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JessicaCohenSecondPaper 5 - 29 Apr 2010 - Main.MikeAbend
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| META TOPICPARENT | name="SecondPaper" |
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| | | Obama's Litmus Test? | |
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• I have to say, as a Conservative, i don't necessarily agree with how you characterize the conservative/liberal divide. These notes are just to help me in going through your paper to show you my thought process before I write my "dissent" | | |
About three weeks ago, our Constitutional law class arrived at Roe v. Wade. After running through the doctrinal distinctions among the three trimesters and the textual underpinnings of the decision, our professor introduced the concept of “judicial empathy” to the class. Blackmun’s opinion, he argued, was special – and admirable – in that he grounded his views partially in the plight of women with unwanted children (who would be stigmatized and otherwise stressed) and would-be aborted children who do not receive adequate love and care. Such empathy, I thought, was hardly first displayed in 1973. Brown v. Board of Education (1954) was at least somewhat decided with an empathetic, “bleeding” heart. Same with Heart of Atlanta Motel and Katzenbach v. McClung? . So was Muller v. Oregon, for that matter, where Brewer wrote “that woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious.” Ad infinitum. Empathy was nothing new. | |
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• I think alot of this has to do with Footnote 4 from Carolene. Our country started from a very limited conception of political freedom, giving suffrage to only the most privileged (wealthy white males). I think this idea of empathy is to recognize the lack of political justice given to certain classes, and judges willing to accept that the "status quo" is inherently unjust. | | | I realized that each of the opinions that came to my mind had been written by liberal justices and were about the protection of minorities in one facet or another in American societies (these in particular were about women and Blacks). I asked the professor whether being empathetic is inherently a liberal quality, or at the least easier for liberal judges. He turned the floor over to a classmate, who urged me to look at the dissent in Kelo. I did – and there’s a tad of empathy there (by Thomas, who felt for the “poor communities” who would likely bear the brunt of the majority’s decision) – but not of the same quality in the cases that came to mind. | |
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• Is it protection or empowerment that the judges are giving? I think there are more liberal judges willing to reject current traditions or societal norms, but it is not limited to liberals alone. I am a conservative, and I am in favor of total freedom (pro gay marriage, pro choice, end don't ask don't tell, etc.) At the same time, I recognize the right of people to govern themselves free from judicial moral legislation, and I don't know how far my own personal views should extend into BENIGN traditions. I use the word benign loosely, and many people would disagree with me as to what should qualify as benign | | | In light of the fact that Obama’s proclaimed penchant for judicial empathy likely led him to choose our most recently appointed Supreme Court justice and will almost certainly inform his next choice, it’s worth considering 1) what judicial empathy actually is, 2) whether it is in fact unique to liberals, and 3) if 2) is true, what that means.
Obama first made known his appreciation for judicial empathy at John Roberts’ confirmation hearing, in 2005. It was the “5 percent” of cases, the really tough ones, that he felt required empathy on behalf of the disenfranchised and immobilized. Roberts, in Obama's estimation, did not have it. After participating in the 2006 filibuster of Samuel Alito’s confirmation, Obama shared a similar gripe, saying that Alito had a Pavlovian impulse to favor employers over employees. And Obama famously lauded Sonia Sotomayor's experience as providing her with the ability to emphathize, though she rejected Obama's view at her confirmation hearings. (Sotomayor ironically referred to herself as an “umpire” in judging.) So is “empathetic” simply a code word for liberal? |
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