Obama's "empathy" standard for Supreme Court Justices

President Obama has stated that he will select judges, including Supreme Court Justices, who have what he considers the proper "empathy." In one statement, he said:

"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 -- and that's the criteria by which I'll be selecting my judges."

But is empathy a proper, or even useful, quality in a Supreme Court Justice? My answer is no. There are numerous problems with this "standard." First, with whom should the Justice empathize? Stuart Taylor Jr. notes in his excellent article in the National Journal that Obama's comments "stress special empathy for 'the powerless,' for single mothers, for employees as against employers, for criminal defendants, and the like. How does that square with the oath to do equal justice to the poor and to the rich?"

Obviously, Obama's desire that Justices demonstrate empathy for specific groups does not square with the oath to do equal justice to all without regard to their wealth or status.

Moreover, as Taylor notes: "In addition, law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests -- of empathy, if you will -- that the democratic process has struck between the powerless, the powerful and other groups."

Second, Supreme Court cases frequently do not lend themselves to Obama's pat dichotomy between different groups, e.g. the rich and the poor, the powerful and the powerless.

Consider, for example, the DC gun control case decided last term, Heller v. District of Columbia. This case, decided by a 5-4 vote, was arguably the most contentious case of the term. Justice Breyer stated during oral argument that 80 briefs had been filed in the case. In other words, this was precisely the type of case where Obama claims that empathy is key.

But with whom should his hypothetical justice have empathized? Mr. Heller, a law-abiding citizen, who wanted to keep a handgun in his home in the crime-ridden District of Columbia? The District of Columbia, which possesses far more resources and power than Mr. Heller ("you can't fight city hall")? The burglar who might get shot if he breaks into the home of a gun owner? In this and many close cases decided by the Supreme Court, Obama's empathy criterion is simply irrelevant.

The Supreme Court decides many more difficult cases in Obama seems to realize. And in a great many of them, empathy is irrelevant, unless Obama simply wants Justices who will place their thumbs on one side of the scales of justice.

I'll take an impartial, conscientious Justice any day.

President Obama and the Supreme Court

President Obama has consistently made two assertions about the nature of cases decided by the United States Supreme Court. The first is that, in 95% of the cases that come before the Court, the correct result is clear-cut, "slam dunks." The second is that, in the other 5% of the cases, those that involve difficult issues, the most important quality for a Justice is "empathy." The first assertion is grossly inaccurate. The second is incomprehensible. This post discusses the first assertion. A subsequent post will discuss the second.

The Supreme Court deals with cases involving an incredible range of federal issues: tax, patent, environmental, securities law, antitrust, etc. In addition, of course, the Court deals with Constitutional issues. If President Obama were correct that 95% of these cases are slam dunks, you would expect that 95% of its decisions would be unanimous or near-unanimous (8-1).


Even a casual observer of the Supreme Court,however, knows that unanimous opinions from the Court are almost as rare as hen's teeth. Alhough I have not crunched the numbers, nowhere near 95% of the Supreme Court's decisions are unanimous or near-unanimous. In fact I would wager that the percentage of unanimous or near-unanimous opinions handed down by the Court is much closer to 5% than 95%.

The Court's docket consists of review of decisions by Federal Courts of Appeals, and State Supreme Court rulings that involve federal constitutional issues. Often, the Court takes a case to resolve a conflict among the Courts of Appeals. If these cases were slam dunks, the Courts of Appeals would not have disagreed as to the correct result in the first place.

Cases raising constitutional issues necessarily involve the construction of general provisions,e.g. "unreasonable," "cruel and unusual," etc. Understandably, the Justices frequently disagree as to the correct interpretation of these general terms. On top of that, the Justices who espouse the doctrine of the "living Constitution" assert that modern societal values, both here and abroad, may properly be taken into account in construing be Constitution. Since the Justices do not even agree on the proper rule of construction, disagreements (in the form of both concurrences and dissents) are frequent.

In short, President Obama appears to have a blinkered view of the work done by the Supreme Court. Since he will shortly be nominating a new Justice to the Court, this lack of basic understanding is worrisome.

New economic and tax myths

So much economic nonsense has been generated by the new administration that it was hard to know where to start discussing it. As usual, Robert J. Samuelson provides an excellent starting point. His current article in the Washington Post deals with the taxes that American corporations pay on overseas operations. The truth is that American corporations are taxed more heavily on their foreign operations than almost all of their foreign competitors. Most countries do not tax the profits of their corporations' foreign operations beyond the taxes levied by the host countries. The United States does, though it does provide a credit for the foreign taxes paid. Moreover, there is no empirical vidence that US corporations' foreign operations "export" American jobs overseas. In fact, they are more likely to create additional support jobs here.

As usual, yesterday's tax incentive is today's "loophole."

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