Monday, 4 May 2009

Ten Thousand Gleaming Robo-Judges, Clutching Shotguns

Senator Orrin Hatch accidentally reminds us all why the Republicans are so dangerous whenever they get to exercise power (h/t to Steve Benen).
[President Obama's] also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.
I am genuinely horrified by the idea that there are people out there who are displeased by the idea of an empathic judge. This goes beyond the fact that, as I've argued in the past, I think empathy should an essential pillar of human life. If there's one place the ability to understand somebody's emotional state, it's when that emotional state has led them to commit a crime, and they need to receive a fair sentence (or, in the case of the Supreme Court, when it needs to be decided whether a given sentence was fair). More than that, Hatch implies he not only doesn't like the idea, but that the mere suggestion must be a code for a judge that will attempt to re-jig the application of the Constitution. Empathic judges are not only a bad idea, they are a priori less trustworthy when it comes to considering the constitution.

I'm not by any means suggesting empathy is a sufficient condition for being a good judge, but there are a lot of reasons to fear the suggestion that lack of empathy might be a necessary one.

Right, I'm off for my quick tour of the South. See you all on Friday.


Senior Spielbergo said...

Been pondering this post for a while as it’s a bit of a complicated one. But what the hell I’ll just wade in and you can do what you will.

Point 1: I’m not in any way convinced that what he is saying is that Empathy = Bad Judge, which appears to what the central crux of your post is about. What he is actually saying is that when certain other people use the term Empathy in this context, in his view they are actually talking about something entirely different. In other words his view is not Empathy = Bad, but rather “Other people are lying when they are using the word empathy, as what they are actually meaning is…”. Now you can argue that is a complete load of Bull, and you may well be right, but it is a bit of a different point and therefore should be made rather than your Republicans = Evil because they think Empathy in a judge is wrong line, because that clearly isn’t the point being made.

Point 2: Empathy in a Judge – Hmmm, a tricky one I think. Yes in terms of sentencing empathy is clearly important, but at the same time complicated to manage. Where is the empathy directed for example? To take a criminal case, on the one hand you will have the accused that has his story to tell, and on the other you have the victims who will also have a story. I think you can certainly get issues whereby you can get one Judge who feels plenty of empathy for the accused, thus giving a light sentence, while another feels empathy for the victim and for the same circumstances gives a much harsher sentence. You get a similar issue in civil cases whereby one party or the other may receive more or less empathy and thus effect the eventual size of settlement.

Then you have the other part of their job when they are called to make a decision in respect of a legal argument, or a point of law. At this stage you specifically don’t want the Judge to be emphasising with one side or the other, and rather just be considering the facts.

I think in my view, the best Judge is someone who can demonstrate the best of both worlds. Someone who can be the whole Robo-Judge thing and put their emotions aside when required and deal with the facts, and yet when it is appropriate have the ability to emphasis with both parties, being able to put themselves in their place, while at the same time not allowing any personal views to interfere with that. So Empathy = Important, but must be controlled empathy.

Point 3: An aside, but not really as let’s face it, it’s all about Roe v Wade, and even if it isn’t ALL about it, I think it’s 99% of it. Now putting aside my personal views in relation to abortion, I do think Roe v Wade is a great big cock up of epic proportions. Ignoring the content, and the never ending legal argument of if the Bill of Rights can be accurately applied to something never envisaged by the authors, my view can really be summed up quite simply. ANY law whereby if you present it to a panel of independent judges whose own personal views are slightly left of centre gives you one result but if you present it to a panel of independent judges whose own personal views are slightly right of centre gives you the exact opposite result is clearly a law not fit for purpose. You shouldn’t be able to switch out a couple of members of the Supreme Court and then get a completely different law than what was there yesterday. Law requires certainty, and it shouldn’t be a potential ping pong match whereby there are arguments both ways and ultimately it’s down to the combined personal feelings of a few people which way the law actually applies.

Personally I think if you want to legalise, or criminalise any activity on the Federal level then you clearly need to pass a nice clear Federal law, or Amendment to the Constitution (depending on what is required) which specifically relates to that scenario and isn’t open for any “interpretation battle”. Or you can leave it up to the States, who have their own democratically elective legislative branch and allow them to make up their own mind. I guess in that regard I’m for the overturning of Roe v Wade, but I’m not in the sense that I don’t want it done via another Court Case following some new Judges being appointed, but rather the Country as a whole should make up it’s mind and come up with appropriate legislation one way or the other depending on what the people actually want to do.

SpaceSquid said...

Point 1: He's taken a list of adjectives given by Obama to describe a judge, and then argued (without any proof, mark you) that it's a code-word. I recognise he isn't strictly speaking suggesting empathy is a bad thing in a judge, he's saying that anyone suggesting it as a good quality is secretly talking about something else.

The point, though, is that the end result is the same. If you agree that empathy is a good quality for a judge in principle, but that any search for that quality in practice is an attempt to sneak a reactionary judge onto the bench, then how are you any different from the permanent secretaries in Yes Minister deciding equal hiring practices for women are a great idea in theory, but a terrible idea for every single department when considered separately? You still end up excluding the empathic (or at least prevent them from using their empathy as a reason to hire them, which is little better), and at the same time get to drag a positive quality through the mud.

Point 2: I agree entirely that empathy can't be enough on its own, and that it needs to be properly applied. A good judge needs empathy and they need wisdom, and the two should inform each other. Fortunately, however, no-one to my knowledge has yet argued that "wise" is a codeword for other, undesirable qualities.

Point 3: Whilst I agree that a law shouldn't go one way or another depending on the mood of the court, I would argue that such is simply just human nature. I don't think that's something you can avoid by rewriting the constitution, or by giving more power to the states, that would just change the battlefield.