Said Judge Posner, in a piece titled "The chief justice’s dissent is heartless."
ADDED: Perhaps the heart should be ripped out. Maybe we like our judges heartless. But "heart" has been a big theme in judging judges.
At the John Roberts confirmation hearing, Senator Teddy Kennedy probed him about heart:
KENNEDY: [Y]ou were enormously complimentary about Earl Warren, about him understanding not only the law, but also understanding the importance of a chief justice, bringing other justices together in a very important way in terms of dealing with a societal issue and a question. And I think we're a fairer country and a fairer land because of this.This was really the bringing together of the mind and the heart. Oliver Wendell Holmes said, "It's dangerous to think about legal issues can be worked out like mathematics."How did Roberts respond?
And another nominee who was here not too long ago [Stephen Breyer] had this to say about the head and the heart: "What you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of cases. That is why I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules removed from human problems and it will not help. if you do not have a head, there is the risk that in trying to decide a particular person's problem in a case, that may look fine for that person, but you cause trouble for a lot of other people, making their lives yet worse."
I recognize as a judge and I recognized as a lawyer that these cases have impact on real people and real lives. I always insisted when I was a lawyer about getting out into the field and seeing. If I was arguing a case involving native villages in Alaska, I went to the villages. If I was arguing a case about an assembly line, I went to the assembly line. You had to see where the case was going to have its impact and what it's impression was going to be on people. Now, none of those cases were as important as Brown v. Board of Education but the basic principle is the same: I think judge's do have to appreciate that they're dealing with real people with real cases.I think judges do have to appreciate that they're dealing with real people with real cases. We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.Voting against Roberts, Senator Barack Obama said:
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult.... [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
After Obama became President and got to choose his own Justice, his nominee, Sonia Sotomayor, disentangled herself from that heart business:
The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law.... What judges consider is what the law says.Obama had chosen Sotomayor after doubling down on this idea of heart, saying:
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.When he said that, I blogged:
[W]e 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?And I remember way back in 2005, when President George W. Bush was struggling to convince us that Harriet Miers belonged on the Supreme Court. "I know her; I know her heart" he said, and I blogged:
I razzed the Democrats for all the "heart" talk at the Roberts confirmation hearings, and the word makes me suspicious. Bush knows hearts (and he can look into a man's eye and see his soul). One wonders if his father believed he knew David Souter's heart...This reminds me. I once conceived of a superhero I called Framerman:
Framerman appears upon the legal scene whenever judges have difficulty interpreting the Constitution. His superpower is the possession in a single mind of the collective consciousness of all the framers and ratifiers. He stands ready to answer any question, however unforeseen at the time of ratification, precisely as the entire body of relevant decisionmakers at the time would have resolved it. No more guesswork! No more result-oriented historical mumbo-jumbo! Dramatic conflict heightens as Framerman gives answers that surprise and then outrage the judges. The judges could rise up in anger and murder our poor superhero in the end, but this seems out of judicial character. Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent. Hearing this, Framerman — bearing a slight resemblance to Tinkerbell, who would die if people stopped believing in fairies — clutches at his heart and succumbs.Well, so, even Framerman had a heart!
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47 comments:
Posner's column is really sad trolling.
If this is the best the pro-SSM can come up with...I'd suggest shutting up now before anybody really notices how devoid of an argument you have.
Anybody claiming the majority opinion is strong is somebody whose intellect I have to question and Posner has been a clueless non-entity intellectually for several years now. He's a good argument against life time judges.
Aztecs are overrated. They ran things with a scapegoat of the day/hour to murder to make the weather god behave.
Obama can do it with a little help from his UN atheist earth is a living goddess guys who are blessed by a Roman Catolic Pope.
And nothing dies except the reputation of science and politicians for lying their heads off with faked data for cash bribes.
As law professor David Bernstein points out, Posner believes these words were part of the greatest Supreme Court opinion in the last century:
"This case is decided upon an....theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law."
Two Posners?
Yes, I know it was important to you to try to line up agreement frm judges but that is really weak.
Better luck next time. I don;t care about gay "marriage" because I think it is a fad, as I have said.
All I care about are those sincerely concerned about not participating for religious reasons. They are now outlaws.
Nice work.
But the way I understand it is that Justice Kennedy has found a new "fundamental right" in the Constitution for any person-units who love it each other to marry and have their marriage recognized, and indeed celebrated, by the governments - Federal, State, and local - and all citizens or else.
Since there is no way for the government to determine if person-units really sincerely love each other or not, I would think the road is open for any group of citizens, who can find a benefit in it, to claim they really, truly love each other and insist that this "right" to be married should also apply to them.
Though I expect the first results to be a rash of lawsuits against their fellow citizens for civil damages for not having been shown the full respect and high regard that Justice Kennedy has promised them.
And claims for government benefits, of course.
I guess Posner thought a cannibalism analogy was just a bit over the top?
But human sacrifice? There's just the deft touch needed.
How arrogant?
Probably about as arrogant as us assuming that the family structure most prevalent throughout time, hardened and preferred through thousands of years of Darwinian struggle, was no better or worse than a family structure not found in nature, but which now, in our affluence and ease, we have triumphantly decided to call equal.
It is exactly this sort of emotionality in the law that gave us The Wise Latina comment.
There is no longer even a need to hide the arbitrary nature of the opinions.
I find it interesting that the pro-abortion crew thinks offering up criticisms of policy opponents on other issues which include references to human sacrifice is going to be a rhetorical winner.
By "we" - that is, those whose wisdom surpasses all previous generations - Posner is of course not referring to the people.
He's referring to the robed clerisy.
Holmes practiced judicial humility (to be sure, sometimes too far, as Carrie Bell learned); Posner rejects the idea.
Posner can be a really nasty man. He "out-Scalias" Scalia.
I thought Posner's opinions were saturated with meaningless platitudes. He liked to pretend he had some special understanding of economics and law. I thought he was tedious and full of himself
Now I just think he's an ass.
Its heartless But is it accurate? Isn't Posner pro gay marriage? Why would he view the statement as anything but heartless? I don't care if its heartless. I care if it conforms to law.
In all fairness to the Aztecs, the average guy couldn't remove a still-beating heart anymore than he could quote John Stuart Mill.
Only the priests were experts at that especially nasty sort of surgery. And they were qualified to do so only after proving themselves worthy of an elite education whereupon they were granted license by the government to render binding judgment upon the common people. And only the highest of those elite priests could perform the public ritual of distinguishing between a living organ and the living organism from which it came, an organism that would be dead, soon enough.
"Probably about as arrogant as us assuming that the family structure most prevalent throughout time, hardened and preferred through thousands of years of Darwinian struggle, was no better or worse than a family structure not found in nature, but which now, in our affluence and ease, we have triumphantly decided to call equal."
And why did that family structure only have two people? Because one was a man and one was a woman. And they were the mom and dad, and the bioligcal parents of the kids they were SUPPOSED to raise.
But if moms and dads are not important, then the number 2 isn't either. If biological parents arent' impoartant, again, 2 isn't either. There is no reason we need 2.
"Probably about as arrogant as us assuming that the family structure most prevalent throughout time, hardened and preferred through thousands of years of Darwinian struggle, was no better than a family structure not found in nature, but which now, in our affluence and ease, we have triumphantly decided to call equal."
Posner is anti-science. He doesn't believe in Darwin.
Plus, he's speaking prematurely - he hasn't waited long enough to see if the patient will live or die after the surgery.
this is just a problem with leftists. They're really fucking stupid. They don't think with their brains. They let emotions dictate their arguments. Really, they ought to be locked up. I'm sure there's a place for them in artists' colonies, but do not let them in power. They rule by dictat. There's no rhyme or reason - just whatever they're feeling that date. They're not even capable of thinking that others may disagree in good faith. Nope. everyone who disagrees is mean, heartless, insane, a hater racist, sexist, homophobic bigot of one stripe or another. Disagreement means there is a problem and the problem is disagreement!
They simply cannot make arguments. They make lies, easily enough, but not logical arguments. There's no fucking right to gay marriage in the Constitution. Never has been. Never will be. That doesn't matter! Rights are redefined to mean whatever the fuck a leftard wants that day. Voila! Done. States must give gays marriage licenses. Problem solved. On to the next problem - anyone who disagrees needs to be sent to the gulag or maybe even a figurative a gas chamber somewhere. Hi tech lynching, anyone? Let's round 'em up and destroy them. That'll solve the problem of SOMEONE FUCKING DISAGREEING.
Posner has no business commenting on Supreme Court decisions in the press.
Dick always knew better.
This is only the beginning of the Prog assault.
Everyone can express their identity except those with the wrong identity.
You know, religious leaders rail against murder too, and theft, and lying. Should these things be against the law? What is this, a theocracy?!?
"Judge Posner, I know I lied, and sure, you caught me, but seriously, are you really sending me to jail for "bearing false witness? What is this? A theocracy?"
@RA,
this is just a problem with leftists. They're really fucking stupid. They don't think with their brains. They let emotions dictate their arguments
Oh, God, the treacle & the icing is just getting put on with a trowel over the ruling, isn't it?
I just saw a FB post from a fellow alumnus who's gay who now feels for the first time "validated" by his government. The guy's a fucking Wall Street lawyer! So, now we have to concern ourselves with the "feelings" of guys who make six figures a year, who are, by any standards, life's big time winners? ISIS chops the heads off of Christians, burns & drowns prisoners in cages, sells women into sex slavery, but let's talk about the important things, like how scarred this guy was by getting his ass whupped behind the Tastee-Freeze for being a sissy-boy. Did it ever occur to anyone that if the culture at large was so intent upon screwing gays over, it easily had the capability to do so? Or, at least, to withhold from them the plum position of partner at a Wall Street firm?
The advocates of SSM were always pushing the analogy of gays being like blacks. Did you ever notice that they never, ever, posted any figures on how that prejudice had disparate impact on gays in the areas of income & education, just like it has for blacks? Take a wild guess why: there isn't any. So, they're just like blacks. Except when they're not.
What I would give right now for an forthright display of the thrill of the Nietzchean Will to Power. Instead, we get this moral smugness that far surpasses anything you'd witness out of a snake-handlin' Bible-thumper out of an Appalachian holler. At least, the Bible thumper knows it's all about faith. These guys think they've cornered the market on moral reason.
"Its heartless But is it accurate? Isn't Posner pro gay marriage? Why would he view the statement as anything but heartless? I don't care if its heartless. I care if it conforms to law."
Posner's opinion in the 7th Circuit case finding a same-sex marriage right was so much better than what the Supreme Court wrote.
That Posner quote has all the tells of a Ritmo comment. Hmm.
Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent.
If you agree with this type of behavior, I have a question for you.
Why bother writing the damn thing down? Seriously, if the words have no meaning, and the writer's intent has no meaning, (both of which are mainstream Leftist positions today) why write a constitution?
It is ironic that the Justice who probably saved Obama's Presidency - at least his signature legislation - was the one person that he rejected for the Court during the time he was in the Senate: John Glover Roberts, Jr.
Although I believe he voted against Alito, as well.
And the other notable event in his presidency was done by a Justice nominated by Ronald Reagan. I'll suggest that Senator Obama would have been against his confirmation as well.
As the saying goes, I'd rather be lucky than good.
There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
John Henry
It's time Republicans got on board with this talk. Or not Republicans, because they already are, but Conservatives.
This is all code talk for politics. Heart? Heart just means, make the right decision despite what the law says. In other words, make a political decision, not a legal decision.
We Conservatives are complete idiots. We keep thinking that the Supreme Court and other courts are about justice. Justice is blind, remember? The Rule of Law? Etc.
We can continue to hold our breath and turn purple in the face, if we'd like. But those concepts are gone.
It's all political now. It's all heart. It's all feelings.
We need to stop being children about it and grow up. It's time we started appointed judges who will make the right decisions, rather than what the law says. We need judges who will know what their job is on the court. To find the legal reasoning to support their decisions that are conservative decisions. That will support conservatism.
The left figured this out decades ago. We are way behind the curve here.
For Althouse, since I know she likes the Byrds:
You want to know
How it will be
Me and her
Or you and me
You both stand there your long hair flowin'
Eyes alive your mind still growin'
Sayin' to me, "What can we do now that we both love you?"
I love you too
I don't really see why can't we go on as three
You are afraid
Embarrassed too
No one has ever said such a
Thing to you
Your mother's ghost stands at your shoulder
Face like ice a little bit colder
Sayin' to you, "You can not do that, it breaks all the rules
You learned in school"
I don't really see
Why can't we go on as three
We love each other
It's plain to see
There's just one answer
That comes to me
Sister lovers water brothers
And in time maybe others
So you see what we can do is to try something new
If you're crazy too
I don't really see
Why can't we go on as three
"There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
The liberal justices obviously never read that.
Gahrie said
Why bother writing the damn thing down? Seriously, if the words have no meaning, and the writer's intent has no meaning, (both of which are mainstream Leftist positions today) why write a constitution?
We could be like the British. They claim to have a Constitution but, since it is not written down anywhere, it is whatever a judge decides it is from one day to the next. Calling it a "constitution" is a mockery.
As Bagehot said in his "The English Constitution":
This difficulty has been constantly in my way in preparing a second edition of this book. It describes the English Constitution as it stood in the years 1865 and 1866. Roughly speaking, it describes its working as it was in the time of Lord Palmerston; and since that time there have been many changes, some of spirit and some of detail. In so short a period there have rarely been more changes. If I had given a sketch of the Palmerston time as a sketch of the present time, it would have been in many points untrue; and if I had tried to change the sketch of seven years since into a sketch of the present time, I should probably have blurred the picture and have given something equally unlike both.
We, on the other hand, have changed our Constitution only 17 times in over 200 years. Each time has been a relatively complicated and difficult process requiring supermajorities.
I think this stability of law, being able to know from one day to the next, has been a most powerful tool in making America and Americans what we are.
We fought a revolution in part to have stability of law. Let's not go the other way now.
John Henry
Blogger Gahrie said...
Instead, what happens is this: the judges begin to write opinions rejecting the controlling effect of original intent.
If you agree with this type of behavior, I have a question for you.
Why bother writing the damn thing down? Seriously, if the words have no meaning, and the writer's intent has no meaning, (both of which are mainstream Leftist positions today) why write a constitution?
This may be tough to understand, but, it keeps us in line.
There are a lot of people who believe in things like the rule of law.
There is a story from a guy who was living in East Germany who escaped to the United States. He was a concert pianist I think, or something like that. He drove to the post office one day, parked his car, went inside. When he came out, there was a police officer putting up a no parking sign. He then began to ticket the guy. The guy protested, the sign wasn't there when I parked. So what? It's there now, pay your fine.
In human nature, this is unfair. We have a mind given to us from God and our morals flow from that. It's written on our hearts. We don't need to be taught that these things are wrong, or unfair. We know that they are birth.
But if you lived in a society that said the complete opposite, that didn't even make a pretense of law having meaning, what would you do?
The pretense must be there. In the United States, it has kept us conservatives in line for decades. The left disposed of this idea a long time ago in the courts. They don't put judges on the courts who will uphold the law, they put judges on the courts who will judge progressively and find a piece of the law to support that. This keeps the pretense up. This keeps the conservatives in line.
It's time we took off the blindfold and stopped pretending like there is a rule of law anymore.
If we don't start playing by their rules, and start putting political judges on the courts, we're going to continue to lose, and lose badly.
But if we play the same game that they are playing, and make it all political, we may finally hear an outcry from the public that the courts shouldn't be political. And outcry from the left and the right.
Blogger jr565 said...
Its heartless But is it accurate? Isn't Posner pro gay marriage? Why would he view the statement as anything but heartless? I don't care if its heartless. I care if it conforms to law.
I know it's going to be tough, but you need to stop caring if it conforms to the law.
We're well passed that.
Five justices cut the heart out of the Constitution.
Hell...now they've got the Pope saying divorce is a good thing!
Yes, Posner is "tedious and full of himself." And that makes his opinions kind of funny. He is also full of Fredrick Nietzsche. And that's not so funny.
So, Posner is pro-sacrificial rites, and he supports selectively denying rights. What a guy. The gender equivalence movement brought out his Aztec side and the trans equivalence movement exposed his progressive liberal underbelly.
Senator Kennedy's value was abandoned to die in a pond.
Despite the "blah, blah, blah" coming out of Senator Obama's mouth we all know why he voted against Roberts. Pure and simple, it was because he was nominated by a Republican. The words were just juvenile rationalization. He's been a partisan divider since before he was president, despite the rep the press tried to fix on him.
Wow, does a feminist like the Prof really have no problem this argument from Posner's article:
But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.
Polygamy isn't ok because it denies (less affluent) men the women they deserve? Jeepers.
Roberts was a better lawyer than Posner and a better judge than Posner. He's also better looking and smarter. He was smart enough to get the job that Posner wanted so desperately.
Posner is an attention whore who no one likes. Sad, lonely, old man in the same dead end job for over 30 years. No people skills.
Play with your cat, old man.
Posner also hates gun rights. He doesn't like his fellow citizens.
Guns are dangerous. He's afraid of them. Total coward.
Since you sent me over to Slate I checked out a couple of their other articles. This passage from one seems pretty representative:
Marriage equality is almost certainly coming, and it will have Unintended Consequences. For one thing, it will violate the personal and religious freedoms of business owners, flattening them under the unbearable mass of having to serve LGBTQ citizens. It will also probably lead to legal polygamy and all manner of other relational deviance, including the frightening realization that healthy marriages may not require monogamy, resulting in an opening up of what the institution might mean. Marriage equality will also hasten our shift to a world in which, as with interracial marriage, it is no longer considered couth to question the dignity of same-sex love in polite society. Lastly, it will of course be devastating to the children.
It’s probably no surprise that most of these consequences do not trouble me greatly. In fact, some of them seem like clear bonuses to marriage equality, while others, if they come under serious consideration, will face the same refining legal and cultural scrutiny same-sex marriage has been subjected to over the last 30 years or so.
See, opening everyone up to the (apparently obvious) idea that marriage doesn't require monogamy, that's just a bonus. Weirdly I don't remember reading about that too much in the mainstream press' coverage of the marriage equality issue (although several Salon articles were pretty up front about it). But oh well, "legalizing gay marriage won't change marriage at all."
Justice Thomas had a heart for Warrick Dunn's mom and her family and the families of violent crimes.
The majority didn't care. This heart stuff goes many different ways. Why not protect gun rights of law abiding people like Ward McDonald who live in high crime areas where the criminals have guns? Who is being protected by disarming law abiding citizens?
The government can't keep illegals out but they are going to prevent criminals from getting guns? Of course they aren't. Criminals will have guns or easy access to them. Why disarm the law abiding citizenry unless your heartless asshole?
Posner's decline over the years has been sad to witness.
We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.
Says Judge Posner as he sits at Seder celebrating God slaying all the firstborn of Egypt's land.
I'm sorry, that a Jew of all people can so blithely dismiss the importance of history & tradition as foundations of a people's moral lives just strikes me as, well, unhinged. Kind of on par with being a Jewish racist. "You know, things don't go well for your people when we start going down that route....."
I'm just glad we can agree it's a good thing the Aztec empire fell.
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