Monday, May 11, 2009

DE on NPR re SCOTUS Nom

Here.

posted by Armen Adzhemyan at 5:18 PM

6 Comments:

Blogger Tom Fletcher said...

I didn't hear much that's new or different. The only thing that jumped out at me was her thought that the administration might look to attorneys in private practice or general counsel's offices.

I'm not sure Dean Edley's answer regarding "empathy" will do much to allay concerns that in practice it means picking winners. He couched it in the notion that Supreme Court cases aren't "easy" and necessarily involve policy judgments -- and that those policy judgments should take into account the "real world."

This is fine of course. But difficult policy questions could also turn on notions like institutional competence, reliance interests, and predictability. We can latch onto "empathy" as out tiebreaker for cases like Ledbetter, but doing so comes at the cost of these other values.

5/11/2009 5:36 PM  
Anonymous Anonymous said...

suppose a justice thinks "i realize that the plaintiff has suffered but it would cause suffering to large classes of people if i were to bend the law to let this plaintiff win." does that count as empathy? if not, why not?

5/11/2009 6:11 PM  
Anonymous Anonymous said...

6:11,

I bet that's how Scalia thinks. The large classes of people that he is concerned about are all business though.

5/11/2009 6:22 PM  
Anonymous Anonymous said...

but suppose that the justice is thinking about human beings when she/he thinks that. is that "empathy"?

5/11/2009 7:36 PM  
Anonymous Anonymous said...

Tom,

"But difficult policy questions could also turn on notions like institutional competence, reliance interests, and predictability. We can latch onto "empathy" as out tiebreaker for cases like Ledbetter, but doing so comes at the cost of these other values."

First, it's not zero sum. Having "empathy" does not mean you sacrifice institutional competence, reliance interests, and predictability. It might further them, and reinforce them. That is, institutional competence strengthens when people know that the judiciary truly does "empathize" and seek to understand their positions.

Second, ANY policy decision sacrifices those values. Not just decisions made with an empathetic lens.

Third, even if it *does* sacrifice those values, then maybe those are values that need to be re-set, or re-examined. Maybe at this point those values benefit those with privilege or those who have benefitted from the law, and assumes that our law is neutral at this point.

5/11/2009 10:10 PM  
Anonymous Anonymous said...

Speaking of Boalt faculty in the media, Yoo has apparently just landed himself a monthly column for the Philly Inquirer:

http://www.philly.com/philly/blogs/attytood/Inquirer_defends_the_indefensible_Its_contract_with_torture_architect_John_Yoo.html

5/12/2009 7:01 AM  

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