• A lovely essay, in my view, not least because it achieves seriousness without being serious. I used to think that Stanley would be an ideal teacher for this course, but he elected not to teach it when he visited in the spring of 1995, while I was away somewhere. As you have showed, he'd have learned something by teaching it, as I always do.

• I also used to think that Stanley kept a mental midget around to do occasional duty writing columns in the Times. (I think of him as being one of the Zapf dingbats, a relative of my friend the Econodwarf, but that's another story.) The essay you so thoroughly take to the cleaners here was puzzling for me, however, because I found it improbable that the midget too had been exposed to Transcendental Nonsense and the Functional Approach. This in turn implied that Stanley had something actual to do with the composition of the essay, which was disheartening, because—as you say—whoever wrote it didn't seem to have the vaguest idea what Felix Cohen actually said. I concluded that the midget had received a light briefing, including some vague references to Cohen's article, and had winged it. The only plausible alternative was that Stanley had phoned it in, with utter disregard for his readership and reputation, without checking anything or bothering to refresh his recollection, almost as though he were Tom Friedman, or Abe Rosenthal.

• Anyway, you are ascertainably correct on all points, although it seems to me that your conclusion is faint: any conceivable theory of judging, including most wrong ones with almost nothing to recommend them, "give[] us more to consider, more to build on, and [are] a more sensible alternative to mere balls and strikes." The whole point of the umpire comparison, as you of course realize but don't say, is that it bears no relation whatever to judging. It doesn't even bear much relationship to actual umpiring, as you point out. But it does bear a significant relationship to mythology: it consolidates through a homely vernacular image the bullshit idea that law is a realm separate from politics. No one seriously believes this, but it is a very important part of how things necessarily work anyway. (Have you met my friend Thurman Arnold, by any chance? Thurman, Stanley. Stanley, Thurman.) As a statement of creed, it plays a useful and important role as a subsidiary moving part in the machinery by which we prevent one of the cardinal elements of our creed, Equality, from actually meaning anything.

A Pathetic Reading of Empathy

What I Said

What President Obama Said

What Fish Said Cohen Said

What Cohen Actually Said

Conclusion

Choosing Souter's Replacement

The Candidates

Qualifications

The Confirmation Process

The Nominee is Confirmed

Choosing Souter's Replacement

With Justice Souter’s impending retirement from the Supreme Court, pundits and commentators have made numerous predictions about his replacement. The general consensus is that President Obama will select a woman, who may or may not already serve on the federal bench, and is at least as left of center as Souter. Given the relative youth of the conservative wing of the Court as compared to Ginsburg and Stevens, the pick will likely target a person who can help shape liberal jurisprudences for decades to come.

The Candidates

Suppose for a moment, that our next Supreme Court justice was to be drawn from the figures we’ve encountered in readings over the course of the semester. Who might you pick? Might we want a guy like Richard Karpinski, who could bring the type of interesting personal background and practical perspective to the bench that might connect the Court with the real world? Well, it’s not clear that Karpinski would want the job, though it might give him a chance to prove that he’s not the low-life lawyer some think. But even if he did, the Supreme Court has become far too prestige obsessed to admit a ponytail wearing wills, divorce, and real estate lawyer with a Temple degree, even if the guy was smart enough (or just smart enough to know he could hire clerks to figure it out).

(C. Oliver) Robinson would have a far better shot than Karpinski, and would bring both strong academic credentials and an ability to cut through bullshit, not to mention the completely novel viewpoint of a “criminal lawyer” and the willingness to stand up to SCOTUS justice (see the Whizzer White story). But given Robinson’s willingness to take money from clients likely involved in R.I.C.O. worthy behavior, the modern confirmation process gives him little chance even with 60 votes.

Political realities being what they are, the most likely pick is Lord Coleridge (the author is aware that Coleridge served on England’s highest court). Like Justice Robert Jackson, Coleridge served as Solicitor General and Attorney General prior to his appointment to the high court. Having been a prosecutor and advocate before the high Court, Coleridge would bring tremendous institutional knowledge to the bench as well as a familiarity with the challenges and incentives of the parties that appear before him in a substantial number of cases. Coleridge would have a far easier time being than any of our other characters, though choosing him would surpass an opportunity to add diversity to the Court, or to move the Court in a different direction. And that’s precisely why he gets picked.

Qualifications

Mr. Obama has indicated that his choice be “empathetic” , which may be another way of saying that the next justice be attuned the real-world of effects of high court decision-making, with the ability to stand in someone else’s shoes. In addition, any nominee would have to have the intellectual heft to grapple with the toughest issues of the day. Lastly, as I suggested above, the nominee must be able be confirmed.

The Confirmation Process

Coleridge’s opinion rejects the idea that necessity could be a defense to murder, despite the acknowledgment that “we are often compelled to set up standards we cannot reach ourselves, and to lay down laws that we cannot ourselves satisfy.” Certainly, this statement would be like catnip to conservative legislators, whose entire approach to criminal justice could not, and has not, been articulated in a more concise, yet maddening way. But did Dudley generate the kind of empathy Obama might require? By 19th century standard, Coleridge might well have been viewed as extraordinarily empathetic for his time. The newspapers reports, largely lauded Coleridge’s decision, struck a proper balance between respect for the law and a pragmatism that allowed for mercy from the judgment. Moreover, as Eben pointed to in class, Britain’s imperial expansion was based on the subjugation of people who were allegedly cannibals. To allow mercy for Dudley and Stephens risked at least some threat to the empire’s legitimacy—though Britain had probably grappled with all sorts of inconsistencies between nationalist myth and fact by that point.

Despite the outcome, the language of the opinion strikes a decidedly conservative tone. Coleridge elevates the duty to die over the duty to preserve one’s life in admittedly extreme circumstances, because to do the opposite would “exonerate individuals from criminal liability and bring absolute divorce between law and morality.” Of course, such a view is untenable. Given the fluidity and subjectivity of morality and law, one wonders why Coleridge was as oblivious to his role as rule-maker here—he could have easily adopted a rule that took exigent circumstances into account, as difficult as it might have been politically. In fact, the outcome suggests that Coleridge did the easiest thing he could have done: he handed down a death sentence knowing that other parties would have the final say on whether it would actually be enforced.

The Nominee is Confirmed

While liberal legislators would pick up on this abrogation of judicial responsibility here, Coleridge would probably pick up enough votes from moderates focusing more on the outcome than on decisions that actually reflect leniency for those in difficult circumstances, a commentary meant less to highlight party politics than the confirmation process more generally. The proceedings reflect a propensity by nominees to downplay their own importance, resorting to strained analogies that, if true, would require little training whatsoever. Moreover, they signal an unfortunate majority view, that judges don’t make rules, they merely decide cases; they’re not players in the legal process, they’re disinterested umpires. And despite the opportunity to break away from that trend, I worry that, in the real world, where uninformed public opinion rules the day, Obama and Democrats will settle for reliable vote over a powerful voice.

That sin should be laid to their charge.

-- KahlilWilliams - 18 May 2009