For Steele: A Brief Understanding of Law

I think it might be a waste of my time to respond to chairman Steele's ridiculous assertions regarding the linkage of empathy and law. I feel like Steele's comments deserve the Billy Madison response. Despite this inclination i want to address Steele and help him understand why his comments are so divorced from reality and an understanding of how the law works.

Other than "possession is 9 tenths of the law" this is probably the most quoted passage having to due with the law,

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

Now compare this quote from Holmes to the words of Chairman Steele,

STEELE: Good morning y’all, we’re back in the house. We’re talking a little bit of Constitution and a little bit Supreme Court. And a whole lot of saving America’s judicial system and saving our rights as citizens and not having empathetic judges decide cases, but rather judges who are actually understanding the rule of law and what the Constitution and those laws are all about. And how to apply the facts to the law and the law to the facts. And adjudicate my case. I don’t need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.

First tip for Steele is to stop trying to talk like he is beyond the cutting edge. It doesnt work and it makes it hard to take him seriously. His major point though seems to be that in a slam dunk case where he should win the life experience or situation of the other guy will steal his win. That is absolutely not how it works and is the absolute wrong conception of what barack obama means by empathy. A better look at what Obama means by empathy is Lily Leadbetter,

For nearly 20 years, from 1979 until she retired in 1998, she worked as a supervisor at Goodyear's tire plant in Gadsden, Ala. She was an area manager, one of the few women in such a position. At first, her pay was in line with what the men in the same job made. Then it slipped. By the end of 1997, she made $3,727 a month. The lowest paid man doing that same work made $4,286 a month, and the highest paid men were getting $5,236. So she sued.

"I just could not believe that they would separate the female pay so far down the line from my male peers," she told NBC News at the time. "I was shocked when my attorneys accumulated all the information, and I saw how low it was."

Her legal argument was this: Every time the company wrote her a check, it was committing sex discrimination. But she lost. The Supreme Court, by a 5-4 vote, said she waited too long to sue. The majority said federal law requires workers to file their complaints within 180 days of an act of discrimination. In other words, the court said, that clock starts ticking when an employer decides how much to pay, not each time a paycheck is written, years later.

In her dissent, Justice Ginsburg said employers often keep salaries secret, meaning it can take years for workers to realize that discrimination was keeping their pay lower. She accused her male colleagues on the court of failing to understand how pay discrimination works. It's not like being denied a promotion, she wrote, when you know right away what happened. And, at first, women may not want to make waves if they think their pay is low, she said.

Empathy from the bench is understanding that a technical issue like the one in the leadbettter should not overcome the injustice done to her by the discrimination. The first rule of the federal rules of civil procedure is that the rules should be interpreted to secure just, speedy, and inexpensive resolutions. It is impossible to evaluate the justness of a situation if you cannot understand or automatically discount the policy arguments being made. The decisions from the Court and from appeals benches have real world impacts.

When a judge talks about "making policy" what they mean is that the result of a decision at the high levels of the justice system defines the law and how it will apply in similar situations in the future. They do this though only in murky situations without clear answersThey cannot simply issue the law by fiat.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy.
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When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle.

The incorporation of empathy into deciding murky cases with far reaching implications is hardly crazy. It is essential to accomplishing what steele says he wants, equal protection under the law. In fact, if courts act in ways that run contrary to the will or feelings of the general public, there is a way to fix this. This marvel that constrains the ability of the court to make policy is called the legislature. thats right, in most cases congress can edit or rewrite the law to preclude the reading that the judiciary attaches to it. This is exactly what congress did when they passed the Lilly Leadbetter act as the first piece of legislation this term. If you have any doubt about the need for empathy in the judiciary see this post by hilzoy,

Here's some evidence from Jeffrey Toobin's The Nine, pp. 218-219 (note that Justice Powell was the swing vote in this case, and came down in favor of upholding Georgia's sodomy statute):

"One Saturday in the spring of 1986, Justice Lewis Powell struck up a conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10%. Chinnis said that sounded right to him. "I don't believe I've ever met a homosexual", Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, "Why don't homosexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"

You have to feel for the poor clerk: there he is, a closeted gay man, being quizzed by his boss about why homosexuals don't have sex with women. (Apparently, Justice Powell wasn't thinking of lesbians at all.) I think that a good working definition of empathy would be: that quality that allows a straight man or woman to know the answer to that question without having to ask his or her law clerks. And I would think that the fact that Justice Powell had to ask that question might explain why he believed, falsely, that he had never met a homosexual: if you were gay, would you tell him?

Justice Powell was, as I said, the swing vote in a case that upheld criminalizing consensual gay sex carried out in the privacy of one's own home. It seems pretty clear that he had no conception of what it was like to be gay, and was therefore in no position to decide on the importance of the rights that he was deciding on. That is not a good way to interpret the law when, as in this case, the importance of a right is central to the question whether or not it is protected.

Empathy is simply understanding how things actually are in the real world. Whether this comes in the form of understanding that gay people are not straight or that women actually face discrimination in pay and that sometimes its not easy to spot or that diversity for its own sake has merit and so considering race may not be bad in all possible instances empathy is far from a bad characteristic in a jurist, it is essential. The law is not black and white michael steele. Please stop acting like it is and contributing to a misinformed discussion of the subject.