Empathy vs. Sympathy

As the Senate debate continues on Elena Kagan’s confirmation, Republicans have used this opportunity to blast Obama for previously stating that judges should have the empathy to understand the lives of ordinary Americans. Republicans argue that possessing “empathy” is synonymous with “liberal judicial activism,” and have attempted to use this standard to oppose Kagan’s nomination.

Yesterday, Sen. Kaufman of Delaware reminded his colleagues of the actual meaning of “empathy”: 

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

Republicans launched their assault on empathy last year during Sonia Sotomayor’s confirmation hearings. What was lost in the hubbub is what the word actually means. Sympathy leads to the kind of bleeding-heart reactionary reasoning that Republicans claim to be afraid of in nominees like Sotomayor and Kagan. Empathy is the quality that enables judges to understand the reasons laws are made, and the real-life implications they have on the lives of Americans. Republicans have access to the same dictionaries as the rest of us—but if they stopped twisting Obama’s words, they would lose one of their favorite empty arguments.


Proposition 8: Just the Facts

Yesterday afternoon, federal Judge Vaughn Walker ruled that Proposition 8 violated the United States Constitution. This is an important milestone.

One reason it is so important is the factual record that was compiled for the case. Judge Walker developed an extremely detailed factual record upon which to base his legal conclusions - a record of the significant harm that marriage inequality causes, of the history of discrimination faced by lesbian and gay people, and of the animus behind Prop 8. In fact, more than 50 pages of the opinion are devoted to his findings of fact.

For instance, there's Fact 55: "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."

Or Fact 56: "The children of same-sex couples benefit when their parents can marry."

Or Fact 66: "Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs."

Or Fact 74: "Gays and lesbians have been victims of a long history of discrimination."

Or Fact 76: "Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes."

This factual record is very important, because when Prop 8 supporters appeal the decision, the appellate court will have to accept these facts. Appellate federal courts are generally limited to deciding issues of law, not of fact. Well-supported facts like these will make it much harder for an appellate court to reverse the decision.

More broadly, this case shows us that when the forces of the Right face an independent judge, the arguments that serve them so well on Fox News wither before genuine scrutiny. It also shows the beauty of the American constitutional system, where our independent judiciary protects Equal Justice Under the Law.


A Win for Fact Over Prejudice

California federal judge Vaughn Walker’s opinion yesterday in the case of Perry v. Schwarzenegger—in which he struck down the state’s ban on gay marriage—was a strong defense of the values embodied in the Constitution. But it was also something more. In his 136-page opinion, Judge Walker carefully dismantled dozens of the myths that opponents of marriage equality have attempted to use as legitimate legal arguments against allowing gay people to marry. And unlike the defenders of marriage discrimination, Walker didn’t make up evidence out of whole cloth—in his analysis, he relies on expert testimony, statistics, and the lessons of history. Slate’s Dahlia Lithwick writes:

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.

The stunning thing is that the feeble arguments that Prop 8 defenders were able to muster against marriage equality were in fact the best they could come up with. Kyle at Right Wing Watch writes that there was some in-fighting among the Right Wing over who would get to defend Proposition 8 in court. The fervently anti-gay Liberty Council tried to wrest the defense away from the equally anti-gay but slightly more street-smart Alliance Defense Fund, because the ADF wanted to base its case partially on factual evidence rather than purely on vitriol. The ADF won out, but they were left with a small problem: there was no factual evidence to be found.


Federal Judge Rules Gay Marriage Ban Unconstitutional

A federal judge in California today ruled Proposition 8, the state’s ban on gay marriage, unconstitutional. Judge Vaughn Walker’s opinion declares the marriage ban a violation of the Constitution’s equal protection and due process clauses, and debunks the arguments of marriage equality opponents on issues ranging from the welfare of children raised by gay and lesbian parents (they do just fine) to the effect of same-sex marriage on other marriages (none).

To be honest, we’re still wading through the opinion, and will have more analysis of the legal arguments tomorrow. But for now, let’s appreciate the real effect this decision will have on people like Jeff Zarillo and Paul Katami, two of the plaintiffs in the case, who now have a chance at regaining the right to marry. Here are the video that the American Foundation for Equal Rights put together about Jeff and Paul:

Paul and Jeff from American Foundation for Equal Ri on Vimeo.


McCain Recites the Harvard Argument

Sen. John McCain just used his time on the Senate floor to speak extensively about Elena Kagan’s actions involving military recruitment when she was dean of Harvard. A dean who reveres the military, McCain said, would not put up with potential recruits “wandering the halls of Harvard Law School hoping that someone will stop and talk to them.”

As Sen. McCain well knows, Dean Kagan did not leave aspiring members of the military to “wander the halls of Harvard Law School.” Instead, she made every effort to help the student veterans’ association recruit students—an effort so successful that military recruitment went up while Kagan was dean.

McCain also quoted from the testimony of the right-wing activists the GOP brought in to bash Kagan’s record on military recruitment--while conveniently ignoring the far more reliable testimony of several members of the military who were actually at Harvard while Kagan was dean, who assured Senators that they received ample opportunities and respect from their school.

I recommend reading People For president Michael Keegan’s piece in the Huffington Post on what the GOP’s fixation on these empty military recruitment charges is really about.


GOP Obstructionists turn on 9/11 Victims

This video of Representative Anthony Weiner (D-NY) losing his temper on the House floor has been making the rounds in the blogosphere recently. What I find most compelling about the story, though, isn’t that Weiner raised his voice; it’s that he raised it against perhaps the most troubling example of GOP obstructionism yet.

Last week, the House tried to pass a bill to provide health care for the first responders who risked their lives to save their fellow Americans during the 9/11 World Trade Center attacks. Many of these heroes face lingering health problems in the aftermath of their exposure to toxic ash and other debris.

But, instead of actually voting on the bill, House Republicans blocked it, citing both procedural and ideological issues. Here’s how Representative Weiner describes the debate:

It was frustrating to hear Republicans say these people didn’t deserve more help because, as one put it, “people get killed all the time.” Others called it another big entitlement program. Some said it was a giveaway to New York, or complained that the bill would have been paid for by closing a tax loophole. We responded to each of these arguments over the summer in the hours of hearings and markups of the bill.

There were also Republican objections that we put the bill on the “suspension calendar,” which is generally used for noncontroversial legislation, as this measure should have been. This move meant that the bill required a two-thirds favorable vote for approval rather than a simple majority, but it also kept the bill from getting bogged down in debate and stuck with poison-pill amendments.

...Instead of engaging in a real debate about how to address the challenges we face, Republicans have turned to obstruction, no matter the issue, and then cry foul after the fact. They claim to want an open legislative process with more consultation and debate, but the truth is they simply don’t want to pass anything.


Senate Republicans: Just Say No to Participating in the Legislative Process

A well-researched, provocative piece in The New Yorker this week explores the increasingly dysfunctional nature of the US Senate. In particular, the article draws attention to the unprecedented obstructionism of the current Republican minority:

Under [Minority Leader Mitch] McConnell, Republicans have consistently consumed as much of the Senate’s calendar as possible with legislative maneuvering. The strategy is not to extend deliberation of the Senate’s agenda but to prevent it. Tom Harkin [D-IA], who first proposed reform of the filibuster in 1995, called his Republican colleagues “nihilists,” who want to create chaos because it serves their ideology. “If there’s chaos, things will tend toward simple solutions,” Harkin said. “In chaos people don’t listen to reason.” McConnell did not respond to requests for an interview, but he has often argued that the Republican strategy reflects the views of a majority of Americans. In March, he told the Times, “To the extent that they”—the Democrats—“want to do things that we think are in the political center and would be helpful to the country, we’ll be helpful. To the extent they are trying to turn us into a Western European country, we are not going to be helpful.”

…The deepest source of [the Senate’s] problems is not rules and precedents but, rather, its human beings, who have created a culture where Tocqueville’s “lofty thoughts” and “generous impulses” have no place.

If Republican Senators were true statesmen, they would know that it is always “helpful” for the minority party to make an honest attempt to work through their differences with their opponents. Instead, Republicans have adopted a “just say no” legislative philosophy, making it impossible for the Senate to be the dignified and idea-oriented institution envisioned by the Founders.


Hatch: Defense of Thurgood Marshall is “Offensive”

Watching the Senate debate on Elena Kagan’s nomination yesterday afternoon, I wasn’t sure I heard correctly when Sen. Orrin Hatch called the backlash against the GOP’s anti-Thurgood Marshall campaign “offensive.” I heard correctly. Here’s the transcript:

While Ms. Kagan has not herself been a judge, she has singled out for particular praise judges who share this activist judicial philosophy. In a tribute she wrote for her mentor, Justice Thurgood Marshall, for example, she described his belief that the Supreme Court today has a mission to “safeguard the interests of people who had no other champion.” Ms. Kagan did more than simply describe Justice Marshall’s judicial philosophy but wrote: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.”

Justice Marshall was a pioneering leader in the civil rights movement. He blazed trails, he empowered generations, he led crusades. But he was also an activist Supreme Court Justice. He proudly took the activist side in the judicial philosophy debate. Some on the other side have suggested that honestly identifying Justice Marshall’s judicial philosophy for what it is somehow disparages Justice Marshall himself. I assume that this ridiculous and offensive notion is their way of changing the subject because they cannot defend an activist, politicized role for judges.

Among the members of the GOP who continue to cling to this line of attack, variations of the “I’m not disparaging Justice Marshall, I just don’t like his judicial philosophy” argument are a mainstay. The problem is, Justice Marshall’s work as a Supreme Court Justice—or his “judicial philosophy”—is a key part of his legacy. He’s a hero for his years of work rooting out segregation as a lawyer for the NAACP; he’s also a hero for his adherence, as a Supreme Court justice, to the Constitution’s promise of “protecting individual freedoms and human rights.”

When Hatch attacks Marshall’s work as a justice, he attacks his entire legacy. I won’t call that “offensive”—but I can’t say it’s wise, either.


The Far-Right Agenda Rolls On In the Courts

Yesterday, U.S. District Judge Henry E. Hudson refused to dismiss a lawsuit, filed by Virginia Attorney General Ken Cuccinelli, challenging the constitutionality of the recently passed healthcare reform bill. This procedural ruling will likely lead to years of litigation surrounding the law, which many constitutional law experts believe is well in line with the parameters of the Commerce Clause and Congressional authority.

But much as we have seen, this is just another example of right-wing judges pursuing an ideological agenda to harm progressive goals. Though Judge Hudson’s ruling (see career background here) did not explicitly discuss the merits of the case, it’s pretty clear which side he would rule on, according to Steven Schwinn at the Constitutional Law Prof Blog:

[H]e clearly framed the issues in terms of Virginia's theory of the case--that the mandate is a regulation of a decision not to participate in the interstate economy--and commented throughout on the "complex constitutional issues”. . . The federal government will likely have a tough time getting Judge Hudson to move away from Virginia's view of the case.

This is yet another reason why conservatives are so intently set on packing the courts with right-wing extremists. Time will tell if their strategy works with regards to ideological courts bending the law in order to strike down healthcare reform.


A true non-partisan

During her confirmation hearing, Elena Kagan promised not to go into any case rooting for one “team” or the other.

But as Senator Dorgan pointed out today, it sometimes seems that the current court is inappropriately divided into “teams” – and the team that is on the side of the nation’s most powerful interests and against everyday Americans is winning.

During his confirmation, Justice Roberts swore that he would be an “impartial umpire” as Chief Justice of the U.S. Supreme Court – but instead, he’s presided over the most ideologically conservative court in decades, one that bends the law to favor the powerful. We need a truly impartial, qualified Justice on the Supreme Court to make sure that the branch of our federal government that is supposed to be apolitical doesn’t continue to turn a blind eye to corporate lawbreaking. That is just the kind of nominee Elena Kagan is.


A Justice Who Listens to Ordinary Americans

Senator Mikulski, herself a groundbreaking pioneer for women’s place in politics, re-affirmed Elena Kagan’s qualifications today. The current Court, noted Senator Mikulski, is increasingly out of touch with the majority of the American people. Elena Kagan, meanwhile, has spent her career demonstrating a concern for fairness and equality and the impact of the law on real people.

When the majority of our Supreme Court Justices are so frequently on the side of big corporations regardless of what the law says, we need someone like Kagan who will actually listen to “the little guy or gal.”


Cornyn Twists Kagan Remark, Comes Out Against “Judgment”

Sen. John Cornyn, in his boilerplate remarks about the “judicial activism” conservatives like to associate with Elena Kagan, attempted to throw the Solicitor General’s own words back at her. Kagan, Cornyn insisted, would not rely on the “Constitution ratified by the American people and the laws passed by Congress,” but rather that she would solve tensions “between her Constitutional values” using “her prudence and judgment.” (He demonstrated his contempt for “prudence” and “judgment” by spitting the words out in disgust).

This is what Kagan actually said, in a written response to questions from Cornyn:

Question: In Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 932 (1995), you wrote that “many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

a. Please explain in greater detail what you meant in this statement.

Response: I was referring to constitutional values, by which I mean the fundamental principles articulated and embodied in our Constitution. In some cases, constitutional values point in different directions, and judges must exercise prudence and judgment in resolving the tension between them. In doing so, judges must always look to legal sources—the text, structure, and history of the Constitution, as well as the Supreme Court’s precedents—not to their own personal values, political beliefs, or policy views.

Kagan wasn’t talking about tension in her own values—she was talking about the tension inherent in the values of the Constitution. For more on that point, Cornyn might want to read former Justice David Souter’s excellent explanation of this principle, or even just sit down and read a few recent Supreme Court cases, which typically get to the Court precisely because they embody hard-to-resolve tensions between constitutional values.

He might also want to re-watch Kagan’s debunking of the John Roberts doctrine of the judge-as-umpire, in which she patiently explains that “judging requires judgment':


Senator Cornyn Still Thinks “Judicial Activism” is a Liberal Phenomenon

Senator Cornyn’s sound bite today: “A judge who presumes to be a lawmaker becomes a lawbreaker.” That is, a Justice who decides based on a desired policy outcome rather than a correct interpretation of the Constitution is a “judicial activist” and has no right to serve on the Supreme Court.

It’s always amazing to hear an ultra conservative like Senator Cornyn complain about judges legislating from the bench. Does he think that the conservative block of the Roberts Court, which overturned a century of settled law in the Citizens United case to achieve their desired pro-corporate policy result, is made up of lawbreakers?

Senator Cornyn also emphasized that, if we disagree with a law or a Supreme Court decision, we have the right to work towards a constitutional amendment. We couldn’t agree with him more. That’s why we’re fighting for a constitutional amendment to correct Citizens United and once again limit corporate money in our elections.


Franken: Roberts Court is Activist

Senator Al Franken was right on about the Roberts Court this afternoon. For years, he said, conservatives have complained that progressives engage in “judicial activism” from the highest court. Most conservatives on the judiciary committee seemed to agree with Elena Kagan’s definition of a judicial activist as a Justice who doesn’t defer to the elected legislative branch, doesn’t respect precedent, and doesn’t decide as narrowly as possible.

Kagan has demonstrated that she would not be an activist or ideological judge. But, as Senator Franken put it, there is no doubt that the Roberts court is an activist court. Let’s hope that if she is confirmed, the future Justice Kagan can bring real humility and a reasonable interpretation of the Constitution back to the highest court.


Kyl's Hypocrisy on the Kagan Nomination

Senator Jon Kyl just finished speaking against Elena Kagan's confirmation to the Supreme Court, but he seemed a bit confused. According to Kyl, he will vote against her because she believes that the role of the court is to solve society's problems. Kyl said that's the role of the legislature, not the courts.

Yet when our elected representatives HAVE acted to solve society's problems - to protect our elections from being bought by corporations, to protect people from defective medical devices, to protect workers from unfair discrimination by powerful corporations, to protect our environment from polluting corporations - the Roberts Court has gone out of its way to dismantle these protections.

How does Senator Kyl square his support for the arch-conservatives on the Court with his claim that the elected branches should be allowed to solve society's problems?