Strengthening Constitutional Self-Government

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Obama's "Empathy" Standard

Today, the Senate Judiciary Committee will vote on whether to confirm Judge Robert Chatigny to the Second Circuit of Appeals.  As I explain here, Chatigny provides the perfect example of why Obama's "empathy" standard for judges is extremely dangerous and improper.  In an infamous 2005 case, Chatigny, a federal district court judge in Connecticut, fully displayed the "depth and breadth" of his empathy.  Ignoring his judicial duty to be impartial, he attempted, by asserting bizarre, unprecedented legal arguments and even bullying attorneys, to remove a serial rapist and murderer, Michael Ross, from death row.  Why?  Because Chatigny thought that Ross's "sexual sadism" was "clearly a mitigating factor."  In fact, Chatigny railed, Ross was the "least culpable of anyone on death row" because of his sadistic tendencies.

Obama stated that he would seek judges who empathize with certain groups: the poor and the disabled, for example.  He did not mention sadists. 

Yet there is nothing in his theory that prevents judicial favoritism for this particular group.  In fact, if we take seriously the words of Obama's SCOTUS nominee, Elena Kagan, who stated that judges should have empathy for the "despised and disadvantaged," it would seem that empathy for "despised" murderers would fit neatly within Obama's theory and Kagan's as well.

Bottom line: once we declare that a judge should be guided by the whims of his empathy, we cannot demand that he direct his empathy to the party that we happen to think most deserving of it.  Chatigny's empathy for the "Roadside Strangler" should serve as a resounding reminder of the need for judges to look not into their "hearts" for guidance in a case, but to the law. 

Categories > Courts

Discussions - 13 Comments

There you go, trying to enforce reasoned thinking on them.

It won't work.

I used to think they simply didn't realize they were employing double standards. But I think differently now.

I realize now they know full well that a double standard is being employed. Pointing it out means little to them. Their sense of moral superiority provides the shield.

They bow to the altar they themselves have erected.

And they themselves sit on that altar.

It would seem that empathy for "despised" murderers would fit neatly within Obama's theory and Kagan's as well.

As it does ... witness Mumia Abu-Jamal.

Oh wait ... he's not despised.

He's lionized.

Odd how that works.

That's a lot of legalese to follow! I agree with Don in AZ. The liberals cum progressives do not follow the principle of equal justice under law. Their law is designed to advance the interests of their class, using various "disadvantaged" groups as surrogates, for which they are the vanguard and dictatorship. There is no hypocrisy, just abandonment of the principles of the American founding.

John Lewis, for pity's sake, next time give us a summary and a reference. Who can stand reading all of that?

However, to the post and other comments, yes, and how awful when championing the victim amounts to valuing him above who he victimized?

However, Richard Reeb, do we really know what "the interests class" are? I simply cannot see how sympathy for the devil, or whoever is standing in for him, is in anyone's civic or political interest.

What was the point of that entire post, John? Seriously?

As for Kate's question about what the interests of the liberal ruling class are ... I think it really is as simple as power and control. Honestly. I think that's at the very root of it.

But why? It's more than just having control of the purse strings or pushing some agenda. So what drives them to be so relentless in their pursuit of acquiring and maintaining power?

My belief -- I could be wrong -- is that this is part of a broader "works salvation" effort. So much of their energy focuses on questions of "morality" and "justice" and "compassion" ... and those are all words without meaning in a universe formed randomly; without guidance or meaning.

They know this. Doubt lingers as to the "meaning of life." So they hedge their bets through their efforts designed to be "moral" and "just" and "compassionate."

There's nothing wrong with being "moral," "just" and "compassionate." But any thinking person has to one day realize that those concept require a final arbiter of their meaning. And that is what is being studiously avoided by their persistent efforts in the realm of politics, power and control.

John's post quite nicely shows how Ms. O'Malley's reliance on secondary (or perhaps even tertiary) sources for her opinion validates the emphasis that we pointed-head and elitist academics place on the necessity of engaging with primary sources.

agatha, I am delighted with primary sources, which I why I also requested a reference with a John Lewis' summary, as the latter would be more interesting as a blog comment. The usual thing is a link.

Don in AZ, yes, maybe, but who would not like to live in a just, moral and compassionate society? Yes, depending on what we mean by each of those terms, (what morality? for ex.: mine does not include gay marriage) Yet, to say we would live in society without them is to say we prefer would live in a rough place.

Are you suggesting the since they are uncertain about life after death and especially Heaven, they are looking for Heaven on Earth?

... but who would not like to live in a just, moral and compassionate society?

Kate, given your other posts I get the strong sense you're anything but a progressive. However, I must say that's the kind of response I often see from progressives. Their argument goes like this:

Progressive: "My policies will create a kind, just, compassionate and moral society."

Me: "I do not agree with the means you employ to try to achieve those stated goals."

Progressive: "You must not want a kind, just, compassionate and moral society. Because if you did, you would agree with my desire to create a kind, just and compassionate moral society."

(There's probably a formal name for the logical fallacy employed there.)

What I am saying is this -- in their rational minds they have abandoned the idea of God's existence. That does not mean they are atheist; in fact, they might well use the language and perform the rituals of religion.

But they would stop well short of agreeing that things like kindness, justice, compassion and morality have an ultimate reality grounded in an existent God. That would create a potential responsibility to that God. And it removes the freedom to define themselves the terms and conditions of words like "kindness," "compassion," "justice" and "morality."

But somewhere deep in their hearts there is a sense there is a responsibility ... an accountability ... to something. And in the kingdom they have created for themselves, they play the role of participants and rule makers, reserving the right to selectively modify the accounting based on what satisfies their wishes and desires at that time.

Environmentalists are prime examples of this. Environmentalism has clearly become a religion of sorts, with defined rituals and a vague "being" -- nature, earth, "the environment" -- being the beneficiary and environmentalists gaining credit for their activities.

I am not an environmentalist. Does that mean I am in favor of polluting? Of course not. Am I in favor of excessive consumption? No. In fact, in many ways my lifestyle involves less consumption than "environmentalists" I know.

I am intentionally avoiding the issue of an "afterlife" and the concept of "Heaven" because it invites arguments that take unproductive paths. My main point is this: progressives have a sense of accountability and responsibility to something beyond themselves. They can't define it, but they sense it.

In response, they craft a system of legalism around conduct and belief. Eventually their objective becomes simply the appearance of compliance to the rules they themselves create. It is, in a very strong way, a contemporary version of "the Scribes and the Pharisees."

That's my sense of things.

I agree that looking to original sources is important, which is why I did so before writing about this case. In the above blog post, you will notice a link to an op-ed that I published earlier that day, in which I addressed the panel opinion that Mr. Lewis posted in his comment.

The larger point is not necessarily whether Chatigny's actions were sanctionable in a judicial proceeding, but whether he showed sufficient bias that we should be concerned about his ability to put personal predilections aside in future cases. Regardless of the outcome of the panel, it is clear that he did show bias, and his actions raise serious questions about his judicial temperament. These issues should be thoroughly addressed when considering him for a huge promotion.

Don, it is a tautology; you are begging the question, or rather your Progressive is. Oh, and they do!

Yes, I don't think I am a Progressive either, because I am not at all certain that change, which is inevitable, is the same as progress, which is connected to improvement and which I do not think is a sure thing in the inevitable change we experience in life.

You know there are Christian Progressives and the way they seem to see human progress is as men prodded by the finger of God into being moral, compassionate and just. I think it is a peculiar way of figuring out free will as motivated by the sovereign power of God. God wants us to be good and if we can just come up with a human system to facilitate that, men will be good. God intends us to be good and therefore, inevitably, we will be.

I cannot look at mankind and see that as anything but wishful thinking.

As to progressives feeling "a sense of accountability and responsibility to something beyond themselves." I think you are correct, but that they are usually more comfortable defining that as "humanity" or "humankind". As if the collective of all people were an entity and we all owe it to ourselves (ourself?) to be kind, just, compassionate, moral, etc.. The problem is that each having his own opinion about that sort of thing, and without our Final Arbiter of what is good, we end up with all of the chaos of an uncentered universe.

Maybe we do owe those nice things to one another, but we owe so much more beyond the ordinarily human and know that well when we know that God is. In addition, when we do consider what God is, we are much more aware of our incapacity for perfection.

Anyway, I like what you said and don't really disagree, but would only push the conversation.

Kate, I'm not sure I have much more to add to this. I've tried several times, but it seems I end up repeating myself or, worse, I allow a judgmental tone to creep into my language.

I look around this world of late and I honestly don't know that I can make sense of it any more. It seems that whatever little tethering to sensibility that might have existed has been abandoned.

We fall headlong into the abyss of unprincipled beliefs based on desires -- good and bad.

Have you watched MTV lately? Astonishing. Absolutely astonishing.

The more I reflect on today's world, the more I see the deep, deep wisdom contained in the Bible.

I should add -- judgmental tone not towards you, but towards liberals and progressives. That tendency -- judgmentalism -- is a real weakness of mine, to my shame.

Don, I avoid TV. I know I miss the good stuff, too. Yet, to me, it is like a door into a world I would rather not be part of and to it have right in my house ... Well, I don't. I do see TV elsewhere and my daughter has taken to getting whole seasons of TV shows on video from the library. Hence I even know about something like "Glee" or "Community"

Most TV doesn't reflect the world I live in or most of the people I know. If it claimed to be fanciful maybe I would forgive it, but claims to be like reality and I cannot see that.

I suppose we are passing judgment, but if we have no judgment -- isn't that a problem with the world? From the original post: there is a judge who was reluctant to pass judgment. Such a judge does society no good.

However we feel about passing judgment, and we have the private right to be reluctant, those people who work as judges are expected to do the hard things. That includes having good judgment and making the hard calls, regardless of personal feeling, based on law.

However, if the law loses compassion for the victims of violence, we are all in big trouble.

Deborah O'Malley, it was a good post. It got us talking and thinking, although maybe not along the lines you wanted us to. I am not a lawyer, but I think I got your meaning. You can pass judgment on that. It was your post.

John Lewis's long quotation was deleted as it was a copyright violation. Just use a link next time...

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