I'm not sure which genius thought it was a good idea to launch a war on empathy, but it was clearly a dumb mistake.

I don't think it was.

The people hearing the empathy taunts don't know, and virtually no one in the mainstream media's going to tell 'em, that Alito, Bush pere, O'Connor and Thomas have talked about this concept. They don't get far enough into the issue to understand what's meant by empathy in the context of jurisprudence. And a few posts on blogs aren't going to resolve that knowledge gap.

All these folks know, and it's getting reinforced on all sides, is that "empathy" sounds like touchy-feely liberal hearts bleeding for criminals and giving minorities and women what properly belongs to themselves.

So, yeah, taking shots at the ability to take yourself out of your own shoes is not a bad strategy for the party of fake badasses. It's just not going to be enough this time. Because the GOP just can't stop itself from race- and gender-baiting, and people do have a problem with that.

Just a reminder, that most of the Right consider talking points a weapon for achieving goals and damaging opponents. They don't expect most people (and *especially* their base) to fact-check or compare, or care about logical inconsistency etc. (How many people will see these quotes from Thomas, Alito, etc? If there was a liberal Drudge it would help, but there's no equivalent. Hopefully Maddow and Olberman are/will pounding on this.) Finally, the shame of bad-faith reasoning expected of an "intellectual" is not relevant to dextrogandists any more than the moral inhibitions against making maximum profits.

http://tyrannogenius.blogspot.com
(I guess the "URL" inputer still doesn't work, anymore than the RPI buttons? ; - )

'But for the grace of God there go I.'

For Republicans, that's code for "I'm entitled."

I thought "empathy" was a code-word for forced abortions.

There's another case that Sotomayor decided, written up by Emily Bazelon, that sheds some light on the judge and "empathy" http://www.slate.com/id/2219251/.

The basic facts of the case are that a guy was driving a truck on the highway when it broke down, but he couldn't get it all the way off the road. He didn't have enough flares to be sure that nobody would kill themselves driving into it, so he ran to find a pay phone. (It was a long time ago.) When he found a phone, there was a guy sitting in his car making a call, with the cord through the window. The truck driver says there's an emergency, I need the phone. The guy in the car tells him to find another phone. Truck driver hangs it up on him -- and all hell breaks loose, including thrown phone and the appearance of a gun: the guy in the car is an off-duty cop. Another off-duty cop arrives, and they arrest the truck driver, who winds up losing his job, lots of legal fees, and custody of his daughter.

Now -- most folks would emphathize with the truck driver, not with the asshole who wouldn't cut his call short because of an emergency. (The off duty cop says he never heard that. The first trial didn't believe him.) The original case found for the truck driver, and awarded him money for false arrest.

But Sotomayor found the case turned on a narrow point of law, namely whether an off duty cop can arrest a guy who throws a phone at him. She persuaded her two Republican-appointed colleagues to vote her way; took her two years.

LOL -- 'course, Republican Senators can keep up the whole 'she's a stupid affirmative action racist bitch' line of reasoning: How's that working out?

Prediction: she gets confirmed 76-24, with 16 GOP votes.

We on the Left heard Clarence Thomas say he had empathy but were unreassured because we didn't believe him. The Right hears Sotomayor talk about empathy and is outraged because they believe her.

not only do i agree with shortstop and Neil B, I will take it one step farther and note that it likely wouldn't matter if everyone knew about the hypocrisy. this debate is not about the things actually being asserted. particularly for the MSM, this is about determining a person's willingness to play their prescribed role in our grand political/cultural theater.

you see, we know Thomas and Alito are lying to us when they suggest they have empathy, but we (not "we" literally - most of us here are actually the exceptions to the Establishment "We") forgive the lie to reward the fact that they have honored The Meme.

The Meme is that conservatives are callous, belligerent and dangerous (or, in their positive spin, macho and tough). When nominated, they show proper respect for both The Meme and The Broderian Imperative by saying what would be required to move them from The Meme to the middle. Doesn't matter if it is true -- the effort itself shows respect for establishment expectations, which is all the Establishment cares about. You elevate them by kissing their asses, not by telling them truths.

On the other side, The Meme is that liberals are squishy grey-area egg-heads who are emotional, weak, indecisive and want to lift everyone up - at my expense! The Brorderian Imperative requires a liberal candidate to say they are rigid and law-upholding, dispensing fair, impartial and tough-minded justice. Again, it matters not one bit if it is true: the test is passed by saying your lines correctly - indeed if you can say them even when they are untrue, all the better (how many lights are there, Picard?)

The press never knew quite what to make of Obama's unwillingness to play this game, because he was in other respects good for sales and a good story. But one outlier is enough, two is a risk to the system. Sotomayor isn't distancing herself from the Liberal Meme and therefore is violating the Broderian Imperative, which the Beltway types find most distressing.

As long as she refuses to follow the script, she should expect no help from the MSM in fending off the long knives from the right, who are - to the delight of the MSM - providing colorful copy and keeping this from getting boring.

As usual, it is striking how little these rightwingnuts know about the law, or at least, will admit to knwo about the law.

In fact, well before the Untied States became independent, the Britsh grappled with the problems creted by inflexible application of legal rules without regard to empathy for the actual human beings involved in cases. The result was a seperate court system--courts of equity--in which litigants could appeal to the King's conscience, rather than the strict letter of the law.

In modern times, and particularly here in the United States, the two court systems have merged--but equitable principles remain in force, and are invoked in a very large percentage of the casees before the courts.

But note--the notion that empathy ought not to play a role in resolving cases would have been regarded as a dangerously retrograde notion in the time of Henry VII

As Judge Sotomayor is being vetted publicly, I am beginning to hope the major news networks and press operations become a bit more discerning in deciding who they interview or allow on air for analysis. It is becoming obvious some who are making their way onto panels, or who are writing for certain publications, are not credible voices or opinion writers - these "pundits" have proven themselves too irrational, too hyperbolic, too partisan, too unhinged, and too dangerous to our bodypolitik to continue to have unfettered access to the public debate.

The time has come to ask just what good Gingrich, Hannity, Limbaugh, Tancredo and their intellectually inferior friends and loved ones have done for the benefit of our nation lately. The answers to such a question may lead to further scrutiny upon these miscreants instead of perpetuating the politics of personal destruction with which they feel so comfortable! -Kevo

What you don't understand, Steve, is that there really is a difference: when Alito and Thomas said they had empathy, it was okay because they were lying; Sotomayor actually appears to mean it, which is completely unacceptable.

Jake, listening or reading Krauthammer can lead to brain cancer! He is a rhetorical polemicist, and gets paid to make shit up! -Kevo

To reinforce shortstop's take, @16:45... There was a letter to the Editor in yesterday's NYT, in which the writer said that Sotomayor wasn't "unqualified"; she was "misqualified" -- *because* of her empathy. According to the writer, she should be sticking strictly to the dry letter of the law as written. I'm absolutely certain that the same letter-writing lady (in VA, we call *every* female over 18 a "lady", no matter what we really think about her) would have found a totally different way of denigrating Sotomayor, had she known about empathy claims made by Alito, et al.

The balls and strikes metaphor would, very wonderfully, be more cogent in describing the role of a SCOTUS justice if they were not trying to find compatibility between a necessarily generalized constitution, layers of precedence, and vaguely written legislation. Comparatively speaking, rocket science is simple, if a justice takes his/her job seriously.

Umpires rarely send people to prison, or to excution. Nor do they make life altering decisions about how to handle juvenile offenders.

In fact on an historical level their decisions don't mean squat.

Judge's decisions do.

I'm not sure which genius thought it was a good idea to launch a war on empathy

Part of the problem is that they're actually incorrectly defining "empathy". they're actually using the word wrongly

What they're raising an outcry about is whether she'll be emotional, whether she'll feel sorry for one or the other parties. That's not empathy, that's sympathy.

is being able to understand someone, to be able to see it from their point of view. But that doesn't meet feel sorry for someone.

And of course the empathy part means she could see if from both parties' points of view - which would be a good thing in a judge.

'But for the grace of God there go I.'

For Republicans, that's code for "I'm entitled."

Thomas was speaking literally. A lot of people he grew up with ended up doing time.

Empathy is a tricky word. Liberals think conservatives have empathy only for conservative interest groups. Conservatives think liberals only have empathy for liberal interest groups.

They're both right to an extent.

That's why politicians and judges referring to "empathy" is often code for "empathy for our folks".

And everyone knows that. This whole thing is a lot of hypocritical posturing. Obama won, and he will pack the court, if he can, with judges who will favor liberal interest groups.

Nothing wrong with that.

that said, it's up to judges to rule within the confines of the law as written, not to in effect create new legislation because the judge feels empathy towards someone but the legislature itself is unwilling to address the issue.

that is a corruption of separation of powers.

'But for the grace of God there go I.'

This is one of the most arrogant things anyone can say, but especially someone who considers himself a believer in God. It assumes that there are some to whom God's grace is available, and others to whom it is not. As Danp said, it's Republican for "I'm entitled." It sounds humble to most ears, but when you think about it, it says there's a distinction between the grace available to the observer and the grace available to the observed; isn't the idea supposed to be that, if there is a God, then grace is available to everyone? So maybe it would be better to say "There but for my lucky breaks, friends in high places, and my ability to say what people in power want to hear go I."

It assumes that there are some to whom God's grace is available, and others to whom it is not.

Actually, it doesn't. Any Christian or Catholic would tell you are wrong. If you're going into the theological realm, please come prepared.

Glad you can divine what Thomas was thinking when he said that. Your projection is amazing.

More like God's grace enabled me to choose to take a different path.

Shit happens in any event. Thank God it just wasn't that shit.

Whew.

shortstop nailed it.

my only quibble is with: "Because the GOP just can't stop itself from race- and gender-baiting, and people do have a problem with that."

It does appear that a critical mass of people have a problem with that at the moment; if the economy doesn't get better, that could change real damn quick.

I'm waiting for someone to point out that being without empathy is what is generally described as a sociopath. That appears to be the demographic that the Republican party is trying to whittle itself down to and it's their party so they can do what they want. But I don't think that's what most Americans want in Supreme Court Justice.

But Sotomayor found the case turned on a narrow point of law,...
This is disconcerting. I distrust Jurists who find on account of "narrow points of law" ...

"ut for the Grace of Dog there I go

By the way, I'm the craziest bat-shit mother fucker to ever, ever makethe high court bitch! So have a little empathy, not for Anita Hill but for my sorry MF'ing ass"

-Clarence

Your appearance on MSNBC was excellent.

In fairness, we should consider the arguments against the judge.

theAmericanist,

Thx for the pointer to Jocks v. Tavernier. I've been reading some bad decisions by Sotomayor, but that by far is the worst I've seen.

Any Christian or Catholic would tell you [...] -- Jake, @20:01

I've always thought that Catholics were, in fact, Christians. But I admit that, as an atheist, I'm not really up on the differences between the various flavours of that particular superstition. Thanks for clearing that up for me.

I must say, having been a baseball umpire, that once the umpire has recognized that he made a bad ball or strike call, and having observed the catcher's and pitcher's (or perhaps, rather the batter's) dismay at the obviously bad call, that umpire will be on the lookout for a next pitch close enough to call it the other way. So perhaps even umpires may experience some empathy on the field - but of course that umpire would ever admit such a thing is possible !

The difference is, it's literally true for Clarence Thomas. He is the type of lower-class dullard who inadvertently breaks laws out of slack-jawed stupidity or gets entrapped and winds up getting a dime dropped on him.