The Supreme Court, All Right or All Wrong? Message Board

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Politics : The Supreme Court, All Right or All Wrong?

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From: TimF	6/3/2009 7:12:11 PM
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Judicial empathy Posted by teageegeepea under Uncategorized [13] Comments The Sotomayor nomination isn’t out of the news yet so people are still arguing over what makes a good judge, and more specifically whether one of those things is empathy. Orin Kerr of the Volokh Conspiracy introduces a distinction between “doctrinally relevant” and irrelevant empathy. He says the former is not only good but necessary. I have no legal training, but I’m not a fan of even that. What is Breyer’s “balancing” talk if not that sort of evaluation of impact? The way I see it, judges are experts when it comes to the law, not “the real world” nor should they be expected to be. The Volokh gang have pointed out how it is the job of legislatures to engage in the sort of “balancing” that Breyer wants judges to do. For a judge to do more than accurately apply the law is to overstep their bounds. This is why I am not a big fan of the “law and economics” field of study which a number of judges have controversially taken lessons in. I’m not saying that L&E is harmful, just that like most people judges don’t need to know that sort of thing and if it comes to the point where such expertise is demanded of a judge, that indicates something has gone wrong. It is true that sometimes the law has been left vague. Legislators can write bad legislation (and may deliberately want to wash their hands of any responsibility) and that is just what I would consider it. Perhaps as more proof of my legal ignorance I find merit in this comment suggesting that judges simply “punt” on issues where the law is not clear. As a reductio, imagine that legislators had simply scribbled illegibly on a piece of paper and called it a law: one would hope no judge would consider the “language” controlling. They may request that the legislature clarify the law, as happened recently in response to the Ledbetter case. If we are to live under the rule of law rather than men, where one can expect it to be applied the same no matter who happens to be judging, such granting of discretion needs to be minimized... entitledtoanopinion.wordpress.com

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