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Associate Justice Reinhardt?:
Senator Barack Obama, on the qualities he would look for in a potential Supreme Court Justice if he is elected President:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.
Ninth Circuit Judge Stephen Reinhardt, on the qualities of a good judge:
[I]n my view they include compassion, sensitivity, empathy for others, and a commitment to the pursuit of justice.
Hmmm......
Jestak (mail):
I'm sure you're being at least a little tongue in cheek here, right, Orin? Reinhardt is, what, close to 80 years old now--hardly a likely candidate.
4.11.2008 1:57pm
OrinKerr:
Yes, tongue in cheek: Reinhardt is not only the wrong age, he is a white male, too. But it's interesting, and I think noteworthy, that their descriptions of a good judge are phrased in such similar ways.
4.11.2008 1:59pm
NI:
Reinhardt may be too old, but I think the Supreme Court should always have at least one or two Reinhardts to balance the excesses of the Scalias and the Thomases. Sometimes I agree with Reinhardt, and sometimes I agree with Scalia, and I think both of them occasionally suffer from letting their ideology get the better of them.
4.11.2008 2:01pm
H. Tuttle:
God help us all if someone in the Reinhardt mold is appointed and confirmed to the Sup. Ct.
4.11.2008 2:02pm
Tony Tutins (mail):
Well, few people would consider hallmarks of a good judge to include heartlessness, insensitivity, inability to understand those outside one's immediate clique, and a "Who cares?" approach to the pursuit of justice.
4.11.2008 2:02pm
snoot:
NI, unless you think their ideologies are fine-tuned to cancel each other out, there's only a weak case for designing a Court balanced that way. I'd rather name a justice whose decisions center on the right answer than try to project the future ideology of the rest of the Court and guess how to counterbalance it.
4.11.2008 2:05pm
OrinKerr:
Tony,

Of course, but I think the implicit point is that the judge should change the law so that the law becomes more compassionate and sensitive. Compare with the conservative version to the contrary, that the judge should not "legislate from the bench."
4.11.2008 2:07pm
Ohio Scrivner (mail):
Those comments are the exact opposite of what Chief Justice Roberts described as the appropriate role of a Judge during his confirmation hearings. Its not calling balls and strikes the same for everyone. Its making sure that certain litigants (ie. those with the correct ethnicity, gender, socio-economic background etc.) have better outcomes because the judge is sympathetic to them or to their group. So much for justice being blind.
4.11.2008 2:10pm
Justin (mail):
"Tony,

Of course, but I think the implicit point is that the judge should change the law so that the law becomes more compassionate and sensitive. Compare with the conservative version to the contrary, that the judge should not "legislate from the bench.""

Orin, do you really believe in the accuracy of these conservative stereotypes? Do you really believe that liberals "change" the law while conservatives simply "discover" it?

It sounds like a 1L fairytail, but don't we all get to the point where we stop believing in the tooth fairy and the monster under the bed?
4.11.2008 2:21pm
Displaced Midwesterner (mail):

Its not calling balls and strikes the same for everyone


Or it's an understanding that without a sense of empahty, it is not possible to call the balls and strikes fairly; a belief that when people say "neutral" they really mean is (or the actual effect is) that you call the balls and strikes in a way that favors another particular group (e.g., businesses, or state governments, or grousp espousing certain causes).
4.11.2008 2:22pm
Tony Tutins (mail):
Orin, I believe that despite their best efforts, no one can completely throw off the biases he was raised with, learned at school, or developed through a lifetime of experience. Judges will thus to some extent always see the law through the prism of their experience. That's why the idea of including people with different backgrounds, to attempt to cancel out such residual bias, is so appealing.

As an analogy, if your rifle shoots to the right, you adjust it leftwards to get it to shoot straight ahead.
4.11.2008 2:28pm
Guest101:
Orin, do you seriously believe that everyone who thinks that the characteristics of a good judge include "compassion, sensitivity, empathy for others, and a commitment to the pursuit of justice" would turn into a Stephen Reinhardt on the bench? A more likely explanation: lots of people, including Obama, Reinhardt, and no doubt millions of others, believe that a good judge should possess those qualities, so it's hardly surprising that there's some overlap between these quotes.
4.11.2008 2:35pm
Pub Editor:
Professor Kerr, please, don't scare me like that.
4.11.2008 2:44pm
frankcross (mail):
I'm not sure about Orin's point, but it is interesting that liberals call for compassionate judging while conservatives call for strict legalism. The conservatives are often oblivious to how real conservative judges decide, but the liberals are perhaps insufficiently respectful of legalism.

I think Reinhardt would be a fine Supreme Court justice (as one of nine) but is a problem on the circuit court, because of insufficient respect for legalism
4.11.2008 2:54pm
NI:
Snoot, the reason I think court balance is a good thing is not so much that they cancel each other out as that each of them is only right so often. (And candidly, I think Scalia would rather be conservative than right, and I think Reinhardt would rather be liberal than right.)

Sometimes the Scalia wing gets it right, and sometimes the Reinhardt wing gets it right. However, since each wing can only prevail if it gets five votes, having a balance forces neither wing to go too far off the deep end. While not perfect, I think a more or less balanced court will tend to get the right bottom line more often, or at least mitigate the damage when they get it wrong.
4.11.2008 3:01pm
Ohio Scrivner (mail):
One thing worth pondering is why Obama in his quote only calls for judges to have empathy toward certain people. I think the Reinhardt quote is more defensible if you read it as a general call for having judges who are empathetic. But once you start singling groups out for empathy from the bench, you are essentially picking favorites.
4.11.2008 3:06pm
Joe Kowalski (mail):
My understanding of Obama's theory of good jurisprudence is that 95% of cases can be decided simply by a thorough and narrow reading of the law and precedent. In the other 5% of cases, Obama believes there are very real gaps in the law and individual bias (liberal or conservative) inevitably comes into play. It's in these cases where Obama values having compassion and understanding of other's life experiences. From what I remember reading, Obama liked Robert's temperament and methodology that would apply to the 95% of cases, but he felt he failed in the other 5%. There was a Slate article a little while back in which an Obama staffer stated that a liberal version of Roberts would be his ideal. Now, whether such a person actually could exist is up for debate, but I really doubt that a younger clone of Reinhardt would fit that bill.
4.11.2008 3:06pm
OrinKerr:
Guest 101 writes:
Orin, do you seriously believe that everyone who thinks that the characteristics of a good judge include "compassion, sensitivity, empathy for others, and a commitment to the pursuit of justice" would turn into a Stephen Reinhardt on the bench?
Not only do I not believe it, I never said it!!
A more likely explanation: lots of people, including Obama, Reinhardt, and no doubt millions of others, believe that a good judge should possess those qualities, so it's hardly surprising that there's some overlap between these quotes.
Or, these terms have known meanings within the relevant community.
4.11.2008 3:09pm
LarryA (mail) (www):
It's a lawyer's job to make sure clients get every possible advantage over the other party. It's the judges job to make sure they don't.

The glaring difference between the quotes is that Obama's fails to mention justice, or by extension the law. It's like choosing a physician because he has a good bedside manner without considering whether he knows medicine.
4.11.2008 3:12pm
SeaDrive:

Of course, but I think the implicit point is that the judge should change the law so that the law becomes more compassionate and sensitive. Compare with the conservative version to the contrary, that the judge should not "legislate from the bench."


To me, it seems more like an intentional misunderstanding on your part. Judges have to ponder what the "reasonable man" might think, what standards to use to calculate the preponderance of evidence, what undue influence is, etc. Besides, it's pretty well established that the right wing is as quick to legislate from the bench as the left.

I guess the new format for this blog is "All 'bama bashing, all the time." Why not put in on the masthead?
4.11.2008 3:12pm
Roscoe B. Means:
Orin, do you really believe in the accuracy of these conservative stereotypes? Do you really believe that liberals "change" the law while conservatives simply "discover" it?

Obviously I can't speak for Orin, but I honestly do believe that this "stereotype" is at least 98% reality-rooted. In the almost 30 years I've been practicing law, I think you can count on your fingers the very few times when a major legal opinion has changed law in a way that does not favor the "progressive" view. People talk about a "swinging pendulum," but all I see is a constant press in one direction, with an occasional bit of frictional resistance that provokes nonsense allegations that the law has been "rolled back to the 1700's," or the like.
4.11.2008 3:16pm
Guest101:
As a district court clerk, one of the first things I was struck by is how many decisions in the pre-trial and trial stages of a case are left to the discretion of the court, which essentially means that the judge is free to do whatever he or she likes within a pretty broad range of reasonableness. The legalism-vs.-empathy dichotomy that Prof. Kerr and others try to set up overlooks the fact that there is more than enough play in the system, in the form of discretionary decisions, to permit individual judges to be compassionate, empathetic, or not, in situations that have nothing whatsoever to do with "discovering the law" vs. "legislating from the bench," because there is no law to be applied except for the judge's discretionary decision. And I've seen a fair number of judges make truly inhumane decisions in areas that are committed to the court's discretion and therefore effectively unreviewable, so I certainly share Obama's and Reinhardt's view that a judge who feels a professional obligation to exercise compassion for the downtrodden* wherever possible is, ceteris paribus, far preferable to one who does not. I don't see why one would need to be a liberal to feel that way, and I would be both surprised and disheartened if there were no conservatives who share that view.

* This does not tantamount, as Ohio Scrivener claims, to "picking favorites," but is simply a recognition that the proper objects of compassion are those who need to be cut a break. The rule of lenity is a prime example of an institutionalized form of this principle.
4.11.2008 3:18pm
procrastinating clerk (mail):
Obama,

Why don't we cut out the middle man and have the American people elect legislators with those qualities?
4.11.2008 3:19pm
adam C (mail):
Why not a poor, old, gay, disabled, African-American mom? Hey, I misread this post as pertaining to Judge Reinhold...
4.11.2008 3:25pm
Jay D:
Compassion, sensitivity, empathy, and "heart" should be disqualifiers.

I would replace the SCOTUS with nine computers designed by nine different, independent manufactureres programmed only with the US Constitution and a English Dictionary: 1787 edition.

Compassion is what the pardon power is for.

Who was it that said the best way to highlight a bad law is to enforce it vigorously?
4.11.2008 3:29pm
OrinKerr:
Guest101,

I absolutely agree with you at the trial court stage. Exercising discretion in an empathetic and sensitive way isn't just okay for a trial judge, it's absolutely required. A trial judge who does not feel compassion and empathy simply and categorically does not belong on the bench. But Obama is talking about the Supreme Court, not trial courts. The job of a trial judge and a Supreme Court Justice are profoundly different.
4.11.2008 3:31pm
The General:
How many poor, African-American, gay, disabled, elderly, former teenage mothers can be considered prospective Supreme Court justices right now?

I have to hand it to him. Obama sure does set the bar high!

Then again, that raises this question of Obama:

Will Obama nominate judges who favor the young teenage mom, the poor, or the African-American, or the gay, or the disabled, or the old in cases where the law, as it is written, says they should lose?

Of course, he'd say no, because he knows that the judges he appoints will simply rule that the law means something it doesn't say.
4.11.2008 3:33pm
Displaced Midwesterner (mail):
Roscoe B. Means said:

In the almost 30 years I've been practicing law, I think you can count on your fingers the very few times when a major legal opinion has changed law in a way that does not favor the "progressive" view.


You have a very interesting view of progressive apparently. To name just a few federal jurisdiction areas, since that is what I have been thinking of today: restriction on justiciability, the expansion of abstention doctrine, the restriction of habeas jurisdiction. There have been several cases in each of these areas within the last 30 years that have definitely moved the law in a way that most people I know who consider themselves "progresive" definitely consider them anything but. Those are just some random examples that occurred to me. I guess you count all the cases on your fingers, assuming you keep re-using your fingers over and over.
4.11.2008 3:34pm
The General:
Not only is Obama unqualified to be President, he isn't even qualified to be a Senator...
4.11.2008 3:34pm
tarheel:

In the almost 30 years I've been practicing law, I think you can count on your fingers the very few times when a major legal opinion has changed law in a way that does not favor the "progressive" view.

Of course this is true when you define any landmark ruling you don't like as "changing the law" and any one you do like as "rediscovering the true law."
4.11.2008 3:34pm
Keith in Dallas (mail):

This does not tantamount, as Ohio Scrivener claims, to "picking favorites," but is simply a recognition that the proper objects of compassion are those who need to be cut a break. The rule of lenity is a prime example of an institutionalized form of this principle.


Is recognizing who "need[s] to be cut a break" not pretty darn close, if not identical, to "picking favorites?

Look at it this way: if someone is downtrodden for some reason unrelated to the lawsuit in which they are a party, why would the judge need to cut them a break? And if that same party is downtrodden because of actions related to the lawsuit committed by the other side, then they don't need sympathy, they just need the relief to which they are entitled by the law. In neither of those scenarios is empathy called for.

To be honest, empathy strikes me as a poor quality for a judge.
4.11.2008 3:36pm
SeaDrive:

Obviously I can't speak for Orin, but I honestly do believe that this "stereotype" is at least 98% reality-rooted.


Leaving aside that you might have a perceptual bias, there could be a structural reason. Power accrues gradually to strong institutions, so a sudden change in direction (Brown vs Board of Ed, Miranda) is likely to favor the individual.
4.11.2008 3:41pm
DangerMouse:
A trial judge who does not feel compassion and empathy simply and categorically does not belong on the bench. But Obama is talking about the Supreme Court, not trial courts. The job of a trial judge and a Supreme Court Justice are profoundly different.

You're both right and wrong here, Orin. Yes, you're right that the jobs are profoundly different. But you're wrong that this distinction matters to Obama. He wants both appellate judges and trial judges with their thumbs on the scale: minorities should win over non-minorities, women over men, individuals over corporations, government over individuals (except when dealing with the police/executive branch run by Republicans), gays over non-gays, athiests over Christians, etc.

Liberals have proudly and explicitly embraced a system of justice that has nothing to do with fairness. It has everything to do with their thumbs on the scales.

And appellate vs. trial judges makes no difference. The appellate judge is to favor a criminal over the government in a case about trial procedures, the trial judge is supposed to favor the criminal over the government when the trial is being run. The overriding principle is that approved victims groups deserve positive outcomes in the justice system irrespective of facts or law.
4.11.2008 3:42pm
Jay D:
tarheal,

What are you trying to say? True law can't be rediscovered?
4.11.2008 3:42pm
Hoosier:
"Or it's an understanding that without a sense of empahty, it is not possible to call the balls and strikes fairly; a belief that when people say "neutral" they really mean is (or the actual effect is) that you call the balls and strikes in a way that favors another particular group (e.g., businesses, or state governments, or grousp espousing certain causes)."

I have coined a new term today: "Ideological Smuggling"

Anyone wanna guess what it refers to?
4.11.2008 3:43pm
Juan Inukshuk:
"Those comments are the exact opposite of what Chief Justice Roberts described as the appropriate role of a Judge during his confirmation hearings."

Judge Reinhardt notes this: One thing it [i.e. judging] is clearly not, however—it is not simply "call[ing] balls and strikes," as our Chief Justice told the Senate Judiciary Committee his function would be.8 In fact, as the last term of the Supreme Court demonstrates, his function is quite the opposite.
4.11.2008 3:43pm
Hoosier:
By the way, is he suggesting that the Supreme Court has historically lacked an understanding of what it means to be "old."
4.11.2008 3:45pm
OrinKerr:
Orin, do you really believe in the accuracy of these conservative stereotypes? Do you really believe that liberals "change" the law while conservatives simply "discover" it?

My take on this, more or less anyway, here.
4.11.2008 3:48pm
tarheel:
Jay D:

Not at all. Law can certainly be rediscovered and law can certainly be changed. My point is that those labels become meaningless when you only attach one to rulings you like and the other to those you don't like.

Serious question -- when something has been the law for 75 years or more, and then the Court shifts course, is that a rediscovery or a change?
4.11.2008 3:49pm
Brian Mac:
Orin Kerr

Can you explain to the layman (i.e. me) why empathy and sensitivity are valuable traits for a trial judge, but not for a SC justice?
4.11.2008 3:50pm
Cato (mail):
Obama misheard. He thought the question was what he was looking for in a son-in-law.

Oh BTW, do you think Reverend Wright meets those criteria? If Dubya could nominate Ms. Myers...
4.11.2008 4:03pm
Jay D:
tarheel: Serious question -- when something has been the law for 75 years or more, and then the Court shifts course, is that a rediscovery or a change?

Rediscovered. There is no statute of limitations on the constitution.
4.11.2008 4:06pm
Cory J (mail):
Brian Mac,

I can't speak for anyone else but the immediate concern for me is that appellate courts can rarely overturn a decisi

Trial judges see the witnesses, hear the testimony, and observe all the little minute things that go to credibility. They make decisions that cannot be overturned absent an abuse of discretion, which is obviously a very high standard.

Imagine a cold, heartless judge in an area like family law where trial judges have a lot of power. There's a lot of play in the joints for something like "best interests of the child" and weighing of factors. You want a judge who can observe those things with compassion and all those other qualities.

But once the case rises to appellate level, those same qualities would necessarily mean the judges have to decide who "should have won." Because they're bound by the abuse of discretion standard of review, overturning a result often means the law applied to the factual findings is going to be modified. The law of unintended consequences says those changes to the law can have some pretty significant impacts down the road.
4.11.2008 4:08pm
Cato (mail):
The single best question that can be asked of a prospective upreme Court appointee, at least one who actually has been a judge is this: "Can you name any cases in which you did not like the result of your decision?"

If the answer is yes, and he can actually name the case and explain the reasoning, you got a judge. If the answer is no, toss him out.
4.11.2008 4:08pm
Houston Lawyer:
I find it laughable that leftists are still pretending that the right is just as guilty as the left of making up constitutional law as it goes. Every once in a while, the right manages a slight rollback of some previously made up out of whole cloth doctrine like the "right" to abortion. Then the left jumps up and down and screams that the constitution has been repealed, etc. Very little of what passes for "constitutional law" these days is anything other than a leftist's wish list of what the constitution would have said if they had written it yesterday.
4.11.2008 4:09pm
Cory J (mail):
I forgot to finish my second paragraph (I wish we could edit posts!)

Just imagine I wrote, "I can't speak for anyone else, but here's my immediate concern." I originally intended to write something else, so everything following that is unnecessary.
4.11.2008 4:10pm
alkali (mail):
"Senator Kerr, I regret to say that it is not true that I shot a man in Reno just to watch him die, but let me be quick to add that I very much hope I have that opportunity one day."
4.11.2008 4:16pm
tarheel:
Houston Lawyer: Read the 11th Amendment, check out the lineup in Alden v. ME, and tell me again the right doesn't occasionally invent constitutional law.
4.11.2008 4:23pm
alias:
I'm not sure precisely how Obama and Reinhardt would tie "empathy" to the role of an appellate judge. The Reinhardt opinions I know of that seem to include appeals to empathy for the situation of minorities are the Harper v. Poway Unified School District cases (the anti-gay T-shirt cases). Not sure what to make of it.
4.11.2008 4:33pm
No One:
The only thing that surprises me here is that anyone would consider it newsworthy or debatable that Obama wants to nominate Steven Reinhardt clones to ever level of the federal bench. Of course he does. What else would anyone expect from the most liberal presidential candidate from a major party since George McGovern, if not ever?

My beef is not that Obama is going to pack the every bench with Reinhardt clones; it is that millions of people are going to vote for Obama with the foolish impression that he is a moderate who will appoint Breyer or even O'Connor clones.
4.11.2008 4:54pm
kelvin mccabe:
"Times of national emergency are when courts are needed most, when judges should rise to the occasion, fulfill their role, and do their full job. This is the time of greatest danger to constitutional rights, and so it is the time that courts should be most vigilant."

I wouldnt mind someone with the above approach to constitutional law during the never-ending 'global war on terror' on the Supreme Court. Posner and his suicide pact non-sense - - not so much.
4.11.2008 4:58pm
Displaced Midwesterner (mail):
Hoosier said:


I have coined a new term today: "Ideological Smuggling"

Anyone wanna guess what it refers to?


Perhaps the idea that when someone says they just want judges to be neutral that they are in fact smuggling in their own biases as to how that "neutrality" is exercised?

But when you come down to it, the real issue is not the vague platitudes that people spout that cannot really be disagreed with, but how people actually believe judges should decide cases, described in detail, not in empty rhetoric. For the right, the empty rhetoric tends to be things like neutrality and umpire and not legislating, etc., for the left it is generally fairness or empathy, etc. But really, both are devoid of any real content. There are certainly examples of judges on the left going overboard in the name of fairness or understanding, but also plenty of examples of judges on the right doing the same in the name of neutrality. The real question is what the rhetoric means.
4.11.2008 5:06pm
AntonK (mail):
But Reinhardt is the most reversed judge in the country.
4.11.2008 5:16pm
Oren:
I'm pretty sure Reinhardt would have ruled for Harper, despite his disagreement, but for the intervention of 'Bong Hits'.
4.11.2008 5:23pm
MarkField (mail):

But Reinhardt is the most reversed judge in the country.


Honi soit qui mal y pense.
4.11.2008 5:27pm
Alden fan:
Tarheel: Re Alden, you wrote


Houston Lawyer: Read the 11th Amendment, check out the lineup in Alden v. ME, and tell me again the right doesn't occasionally invent constitutional law.


While I accept that the outcome of Alden is debatable, I submit that it is misleading to cite only the 11th Amendment and then say that Alden made up law. You seem to be suggesting that the 11th Amendment's text does not mandate the Alden result, thus, the result was not based on text. But the Alden opinion is very upfront about saying that it is not based on the 11th Amendment; it is based on Article III, and on pre-constitutional understanding, and on how Article III confirmed that, etc. The 11th Amendment's reversal of Chisholm was merely a confirmation of that view of Article III and the "plan of the convention." Here's the summary at the beginning of the analysis, which plainly explains that the decision is not rooted in the 11th Amendment alone:


We have, as a result, sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity." The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.


Now, I will freely admit that there is a valid counter-argument about whether Alden was right or wrong in its view of Article III and the "plan of the convention" and all that. Thus, if someone says that "I don't buy Alden's view of Article III sovereign immunity," then I can respect that.

But if someone just says, "Alden isn't backed by 11th Amendment text, so there," then that's not being honest about what the opinion itself said, and it's not grappling with the hard part of the issue. After all, jurisdiction has to be affirmatively authorized by Article III before a statute can give jurisdiction, so even if the 11th Amendment does not bar jurisdiction in a case, that does not mean that jurisdiction automatically exists.
4.11.2008 5:49pm
CJColucci:
Barack Obama is a liberal Democrat and is likely to appoint judges conservative Republicans don't like. In other breaking news, the Pope is Catholic and a bear was spotted shitting in the woods.
4.11.2008 5:51pm
Discretion?:
I hear this talk about how one needs "empathy" and "understanding" to employ discretion, and the implicit notion is that some substantative norm other than the law is what should drive these discretionary considerations. It is that type of hubris, where a judge thinks that he or she knows best, that leads to judicial arrogance at the trial court level. Sure, discretionary considerations can be influenced by extra-legal considerations. But they shouldn't be. And when we emphasize compassion, empathy, and anything other than the law, we empower judges to try to substitute their preferences -- which everyone has -- for what the law requires. Discretion should be derived from the underlying substantive law; the law should not be a product of some unfettered discretion about what is "right" and "just." No doubt a person must bring good judgment into the equation, but that judgement has everything to do with trying to decide what the appropriate legal decision is given the substantive dictates of the law; it is not a license for that person to substitute their judgment or what they think is "just."
4.11.2008 5:58pm
tarheel:

Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear . . .

Sounds suspiciously like a penumbra to me.

I agree that the history and subtext (not to mention stare decisis) tend to support the outcome in Alden . I just don't think the actual text of the Constitution supports it, and I keep hearing from many on the right that the text is all that matters.
4.11.2008 6:00pm
John Burgess (mail) (www):
Two words: Pelican Brief
4.11.2008 6:08pm
ohgoodgrief (mail):
Steven Reinhardt's wife is/was Ramona Ripston head of the ACLU of So. California as I recall.
4.11.2008 6:16pm
Trevor Morrison (mail):
Orin, you claim that the "implicit point" in the passages from both Obama and Reinhardt is that "the judge should change the law so that the law becomes more compassionate and sensitive." This is either a fair characterization of Obama's and/or Reinhardt's views, or it isn't. Can you point to anything (other than ambiguous statements like the one you've quoted) that provides a basis for believing that Obama thinks judges should actively "change the law" in the name of compassion? Isn't it at least equally plausible that he's simply saying Justices should be empathic and compassionate in the (many) cases before the Court were the law is unclear and thus contains no stable position to "change"? Especially in terms of one's theory of judging, there's a big difference between these two positions, no?
4.11.2008 6:27pm
Paul Milligan (mail) (www):
IOW, Obama wants a screaming left-wing nutjob who thinks it's his job to invent laws from the bench 'to help black people and gays and the poor'.

God help us all, if this asshole ever lives in the White House.

Once he gets in the general election, his blatant racism ( among other things ) will keep him out of office, I hope. I don't think we're quite ready yet for a New Black Panther to get appointed to a Cabinet position.

Nor, for that matter, do we need a President named Barack HUSSEIN Obama, whose roots are in Kenya and Indonesia, rather than AMERICA.

I wonder how much of an issue the Dems will try to make of 'war hero' THIS time around, like they did with sKerry ???? Hmmm...... all of a sudden, they don't think military experience counts any more .... go figure.

Of course, Shrillary landed under sniper fire 'For America's Sake' , right ? Damn, that little girl that read her a poem and handed her flowers on the tarmac didn't even look like she was armed ....
4.11.2008 6:34pm
alias:
Still on that Learned Hand satire...
4.11.2008 6:50pm
Displaced Midwesterner (mail):
Paul,

Since only the HUSSEIN is capitalized in Barack HUSSEIN Obama, does that mean he is 1/3 legal fiction, 2/3 sovereign citizen?
4.11.2008 7:29pm
wooga:
Can you point to anything (other than ambiguous statements like the one you've quoted) that provides a basis for believing that Obama thinks judges should actively "change the law" in the name of compassion?

I thought that was the whole premise of the "Living Constitution." That it was open to change to meet the 'ever marching progress of American morals' or some such thing. As the judges are the only ones who get to divine what the "Living Constitution" says at any given moment, they must inherently be actively changing the law in the name of compassion (unless they think joe six pack is getting more ruthless with time - a silly proposition).

Isn't Obama all about the change?

BTW, every time I hear it, 'change' makes me think of the South Park episode with the homeless mobs droning "change? change?"
4.11.2008 7:56pm
phants (mail):
*Its not calling balls and strikes the same for everyone.*

Three umpires were asked -

The first said: I call 'em what they are...

The second said: I calls 'em the way I sees 'em...

The third said: They ain't nothin' until I call them...
4.11.2008 7:57pm
RightTheFirstTime:
Hmmmm... maybe it's just me, but the first thing I thought when I read this post was: "There's nothing more pathetic than a snotty law professor." Then I thought: "Self, you're being too hard on the man." Then I read the comments. I was right the first time.
4.11.2008 8:09pm
Mike Keenan:
Paul must be an Obama supporter trying to make his detractors look insane...
4.11.2008 8:14pm
frankcross (mail):
Alden Fan, that's a good defense but you must realize its weakness. Wasn't the expansion of sovereign immunity in 11th Amendment itself a response to a Court decision on its limits? Doesn't that cast into considerable doubt the theory that more expansive notions of sovereign immunity can be drawn from the preexisting law?
4.11.2008 8:23pm
C. Norris (mail):
Judge Stephen Reinhardt:.."and a commitment to the pursuit of justice."

I should like to know "just" what is Judge R'hardt's definition of "justice".

The best definition of justice is one that I learned from an Army JAG Colonel: "Justice must first comfort the innocent and then capture and punish the guilty, in that order and in equal amounts." The Colonel said that "justice" was to human affairs what the equal sign is in a mathematic equation.

I have never forgotten that basic, yet profound, definition. I doubt if Judge R'hardt could ever comprehend it. His ways have been to punish the innocent for what the guilty did to somebody else, at another place and another time. A jurists vendetta is not justice. It is simply a form of extortion.
4.11.2008 8:29pm
Barbara Skolaut (mail):
Interesting that he never says the ONE thing most important for a Supreme Court justice: That the justice follow the Constitution (the actual one, not the one the justice or his cronies would like to have).
4.11.2008 8:32pm
Gaius Marius:
Barack Hussein Obama is the most unqualified candidate for POTUS since James Buchanan.
4.11.2008 10:37pm
Cornellian (mail):
I'm kinda partial to Posner.
4.11.2008 10:51pm
Hoosier:
Displaced Midwesterner: "Perhaps the idea that when someone says they just want judges to be neutral that they are in fact smuggling in their own biases as to how that "neutrality" is exercised? "

Oh, for Pete's sake. This is a game for English Department faculties, not for people who deal with the tangible world.

Displaced, you need to get back here to the Midwest quickly. I think you're losing your "earthiness."
4.11.2008 10:56pm
frankcross (mail):
Gaius, you're embarrassing yourself on history. Qualifications are pretty subjective, but James Buchanan had much higher qualifications than many of the Presidents who succeeded him. You just picked his name out of a hat, right?
4.11.2008 11:45pm
Thoughtful (mail):
That's an outrageous thing to say about James Buchanan. I just WISH our current crowd of Presidential candidates knew half as much about Public Choice. I, for one, would love to see a Nobel Laureate in Economics as President.

What? The *other* James Buchanan? What other James Buchanan??
4.12.2008 12:08am
Oren:
If this discussion had happened in real life, I imagine there would be pitchforks at this point. Thank the gods for the internet.
4.12.2008 12:49am
Oren:
Also, OT, for Orin.
4.12.2008 12:51am
Tony Tutins (mail):

ONE thing most important for a Supreme Court justice: That the justice follow the Constitution

Oh yah, that's clear: The same Constitution that said segregated schools were OK also said segregated schools were not OK. And after half a century of widening the Commerce Clause into an absolute grant of police power to the Feds, the Court finally put some limits to it.
4.12.2008 1:02am
Displaced Midwesterner (mail):
Hoosier,

I'm not sure it's really an English department parlor game. The basic idea is that people, especially when talking about something political, are often full of BS. So you don't take them at their words. You look at their actions. If they say judges should be neutral, and they point to judges that actually are in practice, then that is good. If they say judges should be empathetic, and they point to judges who apply the law with a sense of the way the world really works, then that is also good. But too many people who say judges should be neutral really mean that judges should seek conservative results. And too many people who say judges should be understanding really mean that judges should seek liberal results. I'm not saying that you or anyone else here falls into those categories - I don't know enough about you all to make that judgment. But far too many do fall into those categories.

And I don't know about needing to get to get back to the Midwest quick. I'll probably become more liberal. :) When I'm among liberals, I generally push a more conservative line. When among more conservative folk, I like to defend liberals. This blog is mostly liberterian, with some right leaning, so I tend to be more liberal in my comments. I guess at the end of the day I am just a contrarian, which is a political persuasion I am happy to be.

Although it would be good to be where knowing how to make a good steak is the rule, not the exception.
4.12.2008 1:27am
Hoosier:
Displaced:
"Although it would be good to be where knowing how to make a good steak is the rule, not the exception."

And I'm a vegetarian, so no help here. Perhaps you and I shoud *switch* locations. Although, as you may remember, contrarians don't fit in all that well in the Midwest. It's just not "nice" enough.

Thanks for your thoughtful answer.

(Pathetic Boosterism alert) And be sure to take your next vacation in Indianapolis!
4.12.2008 1:35am
Tony Tutins (mail):

be sure to take your next vacation in Indianapolis!

There are more Bob Evans restaurants in Indy than anywhere else in the country!

Where are the vacation spots in Indiana? Other than Indiana Beach and Michigan City, Indiana has always been a state I've driven through to get some place else. Unless I was buying fireworks.
4.12.2008 1:48am
Displaced Midwesterner (mail):
Hoosier,

My condolences on the vegetarianism. I will take the Indianapolis thing under consideration though. I've passed through a couple of times, but never really stayed. I'll probably end up there again later this summer, though, on my way to hitting a couple of states that I need to add to my list to say I've visited all 50 states (41 so far!). When I do, I'll consider staying for a little while.

And I think contrarians fit in nicely in the Midwest - we just don't fit in comfortably.
4.12.2008 2:15am
Mary Katherine Day-Petrano (mail):
"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

To find THAT person, Obama would have to look outside anyone who is now or has been a judge anywhere, loo outside anyone who is a lawyer now or has been anywhere, and look to persons who have been excluded from those circles due to race, disability, poverty, or some irrational reason.

Example, person who is blind or with autism who uses only electronic Internet formats that State, federal bankruptcy and appellate levels, and United States Supreme Court do not provide -- persons excluded not because of any inability but solely because of barriers to screen readers or voice-recognition.

I always thought Judge Reinhardt was a very good judge when I litigated in the Ninth Circuit, but to get real diversity, a candidate needs to be selected from those who have been excluded from The Select existing Bar and Bench for reasons that are nothing more than PURE discrimination.
4.12.2008 1:59pm
U.Va. 3L:
To find THAT person, Obama would have to look outside anyone who is now or has been a judge anywhere, loo outside anyone who is a lawyer now or has been anywhere, and look to persons who have been excluded from those circles due to race, disability, poverty, or some irrational reason.

No one on the bench or practicing law anywhere in the United States has those qualifications?

Something tells me there are a number of judges currently on the bench who, despite your silliness, meet those qualifications. Heck, just among 6th Circuit judges in Detroit, Damon Keith and Cornelia Kennedy come to mind.
4.12.2008 6:15pm
Hoosier:
Displaced:

It isn't that hard to get along here. Some tips--If you're in:

Minn or Iowa: Bring a "hot-dish" to the socail at the Lutheran Church

Wisc: Bring beer to trivia night at Holy Rosary

Western Mich: Claim to be Dutch

Eastern Mich: Claim to not be Dutch

Illinois: If you're a Cubs fan, let people know. If you're a Sox fan, just stay the Hell out; we've got enough of your kind already, thank you very much.

Etc.
4.12.2008 6:22pm
Paul Milligan (mail) (www):
Tony - "The same Constitution that said segregated schools were OK also said segregated schools were not OK."

Wow - I totally missed the words ' segregated schools' in the Consitution. I would have sworn they aren't there. Could you refresh me as to the Article and Clause that mentions them ?
4.12.2008 6:46pm
Brian G (mail) (www):
Reinhardt, the most worthless and overturned judge in America is exactly who Obama would nomiate if he wasn't so old. Even though there is really no basis to do so, if I were a Republican legislator, I would have made a spectacle of trying to impeach him at some point.
4.12.2008 7:16pm
Brian G (mail) (www):

Not only is Obama unqualified to be President, he isn't even qualified to be a Senator...


Sure he is General. He's old enough.

When Obama loses, and he will, we are all going to be called racists because he and his whiny wife won't be able to accept that the reason he lost is because the majority of the country does not like him or his Socialist policies.
4.12.2008 7:24pm
Oren:
Wow - I totally missed the words ' segregated schools' in the Consitution. I would have sworn they aren't there.
What you totally missed was the point: the Constitution doesn't say anything about segregated schools an yet the SCOTUS still has to rule on it. It is not always apparent how the generalities in the Constitution apply to the specifics of particular disputes. In fact, in the case of segregated schools, it was so unclear that the SCOTUS interpreted the same Constitution in two opposite ways.
4.13.2008 12:23am
PersonFromPorlock:

In fact, in the case of segregated schools, it was so unclear that the SCOTUS interpreted the same Constitution in two opposite ways.

Um, maybe. Or maybe they were just following the election returns in both cases.
4.13.2008 1:09pm
U.Va. 3L:
Or maybe they were just following the election returns in both cases.

It would be more accurate to say that they were following the general opinion of the elite circles in which Supreme Court Justices travel. In fact, the only election returns we have direct evidence the Warren Court paid attention to in the Segregation Cases were those of the segregationist Little Rock School Board, which were discussed at conference in Cooper v. Aaron.
4.13.2008 2:14pm
Oren:
Um, maybe. Or maybe they were just following the election returns in both cases.
That's a quite terrifying thought - the meaning of the Constitution depends on the results of elections? Gods save us all.
4.13.2008 3:29pm
CDR D (mail):
The meaning of the Constitution DOES depend on the results of elections.

The appointment and confirmation process has seen to that.

The people got wise to that over the last 3 or 4 decades.

>>>"God save us all"<<<

Yep.
4.13.2008 7:23pm