So, who'd you put your money on...

[DCJenn]

Well, Abigail, I think this is one of those times where legal definitions and 'understood' definitions mean different things.

I'd like my judges to be empathic. I would prefer it in fact. That doesn't mean I don't also want them to absolutely follow the letter of the law, but I'd like for them to understand the impact their decisions may have. Not to change their minds or distort their decisions but understand that the law and the people who obey (or more importantly, disobey) those laws may have compelling reasons for doing so. We don't live in a vacuum of law vs. chaos. We've had some pretty crappy legal decisions put forward over the lifetime of this country, after all.

For example, I think you would want an empathic judge to hear your case for bankruptcy. Not that it'll change their mind about their decision but just to make it easier to have to have your life dismantled publicly.

Jenn

[GrayMatterWife]

Well, Abigail, I think this is one of those times where legal definitions and 'understood' definitions mean different things.

Yeah, I realize. It is just annoying for lawyers. Lawyer, liberals and conservatives alike, all know what "empathy" is code for in terms of constitutional interpretational theory. It has a specific imputed meaning. Yet Obama says "empathy" as if he means the common vernacular meaning, to the 260MM Americans who aren't lawyers. He is trying to make his base happy by using an innocuous, if not "positive," layword, while also making is left legal wing happy.

Sure, I want empathetic judges, too, if "empathy" is meant in the common vernacular. But it's not what is meant by Obama. The "empathy" Obama is talking about is not the "empathy" most people think of. Most people would think, generally, that empathy is "being able to understand another's situation and show compassion in the face of that hardship." Obama means, "doing whatever you personally believe is the right thing to do, because you are especially able to 'understand' who is right and wrong, regardless of what the law says." It's about putting the inclinations and persuasions of the judge before the law. And, it's a really great theory of legal justice...so long as the judge is on your side! However, the King's justice sucks if the judge is not "empathic" to you and disregards the law in your favor, because he believes justice is better accorded outside the statute.

Honestly, it's the same silly sappiness Obama always uses--soaring, pretty rhetoric that would charm the spots off a dog, but--scratch the surface--and it means either nothing at all, or the exact opposite of what it appears. He's viciously left-wing agenda-driven, and has managed to convinced everyone that he's a middle-of-the-road...because few people want to look past the talk.

[GrayMatterWife]

For example, I think you would want an empathic judge to hear your case for bankruptcy. Not that it'll change their mind about their decision but just to make it easier to have to have your life dismantled publicly.

I think the best adjective would be "compassionate," but empathetic works, too. I am not arguing against either concept as a personal quality of the judge. I am just noting that the common vernacular meaning of these words is NOT what Obama means. Whether the non-lawyer American public gets this, I'm not sure--but he is speaking in lawyer-talk. His use of the word "empathetic" is very clear: he wants judges who will set aside the law if their "inner convictions" tell them that is not just. Which is a violation of their oath, by the way...but is a common technique for trying to impose your views over those of the electorate, as reflected through the statutes.

It's not a surprise she's often reversed... But, as a Supreme, she can impose this illegimate view of constitutional construction without correction, because there will be no one she must answer to...except the other judges (a big indicator of the validity of her theories will be how many other judges she can get to join in her position).

[Sheherezade]

I am just noting that the common vernacular meaning of these words is NOT what Obama means. Whether the non-lawyer American public gets this, I'm not sure--but he is speaking in lawyer-talk.

How do you know this? Has this been documented somewhere or is it just a hunch?

[NYCHoosier]

I lean a little to the right, but so far I'm okay with this pick. Granted, I have a lot to learn about her so I may change my mind, but she seems open-minded and to take each case as it is. In a few run-downs of lists I've read of her decisions, she seems to strongly guard and defend first amendment rights.

I don't agree with all of her decisions, but I don't expect to with an Obama nominee.

Can we agree that she's a better pick than Granholm?

Oh, also, can someone tell the AP that it's Nuyorican, not Newyorkrican?

[GrayMatterWife]

How do you know this? Has this been documented somewhere or is it just a hunch?

I know this because it's just a part of legal-speak reality. Anyone who's been through a ConLaw I class would get it. There are different theories on Constitutional and statutory interpretation. One of the theories is that the Constitution should be read for its original intent (and no, this doesn't mean that we should go back to counting anyone as 3/5ths a person, thank you Whoopi Goldberg for than inane yet widely quoted remark). It means that the Constitution should not be interpreted to grant rights and privileges outside those originally intended by the Framers. Complimenting that is the idea that statutes should be construed "strictly"--that is, the laws should be interpreted based on the language that the legislature chose to use, not based on what the judge "thinks" the language SHOULD read (provided that there is no genuine ambiguity as to meaning).

Another school of thought is that the Constitution is a "living document" that can be construed and interpreted based on what the reader today thinks it should mean (or, more precisely, have come to mean). So what is true today may not be true tomorrow, if the interpreter changes context. Related to that is the idea that judges have an obligation to interpret the laws past the words of the actual statute, to "give them meaning" beyond what is the umambiguous intent of the legislature.

To comment that a key factor for selecting a judge would be that judge's ability to "empathize" (as versus apply the law as written, or as versus carefully adjudicate the issues as raised in the law, or something like that) is just a politically polite way of saying, "empathize with the way that I want the law to be interpreted." That is, not the way it is written, but the way Obama wants it to work. From a lawyer's point of view, there is no other explanation that the word could mean. If you are using this as a measure of how to interpret the Constitution,and how to read statutes (which, of course, is what a judge or justice does), there is nothing else that "empathize" could mean. It means: I am far left of center on the spectrum of Constitutional interpretation and statutory construction.

I'm sorry--I don't have much of a better explanation. I guess I just sort of have to offer my professional experience as my authority. I do this--legal interpretation--all day long, every day. This is my job (to assist the judge in interpreting statutes and applying the law). I guess I just know the lingo and suggestions, probably to a degree that is mind-numbing to others who are less interested.

Frankly, I don't have an issue with Sotomayor in terms of how she is presenting herself. She is being quite honest, from all I can see. It is Obama who is being less than forthright. Instead of using phoney-baloney phrases that sound nice but mean radical change, he should be honest with Americans: "I believe that the previous Administration's commitment to judges who employ originalism to the Constitution and strictly interpret the statute based on the words of the legislature are misguided and will not achieve the goals I have set. Therefore, I propose to place judges on the bench who attach meaning and give purpose to the laws, beyond the scope of what is written. I believe greater truth and better laws lies in that judicial theory." Instead, he is arguing, by implication, that judges who are originalists or strict constructionists are devoid of the lawyman's concept of "empathy"--which is ridiculous. And, at the same time, he reassures the Left that he is picking someone who will empathize with those things he believes are worth of empathy.

Watch what you wish for, though. "Empathy" is desirable in a judge only when that judge happens to empathize with you. If the standard for Constitutional and statutory interpretation is hyper-individualized to the judge, rather than more objectively standardized, then "empathy" is a positive character trait that will ensure "correctness of interpretation" only when the judge is on your side.

[GrayMatterWife]

Can we agree that she's a better pick than Granholm?

Oh, also, can someone tell the AP that it's Nuyorican, not Newyorkrican?

I'm 110% with you on the Granholm thing. ABSOLUTELY.

And on the whole Newyorkian thing...MAN! Did I not get that. I am such a nerd! I sat there going: "newy -orki am. Ok, is that a philosopher? Not a legal scholar." I was about two seconds from wikipedia before I got it. DUH.

[NYCHoosier]

I'm 110% with you on the Granholm thing. ABSOLUTELY.

And on the whole Newyorkian thing...MAN! Did I not get that. I am such a nerd! I sat there going: "newy -orki am. Ok, is that a philosopher? Not a legal scholar." I was about two seconds from wikipedia before I got it. DUH.

If you had put Newyorkrican into wikipedia it would have said "do you mean Nuyorican?" ...which makes the mistake even more annoying.

That said, a Nuyorican is a New Yorker of Puerto Rican descent, so they had the right sentiment. ...just the totally wrong spelling.

[GrayMatterWife]

If you had put Newyorkrican into wikipedia it would have said "do you mean Nuyorican?" ...which makes the mistake even more annoying.

That said, a Nuyorican is a New Yorker of Puerto Rican descent, so they had the right sentiment. ...just the totally wrong spelling.

Yeah, I'd heard the term pronounced orally before, but I hadn't ever seen it spelled out. So I somehow saw the spelling and broke the syllables out completely wrong. I think I am so used to seeing Newt Gingrich's name in the news lately (with all his commentary and book peddling) that I automatically put the "New" and "y" together, as it "New" couldn't be a stand-alone syllable or something. Who knows. Another moment where my NYer sister just rolled her eyes at my pedestrianism. ah well!