"Empathy" vs Law, Part III

Dr. Thomas Sowell continues his explanation of the requirements of Law - and those who would be Judges:

There is a reason why the statue of Justice wears a blindfold. There are things that courts are not supposed to see or recognize when making their decisions-- the race you belong to, whether you are rich or poor, and other personal things that could bias decisions by judges and juries.

It is an ideal that a society strives for, even if particular judges or juries fall short of that ideal. Now, however, President Barack Obama has repudiated that ideal itself by saying that he wants to appoint judges with "empathy" for particular groups.

This was not an isolated slip of the tongue. Barack Obama said the same thing during last year's election campaign. Moreover, it is completely consistent with his behavior and associations over a period of years-- and inconsistent with fundamental principles of American government and society.

Nor is this President Obama's only attempt to remake American society. Barack Obama's vision of America is one in which a President of the United States can fire the head of General Motors, tell banks how to bank, control the medical system and take charge of all sorts of other activities for which neither he nor other politicians have any expertise or experience.

The Constitution of the United States gives no president, nor the entire federal government, the authority to do such things. But spending trillions of dollars to bail out all sorts of companies buys the power to tell them how to operate.

Appointing judges to the federal courts-- including the Supreme Court-- who believe in expanding the powers of the federal government to make arbitrary decisions, choosing who will be winners and losers in the economy and in the society, is perfectly consistent with a vision of the world where self-confident and self-righteous elites rule according to their own notions, instead of merely governing under the restraints of the Constitution.

     If all this can be washed down with pious talk about "empathy," so much the better for those who want to remake America. Now that the Obama administration has a Congressional majority that is virtually unstoppable, and a media that is wholly uncritical, the chances of preventing the president from putting someone on the Supreme Court who shares his desire to turn America into a different country are slim or none.

The only thing on the side of those who understand this, and who oppose it, is time. Reshaping the Supreme Court cannot be done overnight, the way Congress passed a vast spending bill in two days.

Replacing Supreme Court justices is something that can only be done one at a time and at unpredictable intervals. What this means is that Senators who do not have enough votes to stop an Obama nominee for the High Court from being confirmed nevertheless have an opportunity - and a duty - to alert the public to the dangers of what is being done.

This does not mean turning confirmation hearings into a circus or a kangaroo court with mud-slinging at judicial nominees, the way Robert Bork and Clarence Thomas were smeared. But it also does not mean taking the path of least resistance by quietly voting for people like Ruth Bader Ginsberg and Stephen Breyer, who treat the Constitution as a grant of arbitrary power to themselves, rather than a restriction of power on the government as a whole.

It is all too easy to say "a president has a right to appoint the kind of people he wants on the Supreme Court." He does. But that does not mean that those who don't have the votes to stop dangerous nominees from being confirmed are obliged to vote for them or to stand mute.

Since Justice David Souter is likely to be replaced by another liberal, it is all too easy to say that it is no big deal. But with all the indications already as to how the Obama administration is trying to remake America on many fronts, the time to begin alerting the public to the dangers is now.

Given the age and health of other Supreme Court justices, more replacements are likely during Obama's time in the White House. Time is an opportunity to mobilize public opinion and perhaps change the composition of the Senate that confirms judicial nominees.

     But time by itself does nothing. It is what we do with time that matters.

"What Were You Thinking?"

 

"Empathy" versus Law, Part II

Dr. Sowell continues his discussion of the Supreme Court with today's commentary about Justice Oliver Wendell Holmes.

    The great Supreme Court justice Oliver Wendell Holmes is not the kind of justice who would have been appointed under President Barack Obama's criterion of "empathy" for certain groups.

    Like most people, Justice Holmes had empathy for some and antipathy for others, but his votes on the Supreme Court often went against those for whom he had empathy and for those for whom he had antipathy. As Holmes himself put it: "I loathed most of the things in favor of which I decided."

    After voting in favor of Benjamin Gitlow in the 1925 case of Gitlow v. People of New York, Holmes said in a letter to a friend that he had just voted for "the right of an ass to drool about proletarian dictatorship." Similarly, in the case of Abrams v. United States, Holmes' dissenting opinion in favor of the appellants characterized the views of those appellants as "a creed which I believe to be the creed of ignorance and immaturity."

    By the same token, Justice Holmes did not let his sympathies with some people determine his votes on the High Court. As a young man, Holmes had dropped out of Harvard to go fight in the Civil War because he opposed slavery. In later years, he expressed his dislike of the minstrel shows that were popular at the time "because they seem to belittle the race."

    When there were outcries against the prosecution of Sacco and Vanzetti in the 1920s, Holmes said in a letter, "I cannot but ask myself why this so much greater interest in red than black. A thousand-fold worse cases of negroes come up from time to time, but the world does not worry over them."

    Yet when two black attorneys appeared before the Supreme Court, Holmes wrote in another letter to a friend that he had to "write a decision against a very thorough and really well expressed argument by two colored men"-- an argument "that even in intonation was better than, I should say, the majority of white discourses that we hear."

    Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society. He had a very clear sense of what the role of a judge was-- and wasn't.

    Justice Holmes saw his job to be "to see that the game is played according to the rules whether I like them or not."

    That was because the law existed for the citizens, not for lawyers or judges, and the citizen had to know what the rules were, in order to obey them.

    He said: "Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts." Legislators existed to change the law.

    After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: "Do justice, sir. Do justice."

    Holmes had the carriage stopped. "That is not my job," he said. "My job is to apply the law."

    Holmes wrote that he did not "think it desirable that the judges should undertake to renovate the law." If the law needed changing, that was what the democratic process was for. Indeed, that was what the separation of powers in legislative, executive and judicial branches by the Constitution of the United States was for.

    "The criterion of constitutionality," he said, "is not whether we believe the law to be for the public good." That was for other people to decide. For judges, he said: "When we know what the source of the law has said it shall be, our authority is at an end."

    One of Holmes' judicial opinions ended: "I am not at liberty to consider the justice of the Act."

    Some have tried to depict Justice Holmes as someone who saw no need for morality in the law. On the contrary, he said: "The law is the witness and external deposit of our moral life." But a society's need to put moral content into its laws did not mean that it was the judge's job to second-guess the moral choices made by others who were authorized to make such choices.

    Justice Holmes understood the difference between the rule of law and the rule of lawyers and judges.

Consider the stature and character of Holmes as you think about the judicial choice facing the current occupant of the Oval Office.  Consider  what Obama has said about the sort of person he will be choosing.  Consider these words by columnist Michael Barone:

Obama's attitude toward the rule of law is apparent in the words he used to describe what he is looking for in a nominee to replace Justice David Souter. He wants "someone who understands justice is not just about some abstract legal theory," he said, but someone who has "empathy." In other words, judges should decide cases so that the right people win, not according to the rule of law.

Then ask yourself, "What Was I Thinking?"

"Empathy" versus Law

The words of Dr. Thomas Sowell have graced this blog before.  In today's column, he addresses the requirements for a nominee to the Supreme Court of the United States of America.

    Justice David Souter's retirement from the Supreme Court presents President Barack Obama with his first opportunity to appoint someone to the High Court. People who are speculating about whether the next nominee will be a woman, a Hispanic or whatever, are missing the point.

    That we are discussing the next Supreme Court justice in terms of group "representation" is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.

    That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

    Would you want to go into court to appear before a judge with "empathy" for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

    Appoint enough Supreme Court justices with "empathy" for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees "equal protection of the laws" for all Americans.

    We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law would become meaningless when it is replaced by the empathies of judges.

    Barack Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words "rule of law." And if you are willing to buy it, he will keep on selling it.

    Those people who just accept soothing words from politicians they like are gambling with the future of a nation. If you were German, would you be in favor of a law "to relieve the distress of the German people and nation"? That was the law that gave Hitler dictatorial power.

    He was just another German chancellor at the time. He was not elected on a platform of war, dictatorship or genocide. He got the power to do those things because of a law "to relieve the distress of the German people."

    When you buy words, you had better know what you are buying.

    In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.

    Justice John Paul Stevens virtually destroyed the Constitution's restrictions on government officials' ability to confiscate private property in his 2005 decision in the case of "Kelo v. New London" - 30 years after President Ford appointed him.

    The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues - whether private property, abortion or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law - what has been called "a government of laws and not of men."

    Under the American system of government, this cannot be done overnight or perhaps even during the terms in office of one president - but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.

    Some people say that who Barack Obama appoints to replace Justice Souter doesn't really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with "empathy" - which is to say, with justices who think their job is to "relieve the distress" of particular groups, rather than to uphold the Constitution of the United States.

Good heavens, people.  "What Were You Thinking?"

A Rookie President...

Scholar, author, economist, columnist -- all titles well-earned -- Dr. Thomas Sowell has again hit one out of the park in today's column published at Townhall.com and on the Jewish World Review.  And now, of course, here.

    Someone once said that, for every rookie you have on your starting team in the National Football League, you will lose a game. Somewhere, at some time during the season, a rookie will make a mistake that will cost you a game.

    We now have a rookie President of the United States and, in the dangerous world we live in, with terrorist nations going nuclear, just one rookie mistake can bring disaster down on this generation and generations yet to come.

    Barack Obama is a rookie in a sense that few other Presidents in American history have ever been. It is not just that he has never been President before. He has never had any position of major executive responsibility in any kind of organization where he was personally responsible for the outcome.

    Other first-term Presidents have been governors, generals, cabinet members or others in positions of personal responsibility. A few have been senators, like Barack Obama, but usually for longer than Obama, and had not spent half their few years in the senate running for President.

    What is even worse than making mistakes is having sycophants telling you that you are doing fine when you are not. In addition to all the usual hangers-on and supplicants for government favors that every President has, Barack Obama has a media that will see no evil, hear no evil and certainly speak no evil.

    They will cheer him on, no matter what he does, short of first-degree murder-- and they would make excuses for that. Even former Reagan speech writer Peggy Noonan has gushed over President Obama and even crusty Bill O'Reilly has been impressed by Obama's demeanor.

    There is no sign that President Obama has impressed the Russians, the Iranians or the North Koreans, except by his rookie mistakes-- and that is a dangerous way to impress dangerous people.

    What did his televised overture to the Iranians accomplish, except to reassure them that he was not going to do a damn thing to stop them from getting a nuclear bomb? It is a mistake that can go ringing down the corridors of history.

    Future generations who live in the shadow of that nuclear threat may wonder what we were thinking about, putting our lives-- and theirs-- in the hands of a rookie because we liked his style and symbolism?

    In the name of "change," Barack Obama is following policies so old that this generation has never heard of them-- certainly not in most of our educational institutions, where history has been replaced by "social studies" or other politically correct courses.

    Seeking deals with our adversaries, behind the backs of our allies? France did that at Munich back in 1938. They threw Czechoslovakia to the wolves and, less than two years later, Hitler gobbled up France anyway.

    This year, President Obama's attempt to make a backdoor deal with the Russians, behind the backs of the NATO countries, was not only rejected but made public by the Russians-- a sign of contempt and a warning to our allies not to put too much trust in the United States.

    Barack Obama is following a long practice among those on the left of being hard on our allies and soft on our enemies. One of our few allies in the Middle East, the Shah of Iran, was a whipping boy for many in the American media, who vented their indignation at his regime-- which now, in retrospect, seems almost benign compared to the hate-filled fanatics and international terrorism sponsors who now rule that country.

    However much Barack Obama has proclaimed his support for Israel, his first phone call as President of the United States was to Hamas, to whom he has given hundreds of millions of dollars, which can buy a lot of rockets to fire into Israel.

    Our oldest and staunchest ally, Britain, has been downgraded by President Obama's visibly less impressive reception of British Prime Minister Gordon Brown, compared to the way that previous Presidents over the past two generations have received British Prime Ministers. President Obama's sending the bust of Winston Churchill in the White House back to the British embassy at about the same time was either a rookie mistake or another snub.

    We can lose some very big games with this rookie.

 "What Were You Thinking?"

Cheap (and Expensive) Political Theater

Scholar and columnist Thomas Sowell has a column (March 24, 2009 -- alternate source) that should be required reading for those who think the previous administration is responsible for the meltdown in the housing industry and the associated difficulties in the economic sphere.  An excerpt:

    We are not yet a banana republic, though that is the direction in which some of our politicians are taking us - especially those politicians who make a lot of noise about "compassion" and "social justice."

    What makes this all the more painfully ironic is that it is precisely those members of Congress who have had the most to do with creating the risks that led to the current economic crisis who are making the most noise against others, and summoning people before their committee to be browbeaten and humiliated on nationwide television.

    No one pushed harder than Congressman Barney Frank to force banks and other financial institutions to reduce their mortgage lending standards, in order to meet government-set goals for more home ownership. Those lower mortgage lending standards are at the heart of the increased riskiness of the mortgage market and of the collapse of Wall Street securities based on those risky mortgages.

    Senator Christopher Dodd has played the same role in the Senate as Barney Frank played in the House of Representatives. Now both are summoning government employees and the officials of financial institutions before their committees to be lambasted in front of the media.

    Dodd and Frank know that the best defense is a good offense. Both know how hard it would be to defend their own roles in the housing debacle, so they go on the offensive against others who are in no position to reply in kind, given the vindictive powers of Congress.

It boggles my mind that people would rather ignore the truth and believe proven liars such as Frank and Dodd than do the simple research that puts the lie to their offensive rant.  Now they've elected a president and congress that are running this country directly to socialism.  Themselves willfully ignorant, they trust in big government rather than themselves.

"What Were You Thinking?"

Slouching toward Mediocrity

Thomas Sowell, Senior Fellow at the Hoover Institute, points out the rabble-rousing Mob Mentality involved in the conduct of those most invoolved in creating the current economic situation in today's article at Townhall.com titled "Cheap Political Theater."

 

A couple of excerpts from this illuminating article:

    Death threats to executives at AIG, because of the bonuses they received, are one more sign of the utter degeneration of politics in our time.

    Congressman Barney Frank has threatened to summon these executives before his committee and force them to reveal their home addresses-- which would of course put their wives and children at the mercy of whatever kooks might want to literally take a shot at them.
    Whatever the political or economic issues involved, this is not the way such issues should be resolved in America. We are not yet a banana republic, though that is the direction in which some of our politicians are taking us-- especially those politicians who make a lot of noise about "compassion" and "social justice."

    What makes this all the more painfully ironic is that it is precisely those members of Congress who have had the most to do with creating the risks that led to the current economic crisis who are making the most noise against others, and summoning people before their committee to be browbeaten and humiliated on nationwide television.

Read the entire article and then ask yourself, "Is this the kind of America I want my children and grandchildren to inherit?"

"What Were You Thinking?"