Empathy

The latest conservative buzz word is empathy. In particular the horror they feel at the prospect that a federal Judge might have the quality of empathy. The reason, according to such conservative leaders as Orrin Hatch, is

...the likelihood of a partisan debate over the president's first nominee for the high court already is clear, with a leading Senate Republican warning that Obama has spoken of finding a nominee with "empathy.''

"Usually those are code words for an activist judge... who is going to be partisan on the bench,'' said Sen. Orrin Hatch (R-Utah), on This Week. "We all know he's going to pick a more liberal justice.... A pro-abortion justice - I don't think anybody has any illusions about that.''

The implication here is that, to a conservative, and empathetic judge is going to be one sided in favor of liberal causes. Other conservative commentators have taken an even dimmer view of empathy in a judge. See, for example, this article from CAP. It would seem that to conservatives an empathetic judge must be completely unfair.

At first thought, however, this should seem like a pretty odd attitude towards empathy in a judge. The meaning of the word empathy would hardly support this conservative belief. Take, for example, this definition from dictionary.com. Empathy is "the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another." So, in conservative world, if a judge is able to identify with the attitudes of others in general, he or she will be able to understand the position of both litigants then she is unfairly biased, but if she can only appreciate the attitudes of a litigant like herself she will be fair. That doesn't make sense. In the real world things work the other way around.

I do not believe, however, that this is a dishonest put on by conservatives. This is really the conservative view of things. To a conservative the proper way to organize society is around privilege (see here and here). A judge ought to be favorably disposed toward the conservative and biased against the opponent of any conservative. To have judges that will consider the conservative's position on par with his opponent is indeed, to a conservative, unfair.

The Supreme Court

Read about Clarence Thomas' participation on the Supreme Court.

I've long thought that we could replace Clarance Thomas with a mop and give Scalia two votes, no one would notice for six months.

SCOTUS on Abortion Ban

By a narrow majority 5-4 the court has upheld the ban on so-called 'partial birth' abortions. For those who wanted to "keep our powder dry" during the Alito and Roberts confirmations, was it worth it? What, I am left wondering, did we ever do with that dry powder? I can't think of a thing.

My Opposition to Alito

There are a host of reasons to oppose Alito as a SCOTUS justice. However, one thing stands out for me as, in itself, sufficient to oppose his nomination. He has taken the position that

Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress,...

to argue for the value of presidential signing statements and how the court should consider them as equal to legislative intent. Anyone this ignorant of the actual US Constitution should not sit on the highest court. The US Constitution clearly states in Article I section 7

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

If the President fails to sign the bill it becomes law "in like manner as if he had signed it", his signature, his approval is unnecessary so long as congress stays in session for 10 more days. Even if he disapprove's congress may overrule him. Alito's claim that "the President's approval is just as important as the House or Senate" is nonsense. The President's approval is completely unnecessary, Congress's approval is essential. These are not equal.

Meir's papers

The AP is reporting that Bush is refusing to turn over to the Senate papers relating to his conversations with Harriet Miers. Those documents will not be made available to the Senate for their review of her nomination to the Supreme Court. Bush is claiming that the requested papers are covered by attorney client confidentiality. Setting aside the fact that the request was for "non-privileged documents", this should be a deal breaker on her confirmation. If she is that close to the president, then she should not be appointed, much less confirmed, for the Supreme Court. The vital role of the court is as an independent review of the other two branches. Meir's is clearly not independent of the current executive.

For what it is worth, I'm not convinced that she is a jurist with whom I would object on ideological grounds. It is just not clear how conservative, and on what issues, she is. But at this point, on qualification, transparency, independence and experience, it would be a decidedly bad precedent to confirm her to the bench.

No Matt, No

This article by Matt Yglesias is the sort of thing that will drive me crazy. The bit that got me is this, in response to the possibility that Joseph and Valerie Wilson might sue George Bush.

If this happens, I think it would behoove liberals to recall that we were right the first time on this issue and that if it comes to it, the Supreme Court ought to reverse their obviously mistaken ruling in the Jones case. It would be emotionally satisfying, of course, to see the GOP taste some of its own medicine on this point, but the Court's contention that the lawsuit wouldn't interfere with the president's official responsibilities was clearly wrong and the judicial system shouldn't be encouraged to compound the error for the sake of consistency. Generally speaking, if complicity in illegal Plame-related conduct extends all the way up to Dick Cheney and George W. Bush, that's a matter properly left to Congress or else until 2009 when they're out of office.

The strictest sense I agree that the Supreme Court decision that Clinton vs Jones would go forward was a bad decision. However, it seems sometimes that liberals insist on going into a street brawl and then trying to fight by Marquis of Queensbury rules. The SC decision was a 9-0, rather overwhelming and leaving very little room for it being overturned. Which three justices would join Meirs and Roberts to change the outcome? This gives we on the left rather a lot of room to just accept defeat in the court and let Joe Wilson go ahead, with our blessing. It would be absurd for us now to support a reversal just to let Bush and Cheney off the hook. For God's sake, if we put up with that, the SC would just reverse itself again the next time a Democrat was in office. No, that cannot be tolerated.

Now if Matt wanted to get the Republican Congress to pass legislation or start a constitutional amendment process to reverse the decision, I might be more sympathetic. But, please, if the country does change course on letting civil suits against sitting presidents go forward then we Democrats need to force the Republicans to admit, public ally, that they were wrong when Clinton was in office.

Voting Yes on Roberts

The link takes you to a Kos diary. the diary argues for Democrats in the Senate to vote yes for Roberts as a strategy. I really believe that folks arguing for this option have their hearts in the right place and are trying to come up with the best options for improving the status of the Democratic Party. However, I really don't understand this argument. As things stand I see no value for Democrats to "seem reasonable". All the polling data and everything else I can find out about the mood of the country indicate that people:

Think that George Bush is taking the country in the wrong direction.

Want to see the Democrats stand up to Bush and challenge him.

Are turning away from the Republicans but

Not yet turning toward the Democrats.

All this leads me to believe that the best thing for the Democrats to do is to take a level headed principled stand against John Roberts.

I'm not talking about filibuster here. I accept that the Democrats should not appear to be stopping the functioning of the courts. However, whether the Democrats vote for or against Roberts will have no affect at all on the operation of the Government. Furthermore, the Democrats could make clear that if the Republicans want the votes of Democrats then the Republicans will have to work with Democrats.

I agree that having Roberts on the court will not be disastrous, but it just seems that although the country would like to have a clear alternative to Bush and the Republicans the Democrats have one again taken the opportunity to tack as close to George Bush as they can. It just seems to be the wrong strategy.

Also, much of the talk about picking our battles sends, I think, exactly the wrong message. Everyone knows that the Democrats don't want John Roberts to be Chief Justice of the Supreme Court. The fact that we won't make a clear statement to that effect does not make it any less of a defeat for us. Rather we appear to be completely cowed.

Thought on the Roberts nomination

I'll get to Roberts in a moment but first, Matt Yglesias over on Tapped has a good response to Byron York regarding the Mike Brown nomination as head of FEMA. Seems democrats did little to investigate Brown and approved him. As Matt says, however, "I'll happily cop, as a personal matter, to having simply assumed that the Bush administration didn't appoint a totally unqualified hack to this important but low-profile job and to have somewhat erred in doing so." Now given that the right wingers are arguing that it's our fault for letting such an unqualified hack get confirmed I think we would be well advised to insist that we need to investigate John Roberts very thoroughly.

Indeed the question I would like to pose to the Bush administration is this "So you're saying that John Roberts is every bit as qualified to be chief justice of the Supreme Court as Mike Brown is to be head of FEMA?"

Certainly the Democrats need to reject the Republican argument that the Senate must accept this nomination just on President bush's promise that he is really qualified. The nomination process has clearly broken down, the confirmation process must now be that much more thorough.