July 17, 2007

Obama on Supreme Court appointments: "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. And that's the criteria by which I'm going to be selecting my judges."

Speaking at a Planned Parenthood conference today, Obama was critical of the way Supreme Court confirmations only wade into the shallow water of character -- "He loves his wife. He's good to his dog."

He criticized Chief Justice John Roberts for saying "he saw himself just as an umpire":
“But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."
Hmmm.... you’ve got to look at what is in the justice’s heart. Great way to distinguish yourself from Bush!
I've known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet's mother is proud of her today, and I know her father would be proud of her, too. I'm confident that Harriet Miers will add to the wisdom and character of our judiciary when she is confirmed as the 110th Justice of the Supreme Court.
But we know what this "heart" business means! It means that the President (or would-be President) understands that judging won't be neutral, that the human being doing the judging, no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion. So "heart" matters. The question isn't whether "heart" counts. It's: which "heart" do you want?

77 comments:

Internet Ronin said...

I see. So the Constitution doesn't matter as long as one's heart is in the right place. Wonderful.

Just what does this remind me of? Its on the tip of my tongue. "In your heart you know he's right."? Not quite. "The ends justify the means."? Perilously close. Oh well, I'll probably remember in a minute.

Internet Ronin said...

Oh, I remember now! "We are a nation of laws, not of men." I guess we can forget about that in an Obama Administration.

Seven Machos said...

Arguably, we need members of Congress "to recognize what it's like to be a young teenage mom." Judges are supposed to interpret the law. As a former constitutional law professor, Obama knows this. He's just pandering.

The Drill SGT said...

what IR said

Internet Ronin said...

Paging Van Buren Benny. Obama is playing your song.

Ann Althouse said...

The word "heart" in the song "You've Got to Have Heart" is not the same as this. Obama is talking about empathy. Bush was talking about inmost belief (which is also true of "In your heart, you know he's right"). The song is about courage and optimism (as in the phrase "take heart").

Ann Althouse said...

The notion that you can simply "follow the law" just doesn't work in hard cases. You can try, but in the end, you will have to respond to intuitions. It is not possible for the brain to resolve difficult questions without an emotional component.

Palladian said...

The idea of electing people to be emotional on my behalf is extremely distasteful.

I'd like future Justices to understand what's it's like to be a normal human, what it's like to be an American, what it's like to be a Justice. The rest, well, who cares? But he was speaking to Planned Parenthood so he must have been thinking: "these are women, and women really eat this emotion stuff up! Women can understand feelings better than ideas! Hell, that should be the mantra of my campaign: My Justices will feel the law at you!"

Eli Blake said...

There are some legal challenges in the future where it will be important though for judges to be able to 'feel' what those in their courtrooms are feeling. To cite one example (which I suspect something like this will end up in court sooner or later), I wrote a post last night on Oscar Pistorius, an athlete who uses artificial prostheses and is trying to compete in the 2008 Olympics.

The issue is whether we have now crossed that threshhold in which we've gotten so good at making replacement parts, that we haven't just reached parity with natural human abilities, but are now making people better than they were before.

Pistorius' case may be a topic for heated debate right now, and if he is getting an edge it is a miniscule one (though 'miniscule' in the Olympics can make all the difference) but suddenly sports is going to have to confront this issue in a big way.

What I wrote last night summarizing the dilemma for the differently abled, who will now still be 'differently abled,':

And what of the future? If prosthetics are just as good as human muscle and nerve today, then it stands to reason that it won't be that much longer before standard prosthetics will be much better than human parts. What do you do then? Create an artificial 'Olympics' (just as we've had paralympics for years) for people who can do things that others just can't? That would be a tragic trick for the differently abled-- to no longer be segregated in athletic contests because they weren't physically as good as or able to compete with others, but rather because they are stronger, faster and physically superior athletes than their friends and neighbors.

The full text of the post is at The Bionic Man

Gahrie said...

The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

But hasn't the left spent the last thirty years telling us that you can't understand what it's like to be poor, African-American or gay...unless you are poor, African-American or gay?

So is Obama telling us he's going to appoint old, handicapped, poor, gay African-Americans to the Supreme Court?

Paging James Watt.

Ann Althouse said...

Palladian said..."The idea of electing people to be emotional on my behalf is extremely distasteful."

Which is an emotional reaction. I would suggest then supporting the appointment of judges who share this emotional tendency to feel that it is distasteful to impose on individuals, which may lead to a narrow construction of ... of what? Government power? Individual rights? Already, you need to be more specific.

"I'd like future Justices to understand what's it's like to be a normal human, what it's like to be an American, what it's like to be a Justice. The rest, well, who cares? But he was speaking to Planned Parenthood so he must have been thinking: "these are women, and women really eat this emotion stuff up! Women can understand feelings better than ideas! Hell, that should be the mantra of my campaign: My Justices will feel the law at you!""

Again, I must say, you are expressing emotion. You feel contempt for this patronizing and offended by dividing people up by sex and so forth (or whatever). You would then probably like a judge who had similar reactions, which would perhaps lead to various relevant intepretations of statutes and constitutional clauses.

My point: it's inescapable. You might love your judge so much that you think oh, my judge is neutral, unlike those other judges... but I would say that too is emotional.

Boaz said...

We aren't a nation of laws, we are a nation of feelings. (liberal, do-gooder feelings)

ricpic said...

From James Madison to this shallow shmuck.

Gahrie said...

Intellectually, I want a justice who will interpret the Constitution and the law dispassionately. The Supreme Court was designed in such a way as to remove it from passions as much as possible.

Emotionally, I want a justice who will move Supreme Court jurisprudence away from creating rights.

Palladian said...

"My point: it's inescapable. You might love your judge so much that you think oh, my judge is neutral, unlike those other judges... but I would say that too is emotional."

I've had my emotions surgically removed!

chickenlittle said...
This comment has been removed by the author.
Hey said...

That was the absolute dumbest comment any presidential candidate has ever made. Look at prospective Justices. Look at current justices. If Obama thinks that THIS population is incapable of understanding what it means to be OLD, then he must have a very idiosyncratic definition of OLD!

It is exceptionally common for justices to die in office. This is sole place where we don't think it odd that an 80 year old has a full time job. But if they can't understand what it means to be old, then I am even more scared of his emoting justices than I ever thought possible!

The Emperor said...

Sounds like an Obama court might find a constitutional right to a single-payer health care system. Ugh.

Pogo said...

Re: "It is not possible for the brain to resolve difficult questions without an emotional component."

The debate then is over those who favor judges who can limit their irrational responses and judge the case before them on its merits and according to precedent, versus Obama, who wants, it appears, a judge who supplants the elected legislator and creates whatever law he damn well feels like, according to his unaccountable empathic whims.

Of course, the latter is not an American Justice, but the model exists in the EU and the Politburo.

Mortimer Brezny said...

versus Obama, who wants, it appears, a judge who supplants the elected legislator and creates whatever law

I think Obama is saying (and I haven't read his comments) that in certain cases there is no law and the question is what your guiding principles are.

Beth said...

It is not possible for the brain to resolve difficult questions without an emotional component.

If it were, we could replace those nine salaries, with their attendant staffs, with one good computer and a few programmers.

Beth said...

But hasn't the left spent the last thirty years telling us that you can't understand what it's like to be poor, African-American or gay...unless you are poor, African-American or gay?

As one on the left, am I supposed to believe that? I don't. And I don't think Obama means that, not if he's using the word "empathy," because "to empathize" is different from "to identify with." As a literature major and instructor I've encountered the dictate gahrie cites, but time and time again, it is defeated by stories by writers who show imagination, and empathy, in telling creating characters whose identity they can never share.

Simon said...

Ann,
Respectfully, it's not good enough to say "no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion" - that merely restates that Judges are human. But the correct response to acknowledging the potential for sin is not to discard the aspiration to virtue and dive in head first.

We know Justice Scalia occaisionally parts ways with his judicial philosophy -- but we can only know this because he has a defined judicial philosophy that provides a metric against which to judge his determination in a given case. By contrast, it would be meaningless to say that Justice Breyer's ruling in case X was at variance with his judicial philosophy. You've talked about this before,I think, on HHTV with Amba, that it may be better to have a hypocrit because at least they know they're doing something wrong and there's a standard to hold them too.

I accept that there are cases - particularly statutory cases - where any neutral judicial philosophy will break down. I even accept that there will be constitutional cases that suffer from the same problem (I had played with the idea of writing a paper casting originalism as a kind of quasi-declaratory theory of constitutional law, and I've not given up on the project, but I've come to realize that while many constitutional provisions are susceptible to one interpretation, others are susceptible to more than one interpretation and more than one construction within the realm of reason, at least when taken purely as an original matter). Nevertheless, I submit that those cases are rare. They are not the norm, and they are not 5% of the caseload. In most cases, there is a right answer directed by [the original meaning of the] text, the structure and the accumulated body of precedent, or at very least, those things provide guidance that provides a range of reasonable answers while excluding other answers. Of course, judges will be tempted to be lead astray, to manufacture opposing precedent where it doesn't exist (as Justice Breyer showed recently in School Cases) or to set it aside where it does. But again, that only shows that judges are human beings. It doesn't mean we should abandon the platonic ideal of ajudication by neutrally-derived neutrally-applicable principles.

"Empathy" isn't a judicial philosophy, and what troubles me is that looking behind this, we see at best the suggestion that the meaning of law should rest on how sympathetic the litigants are, and at worst, the suggestion that judges should abandon that platonic ideal just mentioned.

EnigmatiCore said...

If we need judges who have heart, would that be an admission that Congress, which has been controlled by Democrats more often than not, does not have heart?

Personal preference here-- I would much prefer our members of Congress, our President, and our members of the Supreme Court to each have a brain. This is much more important than having a heart.

Palladian said...

"If it were, we could replace those nine salaries, with their attendant staffs, with one good computer and a few programmers."

While I'm sympathetic to such an idea, I have to disagree; human intelligence is not solely emotional, nor is it currently replaceable by a computer algorithm. Humans have much more to offer than a simply emotional response. A reasoned and rational decision, even if it is informed by emotions, is not reducible to simple emotion.

I do like the image of the Constitution as an algorithm and the Justices as the IT people who maintain it.

Simon said...

Mortimer Brezny said...
"I think Obama is saying ... that in certain cases there is no law and the question is what your guiding principles are."

If that's all he's saying, then I can agree with that. But, first, I think he massively overstates how common those cases are (at least at the appellate level, and certainly at the Supreme Court level). And second, I worry that what he's really saying is that the exception ought to swallow the rule: I don't think he wants a judge who has the right kind of conscience to follow when the law is unascertainable, I think he wants a judge who follows the law only when it's inescapable.

chickenlittle said...

Obama said: "The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

He erred (in my view) by not saying "And that's some of the criteria...",or "we need to add other criteria like..."
This issue is far too important to cut him slack, and I hope he clarifies.

MadisonMan said...

I do like the image of the Constitution as an algorithm and the Justices as the IT people who maintain it.

Is Congress the Programming staff trying to implement the algorithm, and writing code chock full of bugs, or is Congress is a hacker?

EnigmatiCore said...

Congress is the Dungeons and Dragons parents who forgot to feed their kids and change their diapers.

Ignorance is Bliss said...

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom.

I'll see your empathy for the teenage mom, and raise you empathy for the unborn child.

The problem with relying on emotions to decide the tough cases is that the reason they are tough is because there are emotional arguments on both sides. That is why they are best decided by the political process.

Seven Machos said...

Althouse, I disagree adamantly with what I understand you to be saying. In my view, it is at the trial court level that these emotions and passions come into play. The factfinder -- judge or jury -- must take into account the totality of the circumstances when deciding. That means everything at trial plus emotion, a sense of justice and fair play, and everything else under the sun.

And, I add, this is an idea that I got from the most liberal law professor I ever had.

At the appellate and the Supreme Court level, the facts are done with. The appeals court is dealing with law, coldly and unemotionally. And, at the Constitutional level, the law is written. The judges have no ability to change it. They must yield to the legislation.

What am I missing here?

Harkonnendog said...

We need judges with the heart and empathy necessary to understand what it is like to be a PRE-teen mom, bound to a wheelchair, with an IQ under 40, a mountain of credit card debt, and terrible toe jam.

Those judges blow the judges who only have the heart and empathy to understand teen age moms away.

PatCA said...

What Obama is saying is the same tired old song: if you can claim victim status somehow and have people feel sorry for you, you are accorded privileged status under the law.

dick said...

Sorry but I cannot possibly agree with this. He needs somebody who's got the heart, etc, at the legislative level, not at the judicial level. If we have them at the judicial level, how can we ever get reasonable precedents for judicial decision making. If everything is determined based on the heart, the empathy, etc, then anyone who is a WASP male is dead in the water the minute he gets to court. Unbelievable that a candidate for that office should even think that this is valid criteria for selecting judges.

Christy said...

Are we talking here about the difference between Sense and Sensibility?

P. Rich said...

"It is not possible for the brain to resolve difficult questions without an emotional component."

Your hormones are negatively affecting your ability to reason, Althouse. Aparently you believe that's a good thing.

Simon said...

P. Rich said...
"Your hormones are negatively affecting your ability to reason, Althouse. Aparently you believe that's a good thing."

Not every question can be resolved through pure reason. That's the fundamental animating premise of most of Oakeshott's work, it seems to me. The issue isn't whether a question can be resolved without it triggering an emotional reaction, it seems to me, the question is whether - accepting the imperfections of humanity - a jurisprudence can be developed that minimizes the role of emotional reactions and provides a meaningful standard against which a result can be measured.

Seven Machos said...

Is it really necessary to bring the gender angle of the arguer in?

vnjagvet said...

Litigation by definition has at least two parties.

Are we to understand that cases are to be determined by the strength of collective empathy of the judges considering the final appeal for one party or the other?

Somehow, my professors neglected teaching me this philosophical approach.

And I went to a liberal Ivy League law school.

Jeff said...

Won't somebody please think of the children?!?

lee david said...

I would like my judges to have wisdom.

More empty platitudes from Obama. I'm surprised that suit hasn't collapsed in a heap on the floor, it's so empty.

Zeb Quinn said...

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."


Why am I thinking that his judicial philosophy as applied and in practice would color far more than a mere 5% of the cases?

Sloanasaurus said...

It's good to know that if you are white (or asian), if you are married, if you work hard, if you follow the law, and if your parents did the same - Obama is not for you.

PatCA said...

Well, said, Christy!

Jeff,
We can't "think of the children" in this particular stump speech--that would conflict with the empathy for the young teenage mom seeking the help of Planned Parenthood to, you know, terminate her progress towards becoming that young teenage mom, wink, wink.

Michael said...

I don't think replacing Lady Justice's blindfold with a bleading heart is what our founders intended.

And I don't recall seeing her with her finger on the scale, biasing it in favor of whomever tells the saddest story.

John Stodder said...

Yuckie.

Leaving aside all the good points made above, I think this comment is politically inept.

"Teenage Mom" as the symbol of why liberalism is needed is seriously out of date. It was a Democratic president who took away the economic incentive to be a teenage mom. If Obama thinks he's going to win the Democratic nomination as a bleeding heart liberal, I think he's mistaken, and showing his inexperience.

The idealistic liberals don't use the "teenage mom" as the rallying point for universal health care. This is now a movement seeking to rally working people, such as Wal-Mart employees, to their cause.

But equally important is the mission to tie America down within a framework of binding agreements so that foreign policy/military unilateralism becomes illegal, henceforward.

And then there are the special interests to take care of. Teenage Moms don't tend to be union dues-payers. They're too busy to care about global warming. They'd love the idea of winning $200 million in a lawsuit, but they don't realistically see themselves in that position.

Teenage Moms are so 1988!

hdhouse said...

If you care to read carefully what Obama said he truly means 95% intellect (job skill) 5% heart (when the job skill fails to find the answer).

Harriet Miers was perhaps a good heart (30%?) which left 70% skilled...but no matter, Cheney orchestrated her demise.

What do you want? 100% dispassion? Then do away with oral arguments..if it isn't in the brief tough luck. Perhaps we can get a CRM type of system that simply can handle justice electronically.

This remark, about compassion, will just bring out the very very worst of comments as noted in

"Sloanasaurus said...
It's good to know that if you are white (or asian), if you are married, if you work hard, if you follow the law, and if your parents did the same - Obama is not for you."

It is just this type of pitifully idiotic remark that will spring forth...endless Rush Limbaugh type soundbites, ohhh where is the rule of law..

All this by the way, after Harriet Miers stiffed congress by not even showing up....they should arrest her stupid butt and toss that one in jail....

ohhhh where is the outrage on the GOP side? because Obama wants a little compassion or one of the last supreme court nominees failed to appear?

hdhouse said...

PatCA said...
What Obama is saying is the same tired old song: if you can claim victim status somehow and have people feel sorry for you, you are accorded privileged status under the law."


I assume you are speaking of Scooter Libby. Right?

Paul Zrimsek said...

There's a reason why the old legal proverb doesn't say "Hard cases make terrific law". Give me cold-hearted bastards on the bench who realize this, and make as little law in hard cases as they possibly can.

P. Rich said...

Simon:

That humans are imperfect and often allow feelings (and the attendant chemicals) to affect reasoned judgment is not the point, it seems to me. And Oakeshott is only one of many who have addressed cognition and emotion in the same context, usually with more science as opposed to philosophy - though the notion of "emotional intelligence" is somewhat trendy in certain circles, the same ones that emphasize the importance of self-esteem in education.

The original question posed, or implied, is whether an oft-demonstrated emotional state should be valued in judicial selection, and emotion deliberately elevated above reason, in a significant number of legal issues in the highest court in the land, one charged with answering constitutional questions. I believe "yes" is a ridiculous answer, as is the situation and supporting argument, one obviously intended to manipulate those who "think" with their glands.

seven machos:

Just in case you were commenting on my previous reference to hormones, know that men actually have them also and allow them to intefere with reason in exactly the same way women do.

My simple pet theory: Feeling (F) Types don't recognize the negative effects of feeling (their normal state) on brain function nearly so much as Thinking (T) Types who regularly struggle to deal with what passes for F "logic".

Simon said...

Michael said...
"I don't think replacing Lady Justice's blindfold with a bleading heart is what our founders intended. And I don't recall seeing her with her finger on the scale, biasing it in favor of whomever tells the saddest story."

Indeed - whatever happened to "I will administer justice without respect to persons, and do equal right to the poor and to the rich"?

Simon said...

hdhouse said...
"What do you want? 100% dispassion? Then do away with oral arguments..if it isn't in the brief tough luck."

How does oral argument relate to the matter at issue?

Paco Wové said...

Gahrie: "But hasn't the left spent the last thirty years telling us that you can't understand what it's like to be poor, African-American or gay...unless you are poor, African-American or gay?"

Beth: "As one on the left, am I supposed to believe that? I don't. ... As a literature major and instructor I've encountered the dictate gahrie cites, but time and time again, ..."


Beth, you're just demonstrating Gahrie's point here. You obviously have encountered people telling you that -- and I doubt those people identified as conservatives.

Paco Wové said...

"How does oral argument relate to the matter at issue?"

It doesn't. Hd's just flailing around for something to throw at the evil righties.

SteveR said...

All I hear him saying is he will use a litmus test and he's telling you which ones.

the empathy to recognize what it’s like to be a young teenage mom

All teenage moms are young.

Triangle Man said...

I am reminded of the Owen Wilson line from the hit movie Wedding Crashers: "You know how they say we only use 10 percent of our brains? I think we only use 10 percent of our hearts." Wilson's line was a line, and so was Obama's. They're both playing the same game, but for different prizes. Naturally, Giuliani's "strict constructionist" promise is just another line meant to woo a different target.

Kirby Olson said...

All the resources of the state should be used to mollify out of wedlock moms who have no idea who the fathers of their seven children are, to make sure that they don't suffer at all for their ingenious choices.

Henry said...

Does anyone remember when David Souter seemed scary? Here was this unmarried hermit living up in Weir, New Hampshire with sheep for neighbors. The Bush team had to scramble just to find an old date to prove he was human. (Apologies to Florence King for this poor paraphrase of one of her jabs.)

Now Guliani loves opera. Opera opens up the heart to grand passions. Opera brings you unforgettable characters - murderers, suicides, drunkards, lovers, clowns. How's that for inducing empathy!

Simon said...

Henry - I very much do. I have a reproduction on my office wall of NOW's infamous flyer that reads "STOP SOUTER OR WOMEN WILL DIE."

jeff_d said...

I think Obama was pandering, as the context of the teenage mom remark (and the audience) suggests that he was implying his kind of Supreme Court Justice would do what's best for the teenage mom rather than what is the most faithful interpretation of the constitution. This is a plug for results-oriented jurisprudence and I agree with all the comments that criticize it.

Nevertheless, I don't think one can ignore the value of empathy as a useful trait for judges at all levels. Even appellate judges are frequently called upon to evaluate factual information as it relates to a legal question. To pick one very common example, when deciding cases on summary judgment, judges are called upon to measure the factual record against the legal standard. Empathy is important in figuring out how to interpret factual data.

Take the teenage mom example. A judge with a strong ability to empathize may be more effective in evaluating the factual arguments on the question whether, say, a parental consent law imposes an undue burden under existing precedent. Maybe the judge will have a more sophisticated understanding of the way parents and teenagers are likely to act and react. Maybe this will lead to a better and more realistic assessment of the way the facts apply to the legal standards.

I'm not advocating for any particular result here, but I think it's shortsighted to deny that empathy is a tool that a good judge needs. It is a tool in service of reasoned legal analysis, not a substitute for it.

Mortimer Brezny said...

If that's all he's saying, then I can agree with that. But, first, I think he massively overstates how common those cases are (at least at the appellate level, and certainly at the Supreme Court level). ... They are not the norm, and they are not 5% of the caseload.

I still have not read Obama's comments. But I still doubt Obama said much more than 'in cases where there is no law one's guiding principles become significant, so any President making a nomination should take a judge's guiding principles into account'. As for the composition of the docket, such cases would constitute 5% of the docket if the Justices took enough cases of the kind to amount to 5% of the sum of the cases they took.

hdhouse said...

Oral arguments. Why have them. Just send them in. Oratorical skills should mean nothing, account for nothing. What can be learning in discourse that isn't in the brief.

Oral arguments are just one more attempt at putting passion into the argument...being an effective and engaging person before the bar should count for nothing right?

Hell, why have attorneys appear at all. Who should care..it might poison the well with passion. Can't have that.

Therefore lawyers should all make the same amount of money. Their only skill value is in research and writing.

Simon said...

Harry - Ah, there's your problem: a flawed premise. You assume (wrongly) that "Oral arguments are just one more attempt at putting passion into the argument," and reason that (a) if dispassionate legal reasoning is the desired process, (b) if oral argument has no other purpose but injecting passion, then (c) oral argument is superfluous. Which I suppose would be logical, but again, the premise is flawed.

Kirk said...

Eli Blake,

"suddenly sports is going to have to confront this issue in a big way"

No doubt. But what you didn't discuss is why the courts should be involved. The fact that they are certain to be is illustrative of so much that is wrong (and yes, I definitely include the ADA in that--for my take on it, just read the chapter in Parliament of Whores.)

MB,

"in certain cases there is no law"

Then in those cases shouldn't the court simply say so?

Simon said...

Kirk said...
"[If, in certain cases there is no law,] [t]hen in those cases shouldn't the court simply say so?"

Well, certainly in conlaw, that's so:

"[When do the conditions hold] that (a) there is no answer to be found in the Constitution’s own text and history, but (b) the judiciary must give an answer ...? The answer should be 'never.' ... [O]ur Constitution lacks a Judicial Review Clause[;] [t]he reason why judges are entitled to make constitutional decisions is that the Constitution is real law. That’s Marbury’s central point. A written constitution creates a hierarchy of legal rules; and when the Constitution clashes with an ordinary law, the Constitution prevails. That’s an implication not only of the Supremacy Clause but also of the Amendment Clause, which disables legislatures from changing the Constitution without a national consensus reflected in the approval of three-fourths of the states.

This means, however, that judges have the last word only when the Constitution is law.
"

Easterbrook, Foreign Sources & the American Constitution, 30 Harv. J. of L. & P.P. 223, 226-7 (emphasis in original) (footnote omitted). Easterbrook adds that "[t]he challenge is to have a theory that can explain why the judge’s word must be binding," which ought to be a familiar line to readers of this blog - Ann, after all, has perambulated the same question: "Why should the judicial view prevail over the ... [democratic branches]?" The judicial power prevails not because of the judge's say-so, but because the judge is saying what the law is. But this only really says that where the constitution is silent on an issue, the Constitution doesn't disturb that issue's prior repose. Which doesn't answer the underlying question, which is "which issues is the constitution silent on?"

hdhouse said...

simon...you still miss my point.

oral presentation injects variables outside the law into the argument. it just does. that is why you have professional presentation specialists in a lot of fields...fluid quick on their feet types....

no one...supreme court or not....fails to be influenced by the subjective aspects of a presentation. it is undeniable. with that risk why take it? you wat 100% dispassion then an oral give in take poisons the well.

Simon said...

Harry,
Your point wasn't that oral argument "injects variables outside the law into the argument" (which I'm sure it can, although I dispute that it must). What you argued above was that it serves no other function but such injection - it is "just one more attempt at putting passion into the argument" (emphasis added). If you want to change your point, then that's fine, but as soon as you acknowledge that oral argument serves any non-emotive function, your logic for abolishing it falls apart.

Revenant said...

Harriet Miers was perhaps a good heart (30%?) which left 70% skilled...but no matter, Cheney orchestrated her demise.

"Orchestrated" implies a level of planning that simply wasn't necessary.

Mortimer Brezny said...

as soon as you acknowledge that oral argument serves any non-emotive function, your logic for abolishing it falls apart.

Not at all. I take his point to mean both that oral argument serves a legitimate purpose and that oral argument necessarily injects passion into the decision-making process. The only way to remove the passion that oral argument necessarily injects is to abolish oral argument.

Mortimer Brezny said...

"in certain cases there is no law"

Then in those cases shouldn't the court simply say so?


Historically, that isn't what judges do. Have you heard of the common law? By "no law" I don't mean a frivolous case; I mean a hard/indeterminate one.

hdhouse said...

Think that through Simon...what you said...it can and has to be both. It can be 99% on point and 1% due to personal presentation, style, connection, manner, demeaner, whatever....it can be and that 1% might as well be 100% because it effects the outcome...even in the slightest...

if you want thoroughly dispassionate supreme court judges then you have to take away as much of the human element as you can...that is if that is what you want.

Revenant said...

It can be 99% on point and 1% due to personal presentation, style, connection, manner, demeaner, whatever....it can be and that 1% might as well be 100% because it effects the outcome...even in the slightest...

That 1% only has an influence if it causes the case to be decided differently than it would have been in the absence of that 1%.

Since you claim that all Supreme Court cases which allow oral argument are influenced by the subjective aspects of oral argument it should easy to point to a case that would have gone the other way if it wasn't for, say, the lawyers' personal charisma. Please do so.

Kirk said...

MB,

"Have you heard of the common law?"

Is that a real question???

At any rate, as to your other question, I'm certainly not interested in the frivolous case, but what I was really thinking about was the sort of thing about which either the attorneys themselves, or commentators on the case, use that terrifying phrase "innovative legal theory."

Jacques Albert said...

hdhouse's serial abuse of the either/or fallacy fails to persuade. Perhaps a few histrionics to follow?

hdhouse said...

thanks Jacques but I'll leave the histrionics to midlings like you.

joshtaber said...

These comments from Obama scare me. I don't want a judge in there that makes decisions based on feelings! They are Supreme Court judges that are to rule on LAW! That means interpreting the constitution and acting accordingly. Not making a decision based on how some group might FEEL! OMG! America is in for long haul.

http://www.americaforpalin.blogspot.com

steven said...

Unintended Consequences - we have no idea what Obama will do because there is no track record, he could appoint all african american judges to the US Supreme Court - rulings releasing thousands of felons for unfair trials could come down due to jury composition like the OJ Simpson trial. President Bush used Presidential decrees to change everything. Obama could decree no more money to Israel until certain conditions are met like including all persons under Jewish rule including the Palestinians citizenship and the right to vote, creating a one state solution. There are too many parallels to President Bush most important being, no real track record to judge him on.