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< | Choosing Souter's Replacement
The Candidates
Qualifications
The Confirmation Process
The Nominee is Confirmed | >
> | A Pathetic Reading of Empathy | | | | |
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< | Choosing Souter's Replacement | | | | |
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< | 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. | >
> | What I Said | | | | |
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> | At the end of the semester, I wrote a poorly conceived essay about whether Lord Coleridge would be confirmed as a Supreme Court Justice based on President Obama’s condition that Justice Souter’s replacement, in addition to other relevant qualifications, have empathy. This essay discusses the same topic in a substantially different vein. | | | | |
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< | The Candidates | | | | |
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< | 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). | >
> | What President Obama Said
In referencing the Lilly Ledbetter pay discrimination case, Obama stated that empathy was an "essential ingredient from arriving at just outcomes and decisions. Not surprisingly, his comment triggered a number of responses, mostly from conservatives and “textualists”, that empathy has no place in judging. Instead, these critics cited the well-worn metaphor of judges as umpires—disinterested parties who adhere to clear, rigid rules—as the paragon of legal arbiters. Of course, the metaphor unravels quickly when you ask someone to point to the MLB rule that describes the strike zone (hint: It doesn’t exist.) | | | | |
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> | Amid these clichéd analyses of judicial qualifications, I stumbled upon Stanley Fish’srecent piece in the New York Times, which discusses Obama’s “invocations of empathy”. While the overall message of the piece was both clear and predictable (precedent and established legal principles=good; decisions based on outcomes=bad), I was struck by two aspects of the piece. First, Fish invoked Felix Cohen’s Transcedental Nonsense, which was pretty cool, but unexpected for an op-ed piece in 2009. Second, and more importantly, Fish completely bastardized the theory underlying Cohen’s piece, in the hopes of drawing a connection between Cohen’s view of law and Obama’s. | | | | |
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< | (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 justices (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. | >
> | Before beginning, I should define what I mean by the words “empathy” and “consequentialism”. I define empathy as “an ability to understand the feelings of another, possibly because of shared experience.” Consequentialism means “the process basing one’s judicial decisions, in large part, on the impact that the decision may have on present parties and those in the future.” | | | | |
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< | 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. | >
> | What Fish Said Cohen Said | | | | |
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< | Qualifications | >
> | While describing Cohen’s work as “ferociously funny”, Fish is dismissive of Cohen’s concern with “human activity, cause and effect, with the past and the future.” In order to link Obama to Cohen, Fish argues that this Cohen’s concern amounts to an analysis of whether rules are or are not socially desirable, which, somehow, is akin to empathy. | | | | |
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< | 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 to be confirmed. | >
> | After reading this, I was less surprised by Fish using Cohen as a vehicle for empathy—there seem to be some many more obvious and accurate ones available—than the fact that Fish, while arguing that Cohen thought that law was not “pure geometry”, ignored Cohen’s attempt to think about law empirically and scientifically. Part of the aim of Transcendental Nonsense was to eliminate concepts that, while operating under the guise of logic, were merely self-referencing tautologies. In other words, certain legal concepts proved to be faulty building blocks for constructing a coherent legal science; the quixotic jurists of Von Jhering’s dream would do better to recognize the complexity of law than to pretend that those blocks would bond seamlessly by the adhesive of pure logic. | | | | |
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> | More troubling is Fish’s reduction of consequentialism to empathy. Interestingly, critics of empathy invoke it only to describe empathy for minorities and other traditional losers in the legal process. Fish, opting to use a different definition than mine, calls it “a fellow feeling for those on the wrong end of the stick” (I don’t think that’s actually an idiomatic expression). I’m not sure why Chief Justice Roberts’ decision in Caperton v. Massey isn’t empathy of a different sort—does the reluctance to expand standards of recusal under the Due Process Clause not invoke empathy for judges or, more specifically, for the Court itself? Perhaps judges have traditionally been on the “wrong end of the stick”? | | | | |
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< | The Confirmation Process | >
> | In any event, though there’s some relationship between the two, understanding who the parties are (presumably empathy) is different from thinking about what will happen to them if the rules are applied in some fashion (consequentialism). Fish misses this point, either because he was trying really hard to plug Cohen’s essay or because he extrapolated Cohen’s analysis of how judges make decisions into a process that, by relying on things other than precedent or established principles, should be classified as “empathetic.” | | | | |
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< | 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. | >
> | What Cohen Actually Said | | | | |
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< | 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. | >
> | This, of course, is inaccurate. Instead Cohen’s point is to account for decision-making by identifying the types of things judges are likely to consider. Cohen’s judge is not unconcerned with traditional legal analysis: s/he asks 1) what forces will tend to conform judicial conformity; 2) what forces will tends to evoke new treatment for the transaction in question and 3) How have these courts dealt with the transaction in the past. All of these questions clearly indicate that any judge should be prepared to grapple with precedent. But Cohen’s larger point—which the umpire analogy misses, and Fish overstates—is that judging is about determining which rules should be regarded as “worthy of being extended or restricted” and those judgments, at least in hard cases, are ethical ones, not logical ones. That judges may use ethical judgments is factual, not required or preferred. | | | | |
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< | 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. | >
> | Nowhere in the essay does Cohen mention “empathy” or “feeling” or “understanding” (at least as between judges and parties. He does propose that lawyers and the legal professions study judicial decision-making, suggesting that this might be a more useful scientific endeavor than constructing a hair-splitting machine. But surely, arguing that we should take the ethical values of judges seriously does not mean, by extension, that Cohen supported empathy; it does mean that he recognized that judges might have it. | | | | |
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> | Conclusion | | | | |
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< | 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 | | | \ No newline at end of file | |
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> | Rather than thinking about Cohen’s piece as a foil describing an undisciplined approach to the law, Fish (and others who have weighed in the matter) would do far better to recognize the difference between discussing how judges should decide cases and how judges do decide cases. In the end, Cohen’s approach gives us more to consider, more to build on, and a more sensible alternative to mere balls and strikes. |
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