
Ilya Somin:
Suffice to say that I never defended Alito because of his "empathy" or his "ethnic identification." Neither did I criticize Sotomayor for her ethnicity. I do believe that empathy is a poor basis for judicial decisionmaking irrespective of the background of the judge who uses it.
5.28.2009 1:42am
catchy:
But it can no longer be said that the quantitative data show that Alito had a "significant edge" over Sotomayor.

Might you be so kind as to say what it does show vs. what it doesn't?

I worry your belief revision process has stalled.

As it stands, it now has no determinate output as between 'Alito has an edge' vs. 'Alito has no edge'.
5.28.2009 2:06am
AlanDownunder (mail):
"it's important to recognize that new evidence reveals that my original unfavorable comparison of her judicial record to Alito's was probably wrong."

I blame the prism. No way would the (probable) mistake have pointed in the opposite direction.
5.28.2009 2:17am
David Welker (www):
Somin,

Although I disagree with you substantively probably a majority of time, I do appreciate your intellectual honesty here. A lot of people when they are mistaken do not actually go out of there way to draw attention to that fact in making a correction.
5.28.2009 2:22am
David Welker (www):

I do believe that empathy is a poor basis for judicial decisionmaking irrespective of the background of the judge who uses it.


Then I take it that you don't believe that there is any room for consideration for real world consequences in judicial decision-making. Because, obviously, real world consequences cannot be perceived without empathy, since in many cases a judge will not find himself similarly situated to either the plaintiff or the defendant.

I think that decision-making without empathy (in cases where consideration of consequences is appropriate) is highly impractical.
5.28.2009 2:25am
Constitutional Crisis (mail):
"[M]y reservations about Sotomayor are primarily focused on her judicial philosophy and the substance of her decisions rather than on competence."

This is all that these trumped up charges against Sotomayor amount to. She's a fine, eminently qualified, and very intelligent jurist -- just as Roberts and Alito were. You may not agree with her, just as many did not agree with them, but to concede her competence, in effect, is to concede her confirmation. Elections have consequences. Move on.
5.28.2009 2:30am
Ilya Somin:
Then I take it that you don't believe that there is any room for consideration for real world consequences in judicial decision-making. Because, obviously, real world consequences cannot be perceived without empathy, since in many cases a judge will not find himself similarly situated to either the plaintiff or the defendant.

I think that decision-making without empathy (in cases where consideration of consequences is appropriate) is highly impractical.


One can consider real world consequences without empathy. People do so all the time. For example, I have little if any empathy for racists or anti-Semites who challenge laws restricting their speech. But I also have no trouble recognizing that such speech restrictions have harmful "real world consequences."
5.28.2009 2:33am
Ilya Somin:
She's a fine, eminently qualified, and very intelligent jurist -- just as Roberts and Alito were. You may not agree with her, just as many did not agree with them, but to concede her competence, in effect, is to concede her confirmation.

I don't see why recognizing her competence requires me to support her nomination anymore than Obama's recognition of Roberts' competence required him to support Roberts.
5.28.2009 2:34am
Constitutional Crisis (mail):
I don't see why recognizing her competence requires me to support her nomination anymore than Obama's recognition of Roberts' competence required him to support Roberts.

Obama's concern with Roberts was, to paraphrase, that his words did not match his deeds. Roberts claimed to believe that the law was (in Obama's paraphrase) "a way of evening out the playing field between the strong and the weak," but Obama observed that Roberts repeatedly carried the water for those in power. This inconsistency was grounds for rejecting the nominee.

So please explain -- if you concede her competence, as Obama conceded Roberts's -- is there some fundamental dishonesty in how she approaches the law, that is demonstrable through her acts as a judge? Because all I've seen to date is sophistry in the parsing of a speech on the importance to her -- and legitimacy -- of the views she has developed in part through her ethnic tradition. Certainly there are others on the Court who hearken back to their family's sharecropping, Catholic, or Italio-American roots for the same strength of conviction.
5.28.2009 2:59am
Ilya Somin:
So please explain -- if you concede her competence, as Obama conceded Roberts's -- is there some fundamental dishonesty in how she approaches the law, that is demonstrable through her acts as a judge?

I don't think that she is "dishonest." Rather, I think that she is badly mistaken in her judicial philosophy and likely to make seriously flawed decisions that undermine major constitutional principles (as indicated, for example, by her record on property rights, which I have blogged about earlier in this series of posts). I also think that her judicial philosophy, as stated in her speech, is likely to affect her acts as judge on important constitutional issues.

Obama's concern with Roberts was, to paraphrase, that his words did not match his deeds. Roberts claimed to believe that the law was (in Obama's paraphrase) "a way of evening out the playing field between the strong and the weak," but Obama observed that Roberts repeatedly carried the water for those in power.

I'm no great fan of Roberts. But I don't think that anything in Obama's speech proves that Roberts "carried water" for those in power in cases where Roberts believed that the legal merits were against them. I also think that many of the cases that Obama identifies as favoring those in power actually had far more ambiguous impacts.
5.28.2009 3:13am
David M. Nieporent (www):
Obama's concern with Roberts was, to paraphrase, that his words did not match his deeds. Roberts claimed to believe that the law was (in Obama's paraphrase) "a way of evening out the playing field between the strong and the weak," but Obama observed that Roberts repeatedly carried the water for those in power. This inconsistency was grounds for rejecting the nominee.
But that's obviously completely untrue. If the "inconsistency" were the grounds for rejecting the nominee, then Obama would have supported Roberts if Roberts had said "I carry water for those in power" and then went ahead and carried water for those in power, because then there would be no "inconsistency." But we obviously know that's not the case. Obama opposed Roberts because of Roberts' decisions, not because of any "inconsistency" between Roberts' statements and his decisions.
5.28.2009 6:08am
Officious Intermeddler:
is there some fundamental dishonesty in how she approaches the law, that is demonstrable through her acts as a judge?


Ricci v. DeStefano, anyone?

Look, this isn't complicated. The woman's sufficiently invested in perpetuating Title VII as a racial spoils system that she managed to outrage a Clinton-appointed colleague with her shamelessness. Notwithstanding her resume there's every indication that she's a results-oriented hack, which is no doubt precisely the reason Obama nominated her.

If it makes members of the "reality-based community" happy to tell one another that Obama's rejection of Roberts was pure principle while Republican opposition to Sotomayor is obstructionism or racism, well, whatever spins your beanie wheels. Just kindly spare the rest of us the BS.
5.28.2009 7:19am
Constitutional Crisis (mail):
As always, the most reliable indicator of a "results oriented" judge is one who doesn't agree with you.

Obama opposed Roberts because he saw a huge champion of executive power, to the detriment of even-handedness in the law. If you want to oppose Sotomayor based on her work, fine. But the line of opposition to Sotomayor articulated here is based on shadowy innuendo that is rooted in her ethnic identity. When the left opposes on the basis of identity, it is often glossed as hypocrisy. When the right does it, it is racism. And around the Wurlitzer goes.
5.28.2009 8:08am
jukeboxgrad (mail):
somin:

I do believe that empathy is a poor basis for judicial decisionmaking irrespective of the background of the judge who uses it.


Then presumably you were troubled to hear a president describe a judge like this:

a delightful and warm, intelligent person who has great empathy
5.28.2009 9:10am
one of many:
Jukeboxgrad, it would be troubling if the president said those were the criteria the president wanted the judge to base his decisions on. I think that 'delightfulness' is also a poor basis for judicial decisionmaking. Would you care to structure an argument defending the proposition that "delightfulness" is a valid means of reaching judicial decision?
5.28.2009 9:28am
Zach (mail) (www):
Your original post has a few salient points justifying your opposition:
1. Sotomayor is liberal; so you're sure you'll disagree with her.
2. You are bothered by her "wise Latina" comment.
3. She isn't as distinguished as most other recently confirmed justices.

The first point is the only one that holds up. Yes, evidence points towards her being a liberal. You don't explain how this would color her judicial philosophy. In fact, you don't explore her philosophy at all beyond the second point, which is entirely contingent on a quote that's taken entirely out of context. That you apologize for shoddy statistics and then lean even more strongly on this completely dishonest quotation is telling.

You oppose her because she's a liberal; this has something to do with "judicial philosophy" ... no clue how it took some 1500 words to communicate such a hollow point.

I'm curious what part of your original post focused on "the substance of her decisions." Furthermore, your post said that judicial philosophy and ideology are "legitimate considerations" examined "in addition to professional qualifications." You're now saying it's OK to reject nominees based on philosophy alone, which is fine but not as consistent with your post as you say here. It seems that if you're going to reference Obama's reasoning on Roberts, it's necessary to explain how Sotomayor's philosophy conflicts with yours. If Obama had just said, "Roberts worked for Reagan so I'm voting no!" then what you're saying would be equivalent.

In your last post you seemed to ignore your own Bush-era advice: "That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety."
5.28.2009 9:29am
Bob from Ohio (mail):
O got elected so in the absence of some personal corruption or defect, she should be confirmed. The "wise Latina" and "make policy" comments do not rise to a personal defect in my view.

But let's not pretend that either Sotomayor or Alito are star judges. They are not. They are very intelligent, well educated good judges but nothing more. Sotomayor might in 30 years be remembered for her "first Latina" status but neither Sotomayor nor Alito will be remembered for anything else. At least, their prior careers have shown nothing to indicate it. They are competent but average.

That's ok though. Not everyone on the S/C, or any other group, is going to be a star. Never has happened, never will. Souter was below average but the rest are average to good with 1 or 2 possible exceptions.

In baseball terms, Sotomayor and Alito are Johnny Damon or JD Drew, not ARod or Manny Ramirez. Solid and productive regulars but not stars.
5.28.2009 10:13am
Ilya Somin:

Then presumably you were troubled to hear a president describe a judge like this:

a delightful and warm, intelligent person who has great empathy


Not troubled, just not convinced that the empathy adds to his qualifications to be a Supreme Court justice.
5.28.2009 10:28am
Ilya Somin:
Your original post has a few salient points justifying your opposition:
1. Sotomayor is liberal; so you're sure you'll disagree with her.
2. You are bothered by her "wise Latina" comment.
3. She isn't as distinguished as most other recently confirmed justices.

The first point is the only one that holds up. Yes, evidence points towards her being a liberal. You don't explain how this would color her judicial philosophy. In fact, you don't explore her philosophy at all beyond the second point, which is entirely contingent on a quote that's taken entirely out of context. That you apologize for shoddy statistics and then lean even more strongly on this completely dishonest quotation is telling.


I wrote several additional points discussing specific flawed decisions that she made such as Didden, and also discussed these issues further in my LA Times debate over the nomination with Erwin Chemerinsky (also linked in this series of posts). The initial post wasn't meant to be a comprehensive examination of her record and I never suggested that it was. As for the third point, I still think she is not as distinguished as many of the recently confirmed justices, though her stats do compare well with Alito's. I also said, even in the original post, that her competence was good enough for confirmation, so this was never one of my reasons for opposing it.
5.28.2009 10:31am
Jason F:
Prof. Somin, I'd be interested in hearing you expand upon your views on the role of empathy in judicial decision-making in light of the nature and origin of the courts of equity. It seems to me that courts of equity, by their very nature, are an endorsement of the idea that empathy has an important role to play in judicial decision-making.
5.28.2009 10:37am
Eli Rabett (www):

I don't see why recognizing her competence requires me to support her nomination anymore than Obama's recognition of Roberts' competence required him to support Roberts.


Because it clears away the bush and lets the argument get down to real issues. Sort of like having to spend hours bashing idiots who claim that waterboarding is not torture. One never gets to the issues.
5.28.2009 11:13am
Eli Rabett (www):

In baseball terms, Sotomayor and Alito are Johnny Damon or JD Drew, not ARod or Manny Ramirez. Solid and productive regulars but not stars.


Wins the ethnic part of the thread.
5.28.2009 11:14am
David Welker (www):

One can consider real world consequences without empathy. People do so all the time. For example, I have little if any empathy for racists or anti-Semites who challenge laws restricting their speech. But I also have no trouble recognizing that such speech restrictions have harmful "real world consequences."


First of all, one definitely has to distinguish between sympathy and empathy. But, I am pretty sure you already got that distinction.

Of course, speech is a different case. Because, even judges themselves exercise free speech rights, it is easier to perceive the negative consequences of restricting speech. The exercise of empathy is necessary, but in this sort of case that exercise is almost automatic. Keep in mind that you do not have to exercise empathy for the particular plaintiff or defendant themselves, but instead to even a hypothetical person who is similarly situated who will be affected by whatever precedent is set.

I think that when judges face plaintiffs or defendants that are less like themselves, empathy is even more necessary. For example, in racial discrimination cases, a judge who has never experienced or practiced racial discrimination will need to exercise empathy to perceive the consequences.

I think it is just silly and unrealistic to imagine that you can perceive all the consequences that affect others without putting yourself in their shoes from time to time.

Keep in mind, empathy is very different from sympathy.
5.28.2009 12:14pm
David Welker (www):

If the "inconsistency" were the grounds for rejecting the nominee, then Obama would have supported Roberts if Roberts had said "I carry water for those in power" and then went ahead and carried water for those in power, because then there would be no "inconsistency." But we obviously know that's not the case. Obama opposed Roberts because of Roberts' decisions, not because of any "inconsistency" between Roberts' statements and his decisions.


Without taking an position on Justice Roberts, I wanted to point out a logical problem in your argument.

You are assuming that just because "inconsistency" might be a sufficient reason for rejecting a nominee, that is also a necessary condition. That is, you are assuming that if a nominee is not inconsistent, he must be accepted.

However, logically speaking:

inconsistent --> reject nominee

is not equivalent to:

~inconsistent --> accept nominee
5.28.2009 12:25pm
Ilya Somin:
Of course, speech is a different case. Because, even judges themselves exercise free speech rights, it is easier to perceive the negative consequences of restricting speech.

Sure judges exercise free speech rights. But their rights are highly unlikely to be affected by laws that restrict racist or politically unpopular speech because most judges are in the political mainstream.

I think that when judges face plaintiffs or defendants that are less like themselves, empathy is even more necessary. For example, in racial discrimination cases, a judge who has never experienced or practiced racial discrimination will need to exercise empathy to perceive the consequences.

I don't think so. I think a judge can understand that discrimination can seriously hurt someone unlike themselves even if they feel little or no empathy for that person.

Keep in mind, empathy is very different from sympathy.

True. But I don't think you need either to make good judicial decisions.
5.28.2009 12:28pm
Zach (mail) (www):

I wrote several additional points discussing specific flawed decisions that she made such as Didden.

I hadn't read those, but true enough. However, reservations about the substance of her decisions were not in your original post. Nor were those, along with a simple objection to her as a liberal, stated as your primary reservations. Your immediate response to the announcement was, in fact, exactly what you warned against when it came to Bush's appointees - oppositions to her ideology following "dubious accusations of incompetence [poor statistics] and ethical impropriety [out of context quotation]."
5.28.2009 12:35pm
levisbaby:
That quantitative data stuff was and is garbage.
5.28.2009 12:43pm
M N Ralph:

Jukeboxgrad, it would be troubling if the president said those were the criteria the president wanted the judge to base his decisions on.


If having empathy is entirely irrelevant to the qualifications for being a Supreme Court Justice, then why does Bush make a point of saying Thomas has great empathy in his remarks announcing his selection of Thomas to serve on the Supreme Court?
5.28.2009 12:59pm
pluribus:
I am beginning to see a pattern emerging. Empathy is bad when a judge suspected of liberal tendencies is nominated. Empathy is not bad when a judge suspected of conservative tendencies is nominated. Many arguments were raised against Clarence Thomas. His empathy wasn't one of them--yet it was cited by the president as one of the major reasons for nominating him. Now Thomas is celebrated by conservatives. George H.W. Bush praised Thomas's empathy, and conservatives didn't raise a whimper. Empathy is a straw man, and it ought to be dropped by serious commentators. Let Limbaugh entertain his listeners by raging on and on about how abolustely terrible it would be to have an empathetic judge--unless, of course, his name is Clarence Thomas. Jeff Sessions used the word empathy more often than any other word than "the" in a discussion of Sotomayor this morning. Keep that up, Jeff, and you will be doing your part to further shrink the size of the already miniature Republican tent.
5.28.2009 1:50pm
RPT (mail):
For those who believe a lack of empathy is a positive trait:

From suite101.com. Sourced below.

"What is Empathy?

Normal people use a variety of abstract concepts and psychological constructs to relate to other persons. Emotions are such modes of inter-relatedness. Narcissists and psychopaths are different. Their "equipment" is lacking. They understand only one language: self-interest. Their inner dialog and private language revolve around the constant measurement of utility. They regard others as mere objects, instruments of gratification, and representations of functions.

This deficiency renders the narcissist and psychopath rigid and socially dysfunctional. They don't bond - they become dependent (on narcissistic supply, on drugs, on adrenaline rushes). They seek pleasure by manipulating their dearest and nearest or even by destroying them, the way a child interacts with his toys. Like autists, they fail to grasp cues: their interlocutor's body language, the subtleties of speech, or social etiquette.

<b>Narcissists and psychopaths lack empathy. It is safe to say that the same applies to patients with other personality disorders, notably the Schizoid, Paranoid, Borderline, Avoidant, and Schizotypal.</b>

Read more: "Empathy: Empathy and Personality Disorders | Suite101.com" -personalitydisorders.suite101.com
.........................................................

"Q. How important is empathy to proper psychological functioning?

A. Empathy is more important socially than it is psychologically. <b>The absence of empathy - for instance in the Narcissistic and Antisocial personality disorders - predisposes people to exploit and abuse others. Empathy is the bedrock of our sense of morality.</b> Arguably, aggressive behavior is as inhibited by empathy at least as much as it is by anticipated punishment.

But the existence of empathy in a person is also a sign of self-awareness, a healthy identity, a well-regulated sense of self-worth, and self-love (in the positive sense). Its absence denotes emotional and cognitive immaturity, an inability to love, to truly relate to others, to respect their boundaries and accept their needs, feelings, hopes, fears, choices, and preferences as autonomous entities.

Read more: "Empathy: Empathy and Personality Disorders | Suite101.com" - http://personalitydisorders.suite101.com
5.28.2009 1:56pm
pluribus:
Ilya Somin:

I think a judge can understand that discrimination can seriously hurt someone unlike themselves even if they feel little or no empathy for that person.

With respect Prof. Somin, this strikes me as oxymoronic. If the judge understands that discrimination can seriously hurt someone unlike themselves, aren't they by definition empathetic? What is judicial empathy if it isn't the ability of a judge to understand how laws and judicial decisions impact people unlike the judge? Or if you think it is something different, are you merely quibbling about the definition of the word "empathy"? If so, it seems like a very weak basis for criticizing a Supreme Court nominee.
5.28.2009 1:58pm
Officious Intermeddler:
As always, the most reliable indicator of a "results oriented" judge is one who doesn't agree with you.


And yet sometimes a cigar is just a cigar.

Again: if you in the "reality-based community" want to pretend that Democrats opposed Republican nominees out of pure principle while any conservative/libertarian opposition to Sotomayor is some combination of obstructionism and racism, far be it from me to get between you and your delusions.
5.28.2009 1:58pm
Arnostocles:
Officious,

Democrats opposed Republican nominees because the nominees were conservative and Republican. The opposition isn't based on qualifications usually - that's obstructionist, and okay under the Obama/Somin view of the confirmation process [it's okay to oppose a nominee because you disagree with the nominees politics/philsophy/worldview].

Republicans often oppose Democrat nominees because the nominees are liberal and Democrat. That's also obstructionist, and also okay under the Obama/Somin view.

But some [NOT all] of the opposition to Sotomayor is racist - look at all those 24ahead posts about how Sotomayor is a scary Puerto Rican terrorist extremist supporter of crime, and those Zarkov posts about how the Hispanic experience is street crime and disfunctional families.
5.28.2009 2:22pm
catchy:
I think a judge can understand that discrimination can seriously hurt someone unlike themselves even if they feel little or no empathy for that person.

That's one-part a contentious claim in empirical psychology and another-part not particularly relevant.

The 'simulation theory' re: how we understand others' mental states has it that we 'simulate' another's experiences and mental states, by adopting them as our own and then running through the consequences by also adopting as many of someone's feelings and interests as are relevant.

If that theory in empirical psychology is correct, then your claim that empathy can be divorced from understanding others' mental states is false.

But your la-la trip into empirical psychology isn't particularly relevant, since what you should be showing, but haven't, is that employing empathy is necessarily a defect as compared to whatever pure logico-mathematical reasoning alternative you have in mind.

On the contrary, there's reason to think evolution has cognitively endowed most members of the species with empathy in order to navigate our way through a highly complex network of social concerns.

We should worry about the judge who didn't employ empathy, not the reverse.
5.28.2009 2:56pm
jukeboxgrad (mail):
one:

it would be troubling if the president said those were the criteria the president wanted the judge to base his decisions on.


Bush was not suggesting that I invite Thomas to a barbeque. Bush was describing why Thomas should "sit on this nation's highest Court." And Bush decided, in this context, that it was important for us to know that Thomas "has great empathy." I don't see why Bush would say this unless Bush thought it was relevant to the job. As Ralph said.

I think that 'delightfulness' is also a poor basis for judicial decisionmaking. Would you care to structure an argument defending the proposition that "delightfulness" is a valid means of reaching judicial decision?


The fact that Bush mentioned 'delightfulness' is not my problem. It's his problem, and yours (assuming you support Bush). He must have thought this characteristic is relevant to the job. Why? Who knows. Maybe he thinks this means Thomas will be a good team player. Maybe Bush wants to see more "judicial decisionmaking" that's "delightful." But the question is for him, not me. Either way, Bush obviously thought this is a quality that he wants to see on the Court. Just like empathy.

====================
somin:

Then presumably you were troubled to hear a president describe a judge like this:

"a delightful and warm, intelligent person who has great empathy"


Not troubled, just not convinced that the empathy adds to his qualifications to be a Supreme Court justice.


But the point is that we suddenly hear "empathy" complaints from you and others, even though we heard no such complaints when Bush used the same word. Seems like a double standard to me.
5.28.2009 4:06pm
einhverfr (mail) (www):
Somin:

This post shows the intellectual honesty I admire about many of the VC bloggers. Thanks.
5.28.2009 4:13pm
Falafalafocus (mail):

But the point is that we suddenly hear "empathy" complaints from you and others, even though we heard no such complaints when Bush used the same word. Seems like a double standard to me.


I think that he's got you on this, Ilya. Why didn't you post anything on this empathy issue back in 1991? Clearly, you are being hypocrital on this issue. Unless, of course the Volokh Conspiracy wasn't around back then...
5.28.2009 5:06pm
ShelbyC:

For those who believe a lack of empathy is a positive trait:


Uh, nobody says that.
5.28.2009 5:16pm
David Welker (www):

I don't think so. I think a judge can understand that discrimination can seriously hurt someone unlike themselves even if they feel little or no empathy for that person.


We agree with the term "that person." But, in a hypothetical society where members of a majority discriminate against a minority, is it really your position that a judge who is a member of the minority would be able to perceive the negative consequences of discrimination without putting himself in the shoes of a member of that minority (not necessarily the particular individual)?

Isn't that judge going to at least have to use their imagination to think about what it would be like to be discriminated against?

Also, with free speech, I think likewise a judge who utters speech that would likely never be censored has to at least imagine scenarios where it was their ideas that were the ones being suppressed. That certainly involves an act of empathy if, as you suggest, the judge is at no risk whatsoever of having any of his own ideas suppressed.

The bottom-line is that I don't think you can understand or appreciate the costs of discrimination or the costs of suppressing free speech if you do not at least put yourself in the position of someone (not necessarily the particular plaintiff or defendant) who is discriminated against or who has their speech restricted.

Now, maybe there are plenty of cases where the law is perfectly clear and you have no discretion. In those cases, a consideration of consequences may very well be irrelevant. But, in cases where consequences matter, empathy is definitely a legitimate and necessary information processing tool.

But, even if it was not, the current conservative attacks on the concept of empathy are simply ludicrous and clearly nothing more than the symptoms of the fact that conservatives are going through an identity crisis and desperately trying to find new ideas behind which to rally behind. I for one hope that conservatives do choose to market themselves as the "anti-empathy" party. Sounds like a great marketing tool from my perspective, given that I am perfectly happy to see expanded Democratic majorities.

There is nothing about the use of empathy that implies that it is used only to benefit favored groups in contrast to simply as an information processing tool where it is used to consider the perspective and interests of both parties to a lawsuit and just as or more importantly, similarly situated parties who will be affected by whatever precedent is set.
5.28.2009 5:17pm
David Welker (www):
We agree with the term "that person." But, in a hypothetical society where members of a majority discriminate against a minority, is it really your position that a judge who is a member of the minority majority would be able to perceive the negative consequences of discrimination without putting himself in the shoes of a member of that minority (not necessarily the particular individual)?
5.28.2009 5:18pm
one of many:

I think that he's got you on this, Ilya. Why didn't you post anything on this empathy issue back in 1991? Clearly, you are being hypocrital on this issue. Unless, of course the Volokh Conspiracy wasn't around back then...



Or if HW Bush didn't actually say he thought Thomas was a delightful, warm and empathetic judge, but instead said Thomas was delightful, warm and empathetic person. I'm still waiting for the argument being "delightful" is a quality to seek in a judge. if you actually read the quote from HW Bush HW Bush believed not that Thomas would decide cases based upon his empathy or his sense of humor, but "[h]e will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require." instead of based upon his delightfulness, warmth, emppathy or sense of humor.
5.28.2009 5:38pm
Bad (mail) (www):
Don't forget, by right-wing logic (tm), Alito had a 100% reversal rate with the SC. That makes him pretty much the worst and most out of control judge ever, even worse than Sotomayor's piddling 60% rate, right?
5.28.2009 6:20pm
jukeboxgrad (mail):
falafalafocus:

Why didn't you post anything on this empathy issue back in 1991? Clearly, you are being hypocrital on this issue. Unless, of course the Volokh Conspiracy wasn't around back then...


Duh. I know "the Volokh Conspiracy wasn't around back then." But conservatives were. And they raised no complaints when Bush talked about empathy. Why not?

It's not that we heard no complaints from Somin. It's that we heard complaints from no one. Why?

====================
one:

Bush didn't actually say he thought Thomas was a delightful, warm and empathetic judge, but instead said Thomas was delightful, warm and empathetic person.


Bush was telling us why Thomas belonged on the Court. If empathy isn't relevant to Thomas being on the Court, then there was no reason to mention it.

Bush didn't mention Thomas' golf scores, or his singing ability, or his talents as a chef. Bush was not making general remarks about Thomas. He was promoting the idea that Thomas belonged on the Court. Therefore it's reasonable to understand that Bush was focusing on qualities that Bush saw as helpful in a judge.
5.28.2009 6:38pm
ShelbyC:

It's not that we heard no complaints from Somin. It's that we heard complaints from no one. Why?




Well, saying someone has empathy is not the same as saying empathy in a criteria for being a judge. For example, saying "I nominate judge X for the bench. He's a greate judge and, also, a distinguished poet" is not the same as saying "I'm looking for a judge who is a distinguished poet"
5.28.2009 6:57pm
jukeboxgrad (mail):
shelbyc:

"I nominate judge X for the bench. He's a greate judge and, also, a distinguished poet"


If a president ever actually said that, it would be reasonable to ask the following question: why did the president mention that? Does he think it's relevant to being a judge? And we would especially expect to hear that question if there were people who were specifically concerned about poets dragging their poetry habits into the courtroom.

I wonder if you can imagine a president saying this: "I nominate judge X for the bench. He's a great judge and, also, a terrific figure skater." I don't think you can. We would treat a statement like that as completely wacky, because there's no possible connection between judging and figure skating. When a president makes an important announcement like this, we understand that the various things he's mentioning are connected, at least potentially (and if he mentions things that are totally unconnected, we'll think he's wacky). And there is indeed a possible connection between judging and empathy. (And, by the way, it's completely rational to think that Bush thought that being delightful and having a sense of humor are also qualities that can help someone be a better judge.)

Now suddenly we hear that conservatives are very concerned about judges bringing empathy into the courtroom. Therefore this should have at least been a question when Bush mentioned Thomas's "great empathy." Bush should have been asked to clarify that remark (because there is at least the possibility that Bush meant 'empathy is a criteria for being a judge'). But he wasn't, and we all know why: IOKIYAR.
5.28.2009 7:42pm
one of many:

Bush was telling us why Thomas belonged on the Court. If empathy isn't relevant to Thomas being on the Court, then there was no reason to mention it.

Bush didn't mention Thomas' golf scores, or his singing ability, or his talents as a chef. Bush was not making general remarks about Thomas. He was promoting the idea that Thomas belonged on the Court. Therefore it's reasonable to understand that Bush was focusing on qualities that Bush saw as helpful in a judge.

Actually he was introducing Judge Thomas to the reporters as much as "telling us why Thomas belonged on the Court". While Bush didn't mention Thomas's golf scores he did mention all personal trivia to introduce Judge Thomas, was the fact the Thomas was "a native of Pinpoint, near Savannah, Ga." supposed to be a quality which made him suitable for the Position of Associate justice? How about the fact that Thomas went to Catholic schools?

It was a press conference, the empathy part came from Bush's introduction of Justice Thomas, then Thomas came up and made a statement, then they took questions. Bush summed up his (public) qualifications for judges: "[w]ould he faithfully interpret the Constitution and avoid the tendency to legislate from the bench? " in that same press conference. The question of the qualities Bush was looking for when selecting Thomas for an AJ seat was brought up several times in questioning and never once did Bush say he selected Justice Thomas because of his empathy.


Context, context, context. The quote (I forget the source but it was someone strongly opposed to Bush II) "Bush is great at addressing problems." changes meaning entirely when you add the context "After they've already wreaked havoc."

Oh if anyone is interested in Bush's actual words to judge if I am misrepresenting or misinterpreting (I might be, goodness knows it wouldn't be the first mistake I've ever made, or even made today) the context reasonably complete coverage can be found here.
5.29.2009 12:01am
Falafalafocus (mail):
Jukeboxgrad:


falafalafocus:


Why didn't you post anything on this empathy issue back in 1991? Clearly, you are being hypocrital on this issue. Unless, of course the Volokh Conspiracy wasn't around back then...


Duh. I know "the Volokh Conspiracy wasn't around back then." But conservatives were. And they raised no complaints when Bush talked about empathy. Why not?

It's not that we heard no complaints from Somin. It's that we heard complaints from no one. Why?


I sincerely appologize for misrepresenting your position. After reading this comment, I realize now that you were not claiming that Ilya Somin was being hypocritical. I obviously misunderstood your clear meaning when you wrote this:


somin:


Then presumably you were troubled to hear a president describe a judge like this:

"a delightful and warm, intelligent person who has great empathy"


Not troubled, just not convinced that the empathy adds to his qualifications to be a Supreme Court justice.


But the point is that we suddenly hear "empathy" complaints from you and others, even though we heard no such complaints when Bush used the same word. Seems like a double standard to me.


My appologies for misinterpreting your comment as an accusation of hypocrisy. Then again, maybe I didn't miss it at all.
5.29.2009 8:10am
jukeboxgrad (mail):
one:

he was introducing Judge Thomas to the reporters as much as "telling us why Thomas belonged on the Court"


When you say "introducing Judge Thomas to the reporters" it sounds like it was for the purpose of planning a day of golf together. But that wasn't the purpose. The context was a "News Conference Announcing Court Nominee." Bush began by saying this:

Well, I am very pleased to announce that I will nominate Judge Clarence Thomas to serve as Associate Justice of the United States Supreme Court. Clarence Thomas was my first appointee to the United States Court of Appeals for the District of Columbia, where he served for over a year. And I believe he'll be a great Justice. He is the best person for this position.


And then Bush proceeded to supply supporting evidence: reasons for us to believe that "he'll be a great Justice" and that "he is the best person for this position." And then Bush mentioned a bunch of things, but he did not mention Thomas' golf scores, or his singing ability, or his talents as a chef. Because those things have no relevance to the assertions "he'll be a great Justice" and "he is the best person for this position." The things Bush proceeded to mention have at least some relevance to those assertions.

If Bush was really just "introducing Judge Thomas to the reporters" as a person, and not as a potential Justice, Bush would have indeed mentioned something about Thomas' hobbies and personal interests. But he didn't. That's because it would have been wacky to mention things that are not relevant to these key assertions: "he'll be a great Justice" and "he is the best person for this position."

was the fact the Thomas was "a native of Pinpoint, near Savannah, Ga." supposed to be a quality which made him suitable for the Position of Associate justice?


You're joking, right? When NR wrote a review of his biography, here's what they called the review: "Up from Pin Point." When NR wrote about him in 2007, they again made a big deal about his humble roots, in an article called "The freest black man in America: Clarence Thomas, associate justice from Pin Point, Ga." When WP wrote about him in 1991, they began the article as follows:

A midwife delivered Clarence Thomas to his teenage mother 43 years ago in a wooden house that stood near the marshes. Nearby was the "crab factory," a collection of now-abandoned cinder block buildings where Thomas's mother picked crabs for 5 cents a pound. The birthplace of the Supreme Court nominee had no running water, indoor toilets or electricity, but with four bedrooms was large, even today, for this community.


And this was the result of an explicit strategy:

The White House, despite all the advantages that seemed to ensure Thomas' confirmation, was not taking anything for granted. Just as NARAL's Kate Michelman and her allies talked of mounting an anti-Thomas campaign, the White House was already implementing one. It was to be concentrated on what insiders, who were working on Thomas's nomination at both the White House and the Justice Department, called the "Pin Point strategy." The idea was to emphasize Thomas' character and the fact that he had risen "up from poverty" in Georgia, as one Justice Department official put it.


So yes, "the fact the Thomas was 'a native of Pinpoint, near Savannah, Ga.' " was indeed "supposed to be a quality which made him suitable for the Position of Associate justice." Because the idea was "to emphasize Thomas' character and the fact that he had risen 'up from poverty' in Georgia."

And there is nothing wierd or suprising about this, because "up from poverty" is a theme that also comes up with Alito and SS.

How about the fact that Thomas went to Catholic schools?


Bush tells us why that matters: "His background includes a strong emphasis on education as the key to a better life. And he attended rigorous Catholic schools, where he excelled." Someone who "excelled" at "rigorous Catholic schools" is supposedly smart. The premise is that "Catholic schools" are more "rigorous" than other kinds of schools.

Keep in mind that Bush was not answering questions (in this part of the press conference). He was not making casual remarks. He was delivering a prepared statement, in connection with a major event: nominating a new Justice. This many of the words in his announcement were casual or accidental: zero. Therefore, anyone who is truly concerned about too much empathy on the bench would have noticed that word, and at least have thought of the question: why did Bush say that? After all, Bush could have described Thomas in many different ways, but he chose that particular word. But no one asked that question. Why? Because IOKIYAR.

The question of the qualities Bush was looking for when selecting Thomas for an AJ seat was brought up several times in questioning


Really? "Several times?" Do you have a special unredacted version of the transcript? Because in the transcript I have, there are 18 questions. And this many of those questions are about "the qualities Bush was looking for when selecting Thomas for an AJ seat:" zero.

and never once did Bush say he selected Justice Thomas because of his empathy


That's funny. Bush "never once" mentioned empathy, except for when he did. In his prepared statement, which was edited carefully, and where he could have chosen many other words, but decided to choose that exact word.
5.29.2009 8:12am
jukeboxgrad (mail):
falafalafocus:

Then again, maybe I didn't miss it at all.


Then again, maybe you did. Please consider these two statements:

A) we suddenly hear "empathy" complaints from you and others, even though we heard no such complaints when Bush used the same word.

B) we suddenly hear "empathy" complaints from you and others, even though we heard no such complaints from you and others when Bush used the same word.

I could have said B, but I didnt. For some reason you're acting like I did.

I didn't accuse him of failing to complain back then (although you're accusing me of accusing him of that). I simply noted the general absence of complaints back then. So I was making an accusation of collective hypocrisy, not personal hypocrisy.

Aside from that, it turns out that Somin eventually said he was "not troubled" by Bush's remark. So it's mysterious to me why Bush's remark would lead to a reaction of "not troubled" while Obama's remark would lead Somin to use words like "pernicious."
5.29.2009 9:00am

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