Yes, the content of what Obama has meant by "empathy" has always been unclear and problematic. In the criminal law context, for example, does it mean empathy for powerless criminal defendants, or empathy for powerless victims of alleged crimes? I've been surprised that commentators have taken it so seriously, as a tangible indicator of what he's looking for in a Supreme Court Justice, and not as the mere political tag (like "compassionate conservative") designed to curry favor with voters that it is.

Just noting a typo in the interview transcript. The phrase "I thought empathy wasn't important quality" seemingly should be "I thought empathy was an important quality".

Obviously, you want somebody who is highly qualified, who knows the law. I want somebody who, obviously, has a clear sense of our constitution and its history and is committed to fidelity to the law.

Well if that is the case then we shouldn't be deciding discrimination cases in the federal courts because the "clear sense of our constitution and its history" says that belongs with state courts under their own laws.

I guess that by empathy, President Obama means a judge who is willing to invent the facts to support a sympathetic plaintiff. At least, that's how I interpret his mischaracterization of the facts in the Ledbetter case, where I don't believe there was any evidence at all that she filed suit as soon as she learned she had been underpaid years before.

given his past record at HLR, he is likely serious about the precedence he gives to the law and its history

Was it at Harvard that he learned that the President runs the auto and financial sectors of the economy?

Oh, for god's sake people. This is Obama. He uses words as tools to induce feelings and conduct, and any relationship to his actual intention is merely a happy coincidence.

Don't we all know he is going to appoint some wild-ass liberal to replace Souter and every other judge he gets a chance to replace? Of course we do. The rest is just word salad, and there is no point trying to figure out what he "means." What he means is, "calm down, and I hereby utter the words designed to bring that about."

President Obama's discussion of what he looks for in a judicial nominee during Friday's C-SPAN interview:

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

In short, Mr. Obama wants judges who have no problem rewriting the law in front of them to achieve Mr. Obama's desired outcomes.

Wonderful.

Bart,

I too noticed the Ledbetter discussion and found it puzzling. His discussion of the case sounded like the ill-informed soundbites from activists-- "It doesn't make sense for their rights to be foreclosed," as if that were not the very purpose of statutes of limitation, the case were not a question of statutory interpretation, and the judges were doing nothing more than reasoning from first principles about what to do in the case.

Ledbetter is a very poor example for Democrats to claim as bad reasoning by a Republican majority (there are a lot better ones out there). Indeed it's almost troubling: here you have in Ledbetter a case where even a liberal judge would admit the statutory case for the plaintiff is shaky; "screw it, I like plaintiffs more than defendants" is a legit answer for a congressman but do we really want to have judges going down that road?

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they're interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance. So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work that's helpful.

This is a muddled bunch of spaghetti, and he's obviously just searching for a way to get the word "farmer" into his monologue, while also getting in some riffs about "regulation" and "business".

Better to just leave the "empathy" nonsense out of the discussion, because any attempt to explain what empathy really is just exposes him as just another pol seeking outcomes.

I always assumed when Obama says he "wants judges that have empathy" he means he wants judges that will make laws that are politically unpopular but Democrats would like to have made.

Also, given precedent and stare decisis, he would like Justices to make laws that can’t be repealed or easily overturned. He would like to end debate on a given subject and carve the results he wants in stone.

I short, he wants a Justice with "empathy".

If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality. Maybe the idea is someone who is a purposivist rather than a textualist when it comes to statutory interpretation? I'm not sure.

Indeed, I still am not sure at all what Obama means by "empathy."

I continue to think it is mostly undefined rhetoric aimed at the galleries -- "change" as applied to SCOTUS -- rather than a coherent criterion for selecting a nominee. Or it may be that Obama just means liberals have empathy and conservatives don't.

In any case, we can reliably expect that Obama will nominate a liberal, and he will laud that nominee's empathy. A talented politician could find empathy in almost anyone short of Cruella de Vil.

At least, that's how I interpret his mischaracterization of the facts in the Ledbetter case, where I don't believe there was any evidence at all that she filed suit as soon as she learned she had been underpaid years before.

The jury found otherwise, but that's not even the matter under contention. The SCOTUS ruled that the statute of limitation just doesn't toll starting when one learns of the allegedly discriminatory act. That is, it doesn't matter what anyone thinks about when the plaintiff learned about the wrongdoing because the limit doesn't toll in the first place.

For some reason I am reminded of Kingman Brewster, the former president of Yale University back when the Black Panther trials in New Haven were going on. Brewster famously said he doubted that a black man could get a fair trial in America. When someone asked him what he meant by a "fair trial," he answered that a fair trial was one in which the defendant had a fifty percent chance of being acquitted.

As an example, let me suggest the "use a gun" case. "Using" a gun during the commission of a felony would not, except to someone Spockishly literal, mean "trading the gun for drugs".

It takes Spockish literalism to note that one way to 'use' an item is to barter it? A google search of "use money" turns up nearly three million results, and going through the results shows that most of them mean it in exactly that sense. In the absence of a statutory definition that is narrower than the every day usage, 'using a gun' must include trading it.

By "empathy" I hope he means an angry lesbian

Hard to see how there is shaky anything there. Every time that the defendant paid the plaintiff less than her male colleagues, they violated 29USC206(d). Each paycheck is a discrete injury because each paycheck violates the statue anew.

The paycheck doesn't violate the statute, because the violation is based on intent, and the paycheck has no intent. The decision about how much to pay Ledbetter was made years before she filed suit, by someone who might not have been her supervisor -- or even employed by Goodyear -- at the time she filed suit. Even Ledbetter herself didn't claim that Goodyear acted with discriminatory intent within the charging period by issuing the checks.

Sorry if that doesn't convince you. It seems to have convinced five Justices.

The dissent in Ledbetter shows how shaky the statutory argument was. The entire thing is basically one long policy argument completely unmoored from the text. The law being interpreted literally, and then Congress changing it because it didn't like the law it had passed, is how the system is supposed to work.

It seems to me that the whole "empathy" criterion is just another one of Obama's straw men. To put it in his usual phrasing, "Some judges believe the practical impact of laws is not important".

It takes Spockish literalism to note that one way to 'use' an item is to barter it? A google search of "use money" turns up nearly three million results, and going through the results shows that most of them mean it in exactly that sense. In the absence of a statutory definition that is narrower than the every day usage, 'using a gun' must include trading it.

We know that Leonard Nimoy is not Spock; I guess we now have a candidate.

Thanks for reinforcing my point: we use words in different ways, just as we "use" real world objects in different ways. The ordinary meaning of "using" money involves trading it from person to person. That's not at all the ordinary meaning of "using" a gun. The failure to make such distinctions is precisely the problem with unthinking textualism.

Last I checked, though, no one believes that misunderstanding the world is a good thing, and even Justices like Scalia have a strong pragmatic streak. If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality.

But the issue is not whether a Justice, or anyone else, thinks misunderstanding the world is a good thing. The issue is whether they do in fact understand the world. More precisely, it is whether they can grasp how people with vastly different life experiences understand the world.

bc4 offers some examples. I'm not familiar with the cases, but they sound like the sort of thing I'm talking about. Another is the discussion we've had on some threads about traffic stops. I've been surprised that soem of the lawyers commenting seem to assume that the average person is well familiar with his rights in that situation. I don't think that's correct. I'm sure I would fail a quiz on the subject.

In the criminal law context, for example, does it mean empathy for powerless criminal defendants, or empathy for powerless victims of alleged crimes?

Why not both? Empathy does not imply bias.

I remember that discrimination case. Didn't congress explicitly limit the time within which suits could be brought and wasn't she clearly on the wrong side of that limitation?

And wasn't there even a claim under a specific statute (the Equal Pay Act) which her lawyer failed to appeal upon?

But hey-- malpractice, like statutory language, is nothing in the face of "empathy" for the side you'd like to win.

Will empathy join pornography.? As in "I' know it when I see it."

More and more Obama seems a pragmatic sort that is really vague about that idealism everyone thought they voted for.

Also, it is absurd to assume that when congress said "use a gun during the commission of a crime" that they meant anything other than "use a gun as a weapon during the commission of a crime."

I think it was Scalia who said that if someone asks you if you use a cane, they don't mean "do you use a cane as a decoration on your wall?" They mean "do you use one as an aid to walking?"

The analogy to "use money" is silly because the sole purpose of money is to act as a store of value and an instrument of trade. Guns are weapons, not currency. That a gun can be used in a manner similar to currency does not change the fact that such a use is very far from what any ordinary person would mean by "use a gun."

Obama is deliberately misstating the facts of the Ledbetter case, and he knows it. Ledbetter knew for years about the pay discrepancy she later claimed was discriminatory -- and in spite of that, she still could perhaps have prevailed had her incompetent lawyer not pressed her claim solely under the discrimination law with the shortest deadline, rather than one with a longer deadline.

The Obama campaign made the Ledbetter decision a major campaign issue by bashing and distorting it. Both the Obama Administration and Obama campaign made easily verifiable false claims about the decision.

In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited more than five years after learning of pay disparities to file an EEOC complaint, and more than a decade after her pay was allegedly set lower than her male peers, could not later sue for discrimination under a civil-rights law known as Title VII, since that law has a 180-deadline. In its ruling, the Court held that plaintiffs generally must sue within 180 days after a discriminatory pay level is set, and that it is not enough that the plaintiff sued within 180 days after a subsequent paycheck or pension benefit affected by the discrimination, which could be many, many years later.

The court specifically left open, however, the possibility that a plaintiff could sue more than 180 days after the discriminatory pay decision if the plaintiff did not discover that the decision was discriminatory until much later. In footnote 10 of its decision, it wrote, "We have previously declined to address whether Title VII suits are amenable to a discovery rule. . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue."

The plaintiff, Lilly Ledbetter, had admitted in her deposition that she had been informed by 1992 of the pay disparity she later sued over, and had cited it herself to her boss by 1995. As even the liberal employment lawyer David Copus, who brought landmark pay discrimination lawsuits for the EEOC, has noted, Ledbetter suspected for years that she was discriminated against, and the Supreme Court left intact employees' ability to sue when employer deception leaves employees unaware of discrimination against them. See Davis A. Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, “Ledbetter admitted at her deposition that ‘different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.’ She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she ‘needed to earn an increase in pay’ because she ‘wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.’” Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

As legal commentator Stuart Taylor observed in the National Journal, "Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim." See Stuart Taylor, "Does the Ledbetter Law Benefit Workers, or Lawyers? Democrats and the Media Have Distorted the Facts Underlying the New Equal Pay Law," National Journal, Jan. 31, 2009.

Given Ledbetter’s tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn’t even claim that she could take advantage of the Supreme Court’s exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as “equitable tolling” and “estoppel.” See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) ("filing a timely charge of discrimination with the EEOC is . . . a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling").

In signing his first bill into law -- a bill to override the Supreme Court's Ledbetter decision -- Obama didn’t let facts get in the way of a good story, or milking a political wedge issue. He falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely.

Similarly, the White House falsely claimed that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

This is misleading, and perhaps knowingly so, since the White House linked to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, “we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.” In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

But in the 2008 election campaign, Obama and state democratic parties falsely claimed that the Supreme Court had created a rigid 180-day deadline for bringing discrimination claims, regardless of whether the employer conceals evidence of discrimination. The 2008 campaign featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women, simply because he did not support a bill to override the Supreme Court's Ledbetter decision. Amazingly, the McCain campaign did almost nothing to counter those attacks.

Press coverage suggesting that the Ledbetter decision created a rigid 180-day deadline for pay discrimination claims was also faulty because it ignored the fact that the 180-day deadline only applies to plaintiffs who choose to sue only under the law with the shortest deadline, Title VII. Pay discrimination claims can also be brought under the Equal Pay Act, which has a longer three-year deadline for most claims, and more generous accrual rules as well. And race discrimination claims can be brought under 42 USC 1981, which has a long four-year deadline.

The Supreme Court specifically noted that the plaintiff could have sued instead under the Equal Pay Act, observing that plaintiff “having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.” Plaintiff Ledbetter's lawyer admitted to the court that he had goofed by failing to press her claim under that law.

In short, it wasn't the Supreme Court that prevented Ledbetter from suing: it was her own incompetent lawyer, and her own tardiness in suing after she learned of the pay disparities she claimed were discriminatory.

A minority of four justices on the Supreme Court agreed with this view, as did a majority of the U.S. House and Senate in January 2009, as evidenced by the passage of the Lilly Ledbetter Fair Pay Act of 2009.

False. Changing the law in response to a supreme court decision does not indicate Congress's disagreement with the interpretation, just with the result. Any other result is absurdity; Congress would be powerless to change policy, lest they be seen as repudiating interpretation.

If you read the dissent in Ledbetter, the dissent hardly pretends with the veneer of a statutory construction argument; they base their reading almost entirely on policy determinations, policy determinations they are ill-suited to make from the bench

RPT, no one thinks that she's a villain. Suppose we reaplace the U.S. Code with the following simple statute: "The villain shall always lose in court, and the opposing party shall always win." The U.S. Code would be a lot simpler and a lot shorter, but do we really want to put judges in charge of the country?

The fact that Obama has managed to convince himself that this was a difficult question requiring special empathic talents says a lot about his supposed talent as a legal scholar.


Most cases that get to SCOTUS and result in a 5-4 split are clearly *easy* questions of law, and Jim at FSU is right in calling out Obama, who only graduated from some random law school with an undistinguished resume (I doubt he was even on law review), and then probably didn't even teach, or if he did, taught at some no-name place (perhaps in Tallahassee). Indeed.

Can't we get to the point where we acknowledge that reasonable people can have differing opinions, even if we think they're wrong? I gather Ginsburg and Scalia have gotten to there.

If you separate out the malpractice of her attorney (for failing to bring a suit on grounds that hadn't been foreclosed by SOL) and the "hard question" that had previously been before the court, the actual question is a ridiculously simple one. Was she past the statute of limitations? Clearly the answer is YES.

so you're denying the supreme court has the ability to change or modify it's own prior rulings?

To turn the phrase someone used earlier, four justices disagreed with the proposition too. So it's clearly not quite as straightforward as you're arguing.

Furthermore, you're simply blatantly misrepresenting the facts of United Airlines vs Evans.

In Evans, United Had a policy prohibiting flight female attendants from being married. Evans got married and was asked to resign in 1968, she took no action. Subsequently, someone else brought a suit and it was decided that such a rule violated Title VII.

In 1972, Evans was rehired, and she sued for recognition for the time she was unemployed under United's Seniority system (a higher salary eventually) as well a suing for damages for her termination 5 years earlier.

The opinion by Stevens first held that her claim for wrongful termination was barred and secondly held that the "discriminatory act" did not continue simply because upon being rehired she was not credited for seniority time. The court said the past discriminatory act was unfortunate, but she was in the same class as all other employees that had quit in 1968 and been rehired in 1972 regardless of the reason.

Is the case relevant to Ledbetter? Certainly. But it's absolutely not exactly on point. The The true question in Ledbetter is whether there's a new violation each time you're paid or when your payment decision is made, because Ledbetter filed suit within the time period for her payment, but not after the decision.

Regardless of what you think the answer to that question should have been, pretending like it was an open and shut case is simply dishonest.

Ben P, are you aware that Justice Stevens wrote the following in Evans?

"United's seniority system does indeed have a continuing impact on her pay and fringe benefits."

Hans, I based my understanding of Ledbetter's case on the Supreme Court's decision, did you review the record below?

I did not see any facts in the majority or dissent to suggest that Ledbetter knew, 5 years before she filed suit, that she was being paid less than her male counterparts. I personally would have a different view of the outcome in that case if these facts were true, or if a jury had so found. At the very least, it might put one on inquiry notice.

I do think you overstate things when you say that the majority's opinion is grossly distorted because the Democrats/Obama fail to mention that Ledbetter could have argued for equitable tolling.

I agree that the decision does not foreclose equitable tolling, but it hardly endorses it either. But, your post is good in pointing out the grey areas of this decision that have been overlooked by partisans. I stated this was not a simple statutory construction case, and I stand by that characterization. If it were so easy, I don't think the circuits would have split on the issue.

In the 1977 Evans case, Carolyn Evans was presently being paid less than her colleagues for the discriminatory reason that she had wrongly been denied seniority years earlier, just like Ledbetter had been denied a promotion years before her lawsuit.

In the 1977 Evans case, Carolyn Evans was presently being paid less than her colleagues for the discriminatory reason that she had wrongly been denied seniority years earlier, just like Ledbetter had been denied a promotion years before her lawsuit.

I think the facts are distinguishable.

In Evans, the discriminatory act was the policy that led to her resigning in 68. The statute passed on that instance of discrimination. Her subsequent difference in pay was the result of a neutral policy that treated her the same as all other employees that started in 1972 (and quit for whatever in

In Ledbetter, the decision was made that directly led to the discriminatory act. There was no neutrally applied policy in the middle. They discriminatorially decided to pay her less, and she was paid less through her career.

Ben P, Ledbetter submitted the following question to SCOTUS:

Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.

There was no continuing discrimination in Ledbetter, only continuing effects of discrimination, just like in Evans.

Oren,

The SCOTUS ruled that the statute of limitation just doesn't toll starting when until one learns of the allegedly discriminatory act.

I assume that's what you meant.

Also, it is absurd to assume that when congress said "use a gun during the commission of a crime" that they meant anything other than "use a gun as a weapon during the commission of a crime."

How about this fact pattern? Crook trades gun for gas to fill up the getaway car. Crook then robs a bank with no weapon, only vague threats. Did crook use a gun in the commission of the bank robbery? I think I just wrote a good law exam question for the next time Prof. Kerr teaches crim. law.

Constantin:

Which of Barack's understandings do you mean? The entire point of the original post is that his take on empathy seems to have changed.

That's one reading. Another is that you read his prior statements as conforming to the caricature painted by his opponents. A few days ago on another thread I suggested that empathy is simply a means or informing a better understanding of the facts. Was I clairvoyantly channeling Obama's later C-SPAN interview? No, it's just the proper role I see for empathy in a Supreme Court Justice. It's also a reasonable way someone not looking for confirmation that Obama has an extremist, activist agenda could read what he's been saying all along.

DG said:

If someone isn't being paid enough, why not just quit? If someone is being paid less because they are a woman, why not organize a boycott? Why not take it to the streets or the Internet and use group power to punish those who offend against your group?

I don't see why the courts should be involved at all.

Only someone who has been paid too much for doing too little for far too long would make comments like this.

Sure: a poor, relatively ill educated working class black woman is going to quit her job, organise a boycott, use the Internet to create a mass movement against her employer etc.

Perhaps she should fly to the moon and collect space diamonds for a living?


Obama said:

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

I think Obama means, when he uses the word 'empathy', that Judges should avoid the ludicrous sort of reasoning that DG engages in.
That Judges should accept that education and financial opportunity are apposite considerations.
That extrinsic material should be considered in statutory interpretation.
That the mischeif being addressed by a statute (when it was created) should be considered when a strict literal interpretation is nonsensical or plain undjust.

In other words obama suggests that America might want to join most other developed countries in encouraging the Judiciary to cast off the false cloak of 'discovering law' and rather explicate their interpretations (law making) in a manner which makes the interpretation of statute open and transparent.

Here's a thought: He's a politician. Why should we attach any degree of confidence in anything he says about what wants in a Supreme Court justice?

Obama seems to mean that empathy is really a tool to help decide what is truly normative. In Ledbetter's case, her pay disparity, was to him, continuing, normal discrimination of which she was reasonably unaware. The quality of empathy would help a justice arrive at that interpretation, and that would inform his or her holding on the Title VII SOL.

Incidentally, in my rather worthless view, the case of Ledbetter was not an extension of Evans or Morgan but properly an extension of Bazemore. The majority did not distinguish the holding of Bazemore sufficiently. I found it highly ironic that the majority wanted the quoted section of Evans to ring out as precdent in this case, while Bazemore's case dealt directly with continuing pay disparities rooted in intentional discrimination. It held that a discriminatory pay system beyond the SOL was not immune from suit under VII.

I also think it's reflective of the bizarre heat cast on this particular decision that none of the commenters here --commenters, not advocates -- have even mentioned Bazemore. Evans was the victim of a policy that forced her to leave the airline; she later returned to employment with the company and wanted to apply Title VII. I find that a very imperfect analogy for someone whose employment was never terminated, but who was instead quietly subjected to a discriminatory policy whose effects continued in silence for years. The ongoing and disguised nature of the discrimination is crucial in an evaluation of SOL, isn't it? Evans was a single act of discrimination -- termination. And Evans is quite separate from Ledbetter on this account, isn't it? You can say of Evans that her returning to employment with the same firm contributed directly to the disparity she suffered. Can you say the same of Ledbetter?

The case is far more like Bazemore, which ruled for the plaintiff. And I have no idea what the EPA filing has to do with the SOL of Title VII. Is it relevant for purposes of interpretation that the lawyer didn't refile under the EPA, or merely for purposes of characterizing the plaintiff as someone who doesn't deserve a favorable ruling?

To elaborate on the question of empathy, I was discussing how empathy can be used. But I agree with LM. Empathy is rooted in imagination, and it's also necessary to understand the full scope and context of one's rulings as a judge. I would want any justice to have that quality. I assume the issue is that some think of judges as technicians whose empathy and imagination don't come into play.

No, I believe he learned those (the latter literally and the former by logical extension) from his Republican predecessor.

Funny, he hasn't expressed gratitude for learning of these sweeping powers from his Republican predecessor. Though come to think of it, he hasn't had a nice word regarding any of his predecessor's decisions he's decided to follow.

Funny, too, that Mr Harvard Law Review is learning about the Constitution from old George W, isn't it?

Sure: a poor, relatively ill educated working class black woman is going to quit her job, organise a boycott, use the Internet to create a mass movement against her employer etc.
Rubbish, old chap! Can you imagine the audacity of these Republicans, claiming the Negroes could understand a computer? And who ever heard of a poor, relatively ill educated working class black woman organizing a boycott?

I know "poor" is false; she was making nearly $45,000 a year while living in Gadsden, Alabama. Did you read that and "relatively ill educated" out of "working class black woman"?

If someone isn't being paid enough, why not just quit? If someone is being paid less because they are a woman, why not organize a boycott? Why not take it to the streets or the Internet and use group power to punish those who offend against your group?

I don't see why the courts should be involved at all.

The courts are involved because Congress enacted anti-discrimination legislation, and federal courts don't have the luxury of tossing out claims created by such such legislation because they don't feel like hearing them or think they don't exist. At the moment, the American public ranks the right not to be discriminated against in a business transaction higher than the right to carry on business transactions in a discriminatory manner (it's basically the reverse priority for non-business transactions). If you think the right to carry on business transactions in a discriminatory manner ought to have a higher priority, that's a perfectly logical position to argue. See if you can get the Republicans to adopt that as part of their election platform.

Oh great. Instead of interpreting the Constitution, we need "empathy". Fantastic.

Who's. Who's.

Indeed, these remarks by Obama seem to link up pretty closely with recent discussions about the fact that none of the current justices have experience as a trial court judge, or about Jeffrey Toobin's characterisation of the Chief Justice as someone with a somewhat sheltered background.

Congress, however, snubbed the Chief Justice. Six-figure salaries, lifetime tenure, and the opportunity to retire at full pay did not look inadequate to the elected officials, who make the same amount as judges and must face ordinary voters. Roberts’s blindness on the issue may owe something to his having inhabited a rarefied corner of Washington for the past three decades.
(...)
In one respect, Roberts’s series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts’s circle of professional peers consisted entirely of other wealthy and accomplished lawyers. In this world, a hundred and sixty-nine thousand dollars a year might well look like an unconscionably low wage.

(The earlier Volokh discussion about that article here focused more on Toobin's characterisation of Roberts' ideological position and of his style as a justice.)

Seems to me that if people are going to say "why didn't she just quit" and so forth, and think that's a relevant argument, then that points up the need for the court to have empathy. If you're going to mind-read, then go ahead and put in a good-faith effort.

Maybe she needed her job to put food on the table. People in that circumstance can't "just quit".

Maybe she feared that she couldn't rock the boat too much or they'd fire her. And maybe that was true.

She asked for more money, did she not? And was turned down. Maybe strung along - "next year we'll see". Meanwhile she needed her damn job.

I understand the need to follow the law as written. At the same time, if this underpayment, and discrimination based on sex, is a matter of record, and the law prohibited her getting satisfaction b/c of the statute of limitations, then the law is an ass. She was still living, the company still existed - what prevented them from cutting her a check for money they clearly owed her? They didn't have to, that's what.

Matthew K,

"You are implicitly claiming that there is an objective right answer in law and right view of objective reality, and that all sensible judges will come to agree. This is false, as I'm sure you realize."

And is also entirely beside the point, as I'm sure you also realize.

The question is not whether there exists an empirically perfect answer accessible to rationally dispassionate analysis (a question that must be as popular among the empaths as whether one likes Obama is among the antis, judging by how much it is answered without being asked), the question is whether a judge should look within to his own values or without to the legislature's and/or those expressed by prior precedent in weighing decisions.

That the judge's personal values inevitably inform her decisions is exactly why it is important to nominate judges who recognize the value of checking such personal partiality. I believe that Obama recognizes this and argues that an empathetic judge (his meaning) is less likely to allow the personal to become political on the bench.

I don't have such confidence in many of his supporters.

Well, there are some benchmarks that you have to make sure that you hit. Obviously, you want somebody who is highly qualified, who knows the law.

This is why I kiss the hem of his garments- he's a goddam genius...

@Glenn W. Bowen: Getting cynical, are we?

@Michelle Dulak Thomson: I sympathise, but I find myself wondering what exactly the point is that you're trying to make.

The question is not whether there exists an empirically perfect answer accessible to rationally dispassionate analysis (a question that must be as popular among the empaths as whether one likes Obama is among the antis, judging by how much it is answered without being asked), the question is whether a judge should look within to his own values or without to the legislature's and/or those expressed by prior precedent in weighing decisions.

I hope I need no evidence to claim that a person's perceptions are inherently biased by their backgrounds, values, and political views (I hope this mostly because I am far to lazy to justify something so basic). given that, it matters a great deal not just WHETHER a person is looking at legislative intent, precedent etc but also WHO that person is. Obama wants someone who is - shockingly - on the political left. He's also hinting that this person will be - wait for it, this is terrifying - inclined to sympathize with the disadvantaged (as opposed to certain current justices who I'd imagine he views as being a little too sympathetic to corporations).

This is why this entire discussion is fundamentally silly. Everyone is biased. The questions remaining are "how much" and "which way." The "which way" question has been answered. the "how much" question boils down to "do you trust Obama?" We might as well take a poll. Far more interesting is what will happen down the road (in a few weeks?) when we get a name.

RPT:
"And the other half translate to "I love Karl", whose vision of utopia was much more in line with those who favor empathy over the rule of law."

The Rove fans on this site tend to oppose Obama. I agree that the Rove fans oppose the rule of law, from Mr. Rove on down.

Nice try RPT, but wrong "Karl". But you knew that already, didn't you?

Wasn't it "empathy" that helped the Supreme Court majority in Bush v. Gore understand and act on the real-world implications of Republicans losing the 2000 presidential election?

These threads do more than anything else possibly could have to reinforce J.S. Mills views on conservatives.

Confirmation bias is a bitch. I feel for you.

You actually think the declaration that anyone whose view is different is a Marxist is actually some sort of valuable insight? Or that Obama wants to "curse the concept of law?"

If anything I fall closer to the cynical camp, Obama's going to appoint someone whose results will be reliably liberal, just as Bush appointed someone whose results would be reliably conservative. I don't for an instant think Bbush cared for a philosophy of law as differentiated from the results it produced, and I don't really think Obama cares either.

By all means I'd encourage any republican senator who thinks a particular nominee would be bad for the country to do whatever he feels necessary to oppose them or bring out the viewpoints he would consider to be bad. I'd probably agree with a number of the criticisms in practice.

But what I don't agree with is this pretending that one side is all about upholding the law, and the other side has nothing more than bad faith efforts to be biased in favor of certain groups or some sort of "judicial tyranny." To the extent it's just shilling for one side I expect it from politicians, but I'd hope commenters here would be better than that.

I wish him well there, and given his past record at HLR, he is likely serious about the precedence he gives to the law and its history.

just caught this one while rereading the thread. Beautiful, I love it.

The paycheck doesn't violate the statute, because the violation is based on intent, and the paycheck has no intent.

So, Goodyear intended to pay her the same as her male colleagues but somehow didn't manage it? Cutting a check is evidence of the intent to pay the payee the amount of money on the check. If the amount of money on the check is less than the amount on the checks of similarly-situated male colleagues, then cutting the check is discrimination.

I remember that discrimination case. Didn't congress explicitly limit the time within which suits could be brought and wasn't she clearly on the wrong side of that limitation?

I absolutely support the statute of limitations. If she had brought suit more than 180 days from her last paycheck, the suit would be properly barred.

Instead, the Justices invented this notion that the fresh injury in cutting each paycheck somehow magically is transported back in time to well before the check was actually cut.

5 Justices still amounts to less than 250 Reps and 61 Senators.

If you're talking about passing laws, that exactly as it should be. The Supremes aren't supposed to pass new laws.

If your definition of "amounts" has anything to do with the 61 senators' wisdom, integrity, or reasoning ability, you'll have to at least show some evidence in support of your statement before I'll give it any consideration.

given his past record at HLR, he is likely serious about the precedence he gives to the law and its history.

just caught this one while rereading the thread. Beautiful, I love it.

Prohibiting unwarranted snark would improve the VC, I think.

The evidence is that as EIC of HLR, Obama devoted considerable effort to the law, by working hard, presiding over a good product, and writing a creditable case comment.

Obama's classmate, G.W. Bush's associate White House counsel Bradford Berenson, said to PBS's Frontline that [After Obama is selected,] he does a very able job as president. Puts out what I think was a very good volume of the Review. Does a great job managing the difficult and complicated interpersonal dynamics on the Review. And manages somehow, in an extremely fractious group, to keep everybody almost happy.

Per the Boston Globe, As editor for two semesters, Obama spent 50 to 60 hours a week holed up in a second-floor office of Gannett House, a 19th century building overlooking Cambridge Common. He reviewed hundreds of articles, on topics ranging from corporate law to racial bias in auto pricing, and presided over long, heated debates in the cluttered first-floor lounge.

Obama's case comment, on the rights of fetuses to sue their mothers, can be found at the taxprof blog.

"Empathy" is clearly a code word (to use the left-wing nomenclature).

one of many,

"just caught this one while rereading the thread. Beautiful, I love it."

Good to hear it. Here's a link that might help you convince others. Highlights:

"But Obama, who this March referred to "identity politics" as "an enormous distraction," was not so easily pinned down. He published a searing attack on affirmative action, written by a former Reagan administration official. And when, in an unusual move, he selected a young woman from a non-Ivy League law school to fill one of the Review’s most prestigious slots, she produced an essay focused as much on individual responsibilities as on liberties, criticizing both conservative judges and feminist scholars.

"I was very surprised and honored to receive the invitation, of course, as I was teaching at Maryland Law School at the time, and the Foreword typically is extended to more established scholars at ‘top’ law schools," Robin West, now a professor and associate dean at Georgetown Law Center, wrote in an e-mail to Politico. While other articles are selected by the Review's editors as a group, the Foreword is solicited by a smaller band led by the Review's president...

If the editor and author — a black man and a woman — were an unconventional team for the Review, however, West's article challenged the then-prevailing wisdom in a different way, taking as its touchstone the work of Czech freedom fighter Vaclav Havel and the anti-Communist revolutions in Eastern Europe that were then still under way. Havel had written that the citizen’s sense of responsibility — not just of individual rights — was essential to political liberty, and West applied that critique to contemporary liberalism to argue that goals such as tolerance and diversity might in fact be "weakened, not strengthened, by taking rights so 'super-seriously' that we come to stop examining our sense of responsibility."

Obama "clearly agreed with me at the time that a shift in constitutional thinking from a rights-based discourse to one that centered [on] responsibility and duties ... would be a good thing," West told Politico. "Partly because of those conversations, I don't find it surprising at all that Sen. Obama's speeches are often marked by calls to spark a sense of responsibility, rather than a sense of grievance.""

Snark, you say? No way.

Can someone explain the difference between "empathy" and bias?

"Can someone explain the difference between "empathy" and bias?"

"Empathy" is the correct kind of bias.

Except it's unwarranted when coming from your side and entirely appropriate from mine.

Although that definition has some appeal, for me, to be warranted snark must immediately provide facts in support, with sufficient specificity to satisfy an objective observer.

with sufficient specificity to satisfy an objective observer.

A what now?

A question from a non-lawyer - What is more important - re-writing legislation from the bench as was done in Ledbetter, or following the law (which would have gone against Ledbetter), and in the decision note that the law is poorly written, does not protect people and really needs to be rewritten, or however judges do that piece of magic?

Oren writes:

That's an unflattering assessment of her argument. She argued that herPay(i) < hisPay(i) even though SimSit(her,him) is true.


Wrong. Ledbetter did not claim that Goodyear acted with discriminatory intent in the charging period by issuing the checks, nor by denying her a raise in 1998. She argued that the discriminatory behavior occurred long before but still affected her during the 180-day charging period.

@Davod: Just check here: 103 Harv. L. Rev. 823.

(It's actualy a pretty interesting problem.)

She argued that the discriminatory behavior occurred long before but still affected her during the 180-day charging period.

Continuing to pay her a discriminatory paycheck constitutes continuing discrimination.

Oren wonders if no one sees it his way.

I do.

"Can someone explain the difference between 'empathy' and bias?"

Well, let's see. Suppose that a 13-yr-old girl has to strip-search b/c it's been reported that she has hidden an ibuprofen tablet in her underwear. And suppose that a male justice reasons that that should not have bothered her, because similar things didn't bother him. Is that empathy, or bias?